A-106-72
The Queen (Appellant)
v.
Georgette Larochelle and Gaëtan Théberge, in
their quality as testamentary executors of the
estate of the late Emile Couture (Respondents)
Court of Appeal, Jackett C.J., Hyde and St-Ger-
main D.JJ.—Montreal, March 14, 1974.
Practice—Prescription—Quebec law applicable—Amend-
ment to petition permitted—Rule 496(2)—Quebec Civil Code,
Articles 2224 and 2261.
Appeal from an interlocutory judgment of Pratte J. [1972]
F.C. 1137. The respondents were executors of the estate of
a petitioner who had sought damages from the Crown,
appellant, for the refusal of the Crown's agent, the Canadian
Radio-Television Commission (CRTC), to grant him a
licence for the construction and operation of a television
service in an area of the Province of Quebec. Negligence in
the treatment of the petitioner's application was alleged
against officers of the CRTC.
Pratte J. held that the petition, as based on the negligence
of the CRTC officers, could not be sustained. He permitted
amendment of the petition to plead the negligence of certain
employees of the Department of Transport, who had taken
part in the matter.
On appeal from this decision, the Crown contended that
the amendment was barred by prescription under the law of
the Province of Quebec.
Held, the appeal is dismissed. The applicable law is that of
Quebec, and, although the departmental communications on
which the petitioner relied may have emanated from
Ontario, all of these, to the knowledge of their authors,
concerned the petitioner's operations in Quebec. Under
Article 2261(2) of the Civil Code, the action would be
prescribed after two years. But, under Article 2224, second
paragraph (added by S.Q. 1959-60 c. 98, s. 4) the filing of a
judicial demand created a judicial interruption in the running
of the prescriptive period. Even without that paragraph, the
amendment was permissible as it did not change the nature
of the action. The petitioner was seeking recovery of dam
ages allegedly caused by the negligence of Crown servants.
The amendment was necessary to extend to servants of the
Crown in the Department of Transport the negligence
alleged against servants of the Crown in the CRTC.
Moran v. Pyle National (Canada) Ltd. (1974) 43 D.L.R.
(3rd) 239; Distillers Co. (Bio -Chemicals) Ltd. v. Thomp-
son [1971] 1 All E.R. 694; Cordova Land Co. Ltd. v.
Victor Brothers Inc. [1966] 1 W.L.R. 793 (Q.B.); Page
v. Churchill Falls (Labrador) Corp. Ltd. [1972] F.C.
1141; Direct Motor Express Ltd. v. Sinkovitch [1969]
Q.B. (Que.) 695; Arnault v. Jacques [1969] Que. S.C.
77, and La Ville de Montréal -Est v. Léonard (1937) 62
K.B. (Que.) 524, considered.
APPEAL.
COUNSEL:
Denis Bouffard for appellant.
William Hesler for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Ogilvy, Cope, Porteous, Hansard, Marler,
Montgomery & Renault, Montreal, for
respondents.
The following are the reasons for judgment
delivered in English by
HYDE D.J.: Appellant is appealing from an
interlocutory judgment of the Trial Division—
Mr. Justice Pratte—rendered on May 18, 1972'
granting respondent's motion for leave to amend
his petition of right claiming damages of $154,-
295.16 allegedly caused him by agents of the
Crown, in particular the Canadian Radio-Televi
sion Commission (CRTC), which had refused to
issue him, carrying on business under the firm
name of Belle Rediffusion Enrg., a licence to
construct and operate a "Community antenna
television service" in a certain area in the Prov
ince of Quebec, its Secretary F. K. Foster and
its Chief, Applications and Licensing Bureau,
H. L. Corbett "in misrepresenting the status of
your Petitioner's undertaking before the said
Commission and allowing those misrepresenta
tions to continue until August 16, 1968" (see
paragraph 18, petition of right—Appeal Book
p. 5).
This judgment was given pursuant to an
application made following a suggestion in Mr.
