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The Queen (Plaintiff) v.
Hochelaga Warehouses Ltd., Treitel Enterprises Ltd., Frankel Enterprises Ltd. and Canadian Surety Co. (Defendants)
and
Standard Structural Steel Limited and Hochelaga Warehouses Ltd. (Third Parties)
Trial Division, Noël A.C.J.—Montreal. P.Q., November 27; Ottawa, December 7, 1972.
Practice—Parties—Action by Crown for damages—Claim over for indemnity by defendants—Whether claim over justi- ciable by Federal Court.
The Crown sued F and T for damages following the collapse of a building with damage to the Crown's property. The defendants, alleging that they were entitled to indemni ty from H under a lease and from S under a construction contract, served third party notices on H and S.
Held, on a motion for directions under Rule 1729, the third party notices should be struck out. The Court had no jurisdiction over the dispute between defendants and H and S, which were founded on different causes of action from that raised in the action between the Crown and defendants. Those causes of action were justiciable only in a provincial court.
The Queen v. J.B. & Sons Ltd. [1970] S.C.R. 220; The King v. Consolidated Distilleries Ltd. [1929] Ex.C.R. 101, referred to.
ACTION for damages.
Gilles Ethier for Standard Structural Steel Limited.
J. Greenstein for Hochelaga Warehouses Ltd.
J. C. Smyth for Canadian Surety Co.
A. Letourneau for Treitel Enterprises Ltd.
NOEL A.C .J.—Defendants, Frankel Enter prises Ltd. and Treitel Enterprises Ltd., were sued by Her Majesty the Queen for the sum of $83,414.65 damages following the collapse of a building, or part of a building, belonging to the said defendants, damaging the butter and skim milk stored therein.
94s97—.
Notice was given to the third parties, Stand ard Structural Steel Limited and Hochelaga Warehouses Ltd., on August 15, 1972 by defendants, Frankel Enterprises Ltd. and Trei- tel Enterprises Ltd., alleging that the two afore mentioned companies should compensate them for any liability resulting from any loss or damage which may have been sustained by plaintiff, for the following reasons:
(A) IN RESPECT OF HOCHELAGA WAREHOUSES LTD.:
—by virtue of the lease concluded on December 2, 1968, between the aforementioned defend ants and Hochelaga Warehouses Ltd., the latter company assumed among other obligations, without thereby limiting the same and/or limit ing the obligations to which it is subject under the law, to
(a) guarantee and ensure that the rent pay able and/or paid shall constitute net income to the lessors, and that any charges and/or obligations concerning the premises shall be the exclusive responsibility of the lessee;
(b) maintain the premises in good order, as a reasonably diligent and/or prudent proprietor would do;
(c) obtain at its own expense an insurance policy for its own benefit and that of the lessors, as a means of protecting them against any claims for damages,
whereas on the contrary it neglected to maintain the building and/or the said premises, and in particular, but without any limiting effect, per mitted an undue accumulation of snow on the roof, thereby causing and/or contributing to the collapse of the building;
whereas also at the time the claims were pre sented it neglected either to contact the insurers or to require the latter to assist and guarantee the protection of the said defendants against all such claims.
(B) IN RESPECT OF STANDARD STRUCTURAL STEEL LTD.:
—by virtue of a contract concluded between defendants Frankel and Treitel Enterprises Ltd., it undertook to erect, and in fact erected, the portion of the building which collapsed on or about February 14, 1971, whereas the con struction work was completed on or about May 1969, and consequently the building collapsed, partially if not wholly, within five (5) years of being completed;
—in erecting the steel framework which subse quently collapsed Standard Structural Steel Ltd. did not conform to the plans and specifications submitted, nor to accepted standards, so that the said framework contained a structural defect and did not have the required strength, or that which in any case it ought to have had, and the said structural defect caused and/or contributed to causing the aforementioned collapse.
This motion by defendants is for instructions by the Court as to how the action between defendants and the third parties should be brought in accordance with Rule 1729 of the Rules of this Court. The third parties, on the other hand, object to the giving of such instruc tions and submit that this Court lacks jurisdic tion to hear and decide the causes of action presented by this notice, and ask that it be dismissed.
It is clear that the dispute between defend ants and the third parties is different from that raised in the action between plaintiff and defendants. This dispute is in fact founded on different causes of action, and is based on claims between individuals, over which this Court has no jurisdiction. These causes of action should and may only be decided by a provincial court with jurisdiction in such an action (see The Queen v. J.B. & Sons Ltd. [1970] S.C.R. 220, at pp. 232 and 233. and The King v. Consolidated Distilleries Ltd. [1929] Ex.C.R. 101).
The third party notice is accordingly dis missed and struck out, and the third parties are hereby excluded from this action. They will be entitled to their costs against defendants.
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