January 29, 1953

CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. Knowles:

He is just waiting for an invitation to do so.

Topic:   CROWN LIABILITY
Subtopic:   TORTS AND CIVIL SALVAGE
Permalink
PC
LIB

Stuart Sinclair Garson (Minister of Justice and Attorney General of Canada)

Liberal

Mr. Garson:

Mr. Speaker, this bill is the most far-reaching and is indeed the final step in making the federal crown in Canada liable in tort for damages for which, were it a private person of full age and capacity, it would be liable in respect of a tort committed by a servant of the crown or in respect of a breach of duty attaching to the ownership, occupation, possession or control of property, or in respect of motor vehicle damages sustained by any person by reason of a motor vehicle owned by the crown. The bill also has other purposes to which I shall allude later, but its main purpose is to make the crown, in respect to the matters which I have mentioned, liable to the full extent to which it would be liable if it were a private person of full age and capacity.

It is appropriate, I think, in discussing the principle of this bill to link it with the history and the development of the rules governing claims against the crown for redress in those cases where a subject feels himself aggrieved. In their historic origin our courts were the king's courts which were created to hear and determine suits brought between subject and subject in accordance with the rules of the common law. Since these courts had been created by the king and, in a very real sense, represented the monarchy in the exercise of its judicial function, it was not possible for a subject to sue the king in the king's own courts.

However, once in a while even in those times, subjects had legal claims against the crown for which their only hope of redress was by petitioning the king for justice. Since these petitions involved points of law which the king was not in a position to consider personally, the practice grew up under which he authorized certain courts to consider whether such petitions should be granted, by an order or fiat addressed to his own courts directing in effect: Let justice be done. It was only in this way that issues between the crown and subjects were brought before the courts and there determined in accordance with the rules of the common law.

It was thus that two principles emerged, the first of which was that claims might be asserted against the crown in the form of a petition; the second of which was that such claims could not be entertained until a flat had first been granted. These principles of the English common law were first given statutory form in Canada by this parliament in 1876 when Hon. Edward Blake, the minister of justice under the Alexander Mackenzie government, introduced the Petition of Right Act of Canada to that effect. Until this government introduced a bill in 1951

to abolish the flat, the granting of it continued to be the sole basis upon which petitions of right against His Majesty in the right of Canada could be decided in this country.

Although certain claims might be asserted against the crown in this way, the crown was very far from being in the same position as a private individual in respect of its subjects' claims generally. The only claims that could be made the subject matter of a petition of right were those in which the land, goods or money of the subject were in the possession of the crown or in which the claim arose out of a contract entered into by or on behalf of the crown.

That was the position in 1887 when this parliament enacted that the Exchequer Court of Canada, which had previously been established as the court in which laws relating to taxes and revenues might be enforced, should also be the appropriate forum for the hearing of these petitions of right. This legislation of 1887 also introduced a fundamental change in the law. Prior to that time, as I have said, claims against the crown arose where the lands, goods or money of the subject were in the possession of the crown, or arose out of a contract entered into by or on behalf of the crown. Claims against the crown could not be brought in respect of any tort-that is any wrongful act-not involving a breach of contract for which a civil action would lie. The reason an action could not be brought in respect of a tort or wrong was upon the ground that in law the king could do no wrong and therefore could not be liable in tort. But this act of 1887 gave the exchequer court jurisdiction to hear and determine every claim against the crown arising out of any debt, injury to the person or to the property, or any public work resulting from the negligence of any officer or servant of the crown while acting within the scope of his duties or employment.

Thus for the first time in Canada-and to the great credit of Canada, for the first time in the English-speaking world-actions in tort based upon the one tort of negligence only were permitted to be taken against the crown. I think that it is fitting that for this enlightened legislation we should pay our respects to Hon. John Thompson who was the minister of justice under Sir John A. Macdonald, and who subsequently became Sir John Thompson and prime minister himself.

As an indication of the enlightened attitude of Canada in this respect, it may be noted that it was not until 60 years later that the

Crown Liability

United Kingdom and other commonwealtl countries permitted proceedings against ths sovereign for torts.