Justice Pratte's reasons for judgment handed
down on April 7, 1972 in which he said (Appeal
Book p. 94):
If I confine my attention to the allegations of the petition of
right and to the arguments submitted at the hearing, accord
ing to which the negligence said to have caused the damage
was that of which Foster and Corbett were guilty in writing
the letter of May 7, I must therefore dismiss the petition of
[1972] F.C. 1137.
right. In so doing, however, I would have the feeling of
displaying a strict legalism and not resolving the real dispute
existing between the parties, for the evidence shows that
suppliant was the victim of a mistake, that that mistake
consisted in believing that the licence granted him by the
Minister of Transport in March 1968 was valid, or in believ
ing that that licence would be renewed almost automatically
by the C.R.T.C., as is usual in the case of renewal of a
validly issued licence. And while, as I have said, this mis
take was not caused by the letter which the C.R.T.C. sent to
suppliant on May 7, 1968,. it can certainly be claimed
(though I do not wish to express an opinion on this point),
that it was caused by the negligent acts allegedly committed
by the employees of the Department of Transport in sending
suppliant, on March 26, 1968, a licence which they should
have known was invalid, and implying that the Minister of
Transport was renewing this licence after April 1, 1968. It
could perhaps also be contended that it was the duty of the
C.R.T.C., in so far as it knew, or ought to have known that a
licence had been issued to suppliant for the period from
April 1, 1968 to March 31, 1969, to make clear to him that
that licence was invalid.
He then concluded as follows: (op. cit. p. 94).
Because of this, and taking advantage of Rule 496(2), I
shall not give judgment immediately in this case, so that
suppliant, if he sees fit, may submit a motion for permission
to amend his pleadings and reopen the hearing. If, however,
such a motion is not presented within thirty days, I shall
give judgment in the manner already indicated.
Respondent, within such 30 days, moved to
amend his petition of right to allege negligent
acts committed by certain employees of the
Department of Transport. This motion was
granted by Mr. Justice Pratte on May 18, 1972
and it is this judgment which is the subject of
this appeal.
Appellant contends that the amendments pro
posed allege new causes of action which are,
under the law of Quebec applicable to this
aspect of the case, prescribed after two years
(Art. 2261(2) Civil Code), and that the Court's
power to allow an amendment is subject to such
prescription. I am of opinion that apart from
such prescription the amendments proposed
would be permissible.
Although we did not call on counsel for the
respondent I incline to the view that on this
point Quebec law is applicable, having regard to
the recent decision of the Supreme Court of
Canada in Moran v. Pyle National (Canada)
Ltd. (1974) 43 D.L.R. (3rd) 239.
Mr. Justice Dickson, speaking for the Court,
states (p. 250) that:
Generally speaking, in determining where a tort has been
committed, it is unnecessary, and unwise, to have resort to
any arbitrary set of rules.
such as "... the place of acting and the place of
harm theories ...". He then goes on to formu
late a rule based on the recent decision of the
Privy Council in the thalidomide case of Distill
ers Co. (Bio -Chemicals) Ltd. v. Thompson
[1971] 1 All E.R. 694 and the earlier decision in
Cordova Land Co. Ltd. v. Victor Brothers Inc.
[1966] 1 W.L.R. 793 (Q.B.) in the following
terms:
... where a foreign defendant carelessly manufactures a
product in a foreign jurisdiction which enters into the
normal channels of trade and he knows or ought to know
both that as a result of his carelessness a consumer may well
be injured and it is reasonably foreseeable that the product
would be used or consumed where the plaintiff used or
consumed it, then the forum in which the plaintiff suffered
damage is entitled to exercise judicial jurisdiction over that
foreign defendant. This rule recognizes the important inter
est a state has in injuries suffered by persons within its
territory. It recognizes that the purpose of negligence as a
tort is to protect against carelessly inflicted injury and thus
that the predominating element is damage suffered. By
tendering his products in the market place directly or
through normal distributive channels, a manufacturer ought
to assume the burden of defending those products wherever
they cause harm as long as the forum into which the
manufacturer is taken is one that he reasonably ought to
have had in his contemplation when he so tendered his
goods.
While in the present instance we are not deal
ing with manufactured goods the rule is equally
applicable by analogy. The communications on
which respondent now desires to rely may all
have emanated from Ontario but they all, to the
knowledge of their authors, concerned his oper
ations in Quebec which were "substantially
affected" thereby if his contentions are
accepted. 2
This being the case I now turn to the law of
Quebec and in particular to Article 2224 Civil
Code in chapter V which deals with the causes
which interrupt or suspend prescription. After
2 One may also refer to the recent decision of this Court
in Page v. Churchill Falls (Labrador) Corp. Ltd. [1972] F.C.