With slight amendments from time to time this rule established in 1887 has prevailec until the present day. Actions against th< crown in tort are still confined to negligent although, as I pointed out on a previou: occasion, to say only that they are so con fined may to the layman be misleading as t( their scope unless one points out that a largi percentage of actions in tort-possibly as higl as between 90 and 95 per cent-are action; based upon the negligence of servants of thi crown.

In Canada the law as amended by thi; legislation of 1887 continued substantial!: without change until 1950, when this govern ment introduced the Statute Law Amendmen Act by which it was provided that action might be brought against crown corporation in the provincial courts. This legislation ii itself was a radical departure from existin; law and existing legal theory; for before tha time legal proceedings against the crown ii the right of Canada could only be taken in thi courts of His or Her Majesty in the right o Canada. The 1950 act therefore, in permittinj actions against the crown in the right o Canada to be taken in the courts of Hi Majesty in the right of the provinces, mad' these crown corporations amenable to th jurisdiction of all Canadian courts in mucl the same way as ordinary corporations.

In the following year, 1951, by an amend ment to the Petition of Right Act wi abolished the necessity of securing a fia before proceedings could be brought agains the crown. Proceedings may now be take] against the crown as of right and withou first obtaining the crown's consent.

The bill now before you represents per haps the most far-reaching change of al. Its purpose is to place the crown, in so fa as actions in tort are concerned, in substan tially the same position as a private indi vidual. Upon the passage of this bill th crown will be liable not only for all tort committed by agents or servants of th crown, but also for torts that may be com mitted without the intervention of a servan or agent, namely torts arising out of thi ownership, occupation, possession or contrc of property including motor vehicles. Th list of actions that are generally recognize' as coming within the classification of "torts are as follows: (a) negligence; (b) nuisance (c) trespass; (d) assault; (e) false imprie onment and false arrest; (f) malicious prose cution; (g) libel and slander; (h) deceit; (:

Crown Liability

interference with contract rights; (j) trover and conversion; (k) slander of title; (1) infringement of patent.

Making the crown liable for torts committed by its servants will make the crown liable for those torts I have just mentioned wherever they are committed by a servant while acting within the scope of his duties. Of these as I have already stated, the tort of negligence is the most significant, and next to it that of nuisance.

The extension of the crown's liability for breach of duty arising out of ownership, possession or control of property would make the crown liable as occupier to invitees, licensees and occasional trespassers in accordance with the ordinary rules of law; it would extend to the crown liability for nuisance or negligence committed otherwise than through the medium of a servant of the crown. For example, the crown would be under a duty to prevent injury to adjoining property from a building, from the escape of noxious and dangerous things, from the presence of dangerous things, from interference with riparian rights and, generally, for nuisance and negligence in respect of the management of crown property.

In the above respects Canada is now extending the liability of the crown in Canada in the same manner in which the United Kingdom has extended the liability of the crown in the United Kingdom.

At this point I think I should interject some words of reassurance to the taxpayers of this country. While these provisions will probably result in some increase in the amount payable by the crown to persons injured, it should be noted that many of the claims which will arise under this present legislation are now being paid on an ex gratia basis, notwithstanding that there is no legal liability, because it has been felt that there is a moral one. Therefore it is not expected that the total liability from a financial point of view will be increased too greatly. It is not expected, for example, that the liability of the crown in respect of all the new causes of action against the crown which are created by this bill will be anything like as great financially as those based upon the negligence of the crown's servants.

There would, of course, be no liability in any case where anything was done under the authority of a statute. Nor is it intended to impose liability in respect of the ownership of property unless the crown is, in fact, controlling and administering the property. For example, in the Northwest Territories, and to a lesser extent in the provinces, the federal crown owns wild or unoccupied lands. In respect of such lands it is intended to make

the crown liable only where the crown has, in fact, assumed control and is in some way using or administering the property.

It is also proposed to exclude liability where the crown has abandoned the use of a particular work. For example, the crown might, as a public convenience, construct a wharf in a remote area but, because the need for it no longer exists, the crown might cease to maintain it. It is intended to make provision for a public declaration of abandonment in order that the crown would not be obliged either to continue to maintain the work indefinitely or to demolish it.