1141 where this question is discussed but not decided.
stating that the filing of a judicial demand cre
ates a civil interruption it adds in the second
paragraph:
Such interruption shall continue until final judgment and
shall be effective for every party to the action for any right
and recourse arising from the same source as the demand.
This paragraph was added in 1960 to settle
conflicting judgments on the subject. The
Quebec Court of Appeal in Direct Motor
Express Ltd. v. Sinkovitch [1969] Q.B. (Que.)
695 relying on this provision permitted an
amendment to an action, taken seven years ear
lier for damages to the plaintiff's vehicle, to
allege and claim additional damages for bodily
injuries occasioned in the same accident.
In Arnault v. Jacques [1969] S.C. (Que.) 77
Mr. Justice Albert Mayrand allowed an amend
ment, to a damage action, made after the expiry
of the short prescription period to allege the
fault of employees of the defendant (Art. 1054
C.C.) in addition to that of the defendant him
self (Art. 1053 C.C.) as originally pleaded. Rely
ing on the same paragraph of Art. 2224 C.C. he
said at p. 80:
[TRANSLATION] The Court considers that plaintiff's right of
action, based on the fault of employees of defendant, pro
ceeds from the same source as the initial action, which was
itself based on the personal fault of defendant. The common
basis of the action is the accident complained of by plaintiff.
For this reason, service of the writ on defendant, less than a
year after the accident, interrupted the prescription.
Even without paragraph 2 of Art. 2224 C.C. it
would seem that the amendments proposed
would have been permissible. In La Ville de
Montréal -Est v. Léonard (1937) 62 K.B. 524
(Que. C.A.) Mr. Justice Barclay, dissenting on
other grounds, approved an amendment to an
action, taken under both Arts. 1053 and 1054
C.C. charging fault of certain specified
employees of the defendant, which would have
added to the declaration at the conclusion of the
enquête [TRANSLATION] " or by other persons
under his control". Barclay J. said (at p. 544):
The appellant maintains that the motion to amend should not
have been granted, as it added a new right of action at a time
when such a right was prescribed. If in fact the amendment
had that effect the appellant's contention would be upheld,
but such is not the case. The respondent's action is based on
Articles 1053 and 1054 C.C., which latter article declares
that every person "is responsible not only for the damage
caused by his own fault, but also for that caused by the fault
of persons under his control". The article gives a number of
cases of such responsibility, the last of which is: "Masters
and employers are responsible for the damage caused by
their servants and workmen in the performance of the work
for which they are employed". The addition of the words,
"ou par d'autres personnes sous son contrôle", does not
change the nature of the action or, as this phrase has been
interpreted, the basis of the claims. It merely gives a wider
definition and was, in my opinion, unnecessary and of no
particular significance.
The amendments allowed by the judgment a
quo did little more than this. While the petition
in its original form stated, as already noted, that
the damages were due to the fault and negli
gence of the CRTC and two of its officers it is
quite clear that it was based on cumulative fault
of such agents of the respondent and of those
responsible for the regulation of television
broadcasting operations, before the CRTC was
set up, namely the Department of Transport and
its officials. In fact petitioner alleges in para
graphs 4 and 5 certain communications received
from that Department and the two licences
issued by it the continuing effect of which con
stituted the basis for the alleged misrepresenta
tions on which the claim is founded.
Reading this petition as a whole it is evident
that petitioner is seeking to recover damages
allegedly caused him by servants of the Crown,
whether servants of the Department of Trans
port or of CRTC, on the basis that their acts
showed a lack of care in respect of petitioner
which constitutes actionable negligence. The
reason why an amendment was necessary is that
the particulars of negligence given, which
directed the course of the trial, limited the
issues tried to lack of care on the part of CRTC
servants.
I am, therefore, in full agreement with the
concluding statement of Mr. Justice Pratte's
judgment of May 18, 1972 reading, at page
1140:
By bringing an action suppliant interrupted the prescription;
in other words, he took the necessary step to protect the
claim which by his petition of right he is seeking to have
enforced. Suppliant is not seeking to amend his petition of
right so as to assert a right other than that on which
prescription was interrupted; he only wants to allege new
facts establishing the existence of the same right.
I would, accordingly, dismiss this appeal with
costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.