This brings me to the second main provision of the bill, which is that it makes applicable to the crown the ordinary laws relating to salvage services rendered in assisting any crown ships or in saving life therefrom or in saving any cargo or apparel belonging to the crown, in the same manner as if the ship, cargo or apparel belonged to a private person. Here again this provision is a counterpart of that contained in the United Kingdom crown proceedings act.

The third main provision of this bill is that permitting small claims in negligence up to a limit of $1,000 to be taken in the district or county courts that would have jurisdiction if the action were between subjects. This will enable the issue to be determined locally and result in a saving of costs, and will enable small negligence claims to be disposed of quickly. All other actions of course will continue to be brought in the Exchequer Court of Canada.

May I say in conclusion that the step being taken in this bill follows logically from the development of our whole legal history and particularly from the measures which we enacted in this present parliament in 1950 and 1951. In all these matters we have to keep in mind two important factors. On the one hand there is the obvious consideration that the citizen as a litigant should have an economical and effective method of pursuing his claim against the crown. Against this must be balanced, however, an equally important consideration, namely that in the interests of the general body of citizens as taxpayers this litigation against the crown should be carried on as economically and efficiently as possible.

This is the third important piece of legislation in this regard which the government has brought forward in the last three years. We have gone into this process gradually in order to make sure step by step that we were providing reforms for the litigant without imposing any undue burdens upon the taxpayer. Our experience with the legislation which we passed in 1950 and again in 1951

in this respect has been very favourable. Our impression is that the present legislation will remove virtually all of the restrictions upon litigants who desire to sue the crown without imposing a new and costly burden upon the taxpayer.

Topic:   CROWN LIABILITY
Subtopic:   TORTS AND CIVIL SALVAGE
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PC

John George Diefenbaker

Progressive Conservative

Mr. Diefenbaker:

Mr. Speaker, I would move the adjournment of the debate and would suggest that, in view of the fact that the hon. member for Eglinton (Mr. Fleming) will not be here tomorrow, it might stand over until the beginning of the week.

On motion of Mr. Diefenbaker the debate was adjourned.

Topic:   CROWN LIABILITY
Subtopic:   TORTS AND CIVIL SALVAGE
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LABOUR CONDITIONS

STATEMENT ON THREATENED RAILWAY STRIKE

LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Right Hon. L. S. St. Laurent (Prime Minister):

Mr. Speaker, if I might have the consent of the house to revert to motions for a couple of moments, I would be glad to announce to you, to the house and to the country that collective bargaining is still an effective instrument to deal with labour relations in this country.

The representatives of the Canadian railways and the representatives of the brotherhood who had been negotiating for some considerable time to settle the renewal and revision of the collective agreement governing their relations have agreed upon terms for the renewal and revision of that agreement; and the instructions that the members of the union would withdraw from service at six o'clock on the 2nd of February are being cancelled at this moment. The railways are also withdrawing the notices of embargoes on shipments of perishable goods.

I think it would be appropriate to add- and I feel that this would be in the name of all the members of this House of Commons- that we are highly appreciative of the publicspiritedness of those who have been negotiating on behalf of the railways and on behalf of the brotherhood. They have fully and magnificently recognized their responsibilities to the Canadian people whose servants they are, as we are, and whose interests are as dear to them as they are to us and to those we represent.

I think they have done a magnificent job, and that it is a credit to Canadian democracy that matters about which there were honest and sincere and pretty widely diverging views could be settled when honest men of good will got together and did their best to discharge their responsibilities to their fellow citizens.

Threatened Railway Strike

That has been done; and I think it is a bright page to be written into the history of labour relations in this country.

Topic:   LABOUR CONDITIONS
Subtopic:   STATEMENT ON THREATENED RAILWAY STRIKE
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PC

Gordon Graydon

Progressive Conservative

Mr. Graydon:

May I ask the Prime Minister (Mr. St. Laurent) if he is in a position to give us, in general, the terms of the settlement arrived at?

Topic:   LABOUR CONDITIONS
Subtopic:   STATEMENT ON THREATENED RAILWAY STRIKE
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LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

I would prefer that that should come from those who have made the settlement. It has been their responsibility, and they have discharged it magnificently.

I can say that there are two points which have been mentioned to me, that perhaps had to be mentioned to me. One was that there is an increase of the order of 12 per cent going into force, with an appropriate retroactive date to be determined by the parties.

There is for a certain group of yardmen, I believe it is, a forty-hour week, to go into effect on the 1st of October next, evidently with adjustments which will have to be made in the wage scale so that the take-home pay will not be seriously affected by that change in the hours.

The adjustments with respect to the application of the forty-hour week are matters upon which there still remain diverging views on the part of the representatives of the men and the representatives of the company. They have both agreed that I am personally-not as Prime Minister, not as head of the government'-but that I am personally to select a person to decide, as referee, what those adjustments will be, both parties agreeing to abide by the decisions of that referee.

As that is a matter which will not require to be implemented before October 1, 1953, both parties told me that there was no immediate urgency in announcing the referee, but that they hoped it might be done within a reasonable time. I was naturally highly flattered by the confidence they both expressed.

I asked them if they had any suggestions. They preferred to make no suggestions, but to leave it entirely to me to make the selection, without any suggestions or recommendations or objections. They said they preferred to have me use my own best judgment in selecting a person to do that for them, and that they were going to be satisfied to abide by whatever adjustment that referee decided was the proper adjustment in the circumstances.

Topic:   LABOUR CONDITIONS
Subtopic:   STATEMENT ON THREATENED RAILWAY STRIKE
Permalink
CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. Stanley Knowles (Winnipeg North Centre):

Mr. Speaker, we of this group would like to join with the Prime Minister (Mr. St. Laurent) in the well-deserved tribute which he paid to the parties who have carried on

Threatened Railway Strike these negotiations, and who have shown the public spirit to which the Prime Minister referred tonight.

I am sure we are all delighted, not only that an agreement has been reached but that it has been reached through the process of collective bargaining, without any outside interference. That is perhaps the most important aspect of the announcement made tonight by the Prime Minister, and we applaud it very happily. We are naturally interested-and I think that goes for all of us-in the details of the settlement. I was afraid at first, when the Prime Minister began to reply to the question of the hon. member for Peel (Mr. Graydon), that he would not be able to give us any of the terms tonight. However, he has been able to give us a good deal of information.

That information does seem to suggest that a basis of settlement agreeable to both sides has been worked out. I wonder if the Prime Minister is in a position to say whether or not the terms agreed upon include any reference to the changes in rules which did, for a long time, stand in the way of a settlement. Is that subject in the category of matters that have been agreed upon, or is it in the category of matters to be dealt with oy the person whom the Prime Minister will name?

Topic:   LABOUR CONDITIONS
Subtopic:   STATEMENT ON THREATENED RAILWAY STRIKE
Permalink
LIB

Louis Stephen St-Laurent (Prime Minister; President of the Privy Council)

Liberal

Mr. St. Laurent:

The only matter to be dealt with by the referee I am to appoint is the matter of adjustment required by the institution of the forty-hour week. There are other matters about which precise decisions have not been arrived at, but the parties have agreed that they trust each other sufficiently to be able to work those out without there being any danger of their interfering with the completion of a collective agreement.

Topic:   LABOUR CONDITIONS
Subtopic:   STATEMENT ON THREATENED RAILWAY STRIKE
Permalink

BUSINESS OF THE HOUSE

LIB

Alphonse Fournier (Minister of Public Works; Leader of the Government in the House of Commons; Liberal Party House Leader)

Liberal

Mr. Fournier (Hull):

Mr. Speaker, tomorrow we will take up Bill No. 44, to protect the coastal fisheries; the resolution in the name of the Minister of Resources andDevelopment respecting the conservation of water resources; also the resolution in the name of the Minister of Resources and

Development respecting the establishment of the historic sites and monuments board of Canada; the resolution in the name of the same minister respecting the revision and consolidation of the Yukon Act; then Bill 47, to amend the Territorial Lands Act; and if these matters are disposed of, we will consider the resolution to amend the National Housing Act.

Topic:   BUSINESS OF THE HOUSE
Permalink

At ten o'clock the house adjourned, without question put, pursuant to standing order.



Friday, January 30, 1953


January 29, 1953