T-1831-74
Canadian Federation of Independent Business, on
behalf of itself and in a representative capacity on
behalf of all those persons who are members of
the Canadian Federation of Independent Business
and who suffered an interruption of postal service
between April 18th and April 25th, 1974 inclusive
(Plaintiffs)
v.
The Queen and the Honourable André Ouellet
(Defendants)
Trial Division, Mahoney J.—Toronto, August 13
and 29, 1974.
Postal service—Damages for interruption—Claim against
Crown and Postmaster General—No cause of action in tort
or contract—Statement of claim struck out—Post Office
Act, R.S.C. 1970, c. P-10, ss. 2, 3, 5, 8, 42, 79—Public
Service Staff Relations Act, R.S.C. 1970, c. P-35—Financial
Administration Act, R.S.C. 1970, c. F-10, Federal Court
Rules 330, 419.
For losses arising from the interruption in the Canadian
postal service between April 18 and 25, 1974, the plaintiffs
claimed damages in tort and contract against the Crown and
the Postmaster General. The defendants moved to strike out
the statement of claim as disclosing no reasonable cause of
action.
Held, granting the application: As to the tortious liability
of the defendants, based on the alleged mishandling of an
illegal strike, the claim for detinue was pleaded on the
ground of failure to deliver mail during the interruption of
service, but the statement of claim failed to plead demand
by the plaintiffs or an intention by the defendants to keep
the mail addressed to the plaintiffs; and mere delay was not
detinue. The facts alleged in the statement of claim failed to
support the allegation of conspiracy by the accused against
the plaintiffs, since the damage alleged was a consequence
and not a purpose of the "conspiracy". As for the claim in
contract, the Post Office was a public department and not a
common carrier: Whitfield v. Lord le Despenser (1778) 98
E.R. 1344 at 1349, considering Lane v. Cotton (1701) 91
E.R. 1332 at page 1334; the right and obligation to collect,
carry and deliver mail did not depend on contract but was
laid down by statute. The decisions of the defendants and
the acts and omissions complained of were, in the context of
the statute, clearly decisions of policy and acts and omis
sions in the carrying out of managerial functions. The Post
master General and the officers of the Crown were answer
able for the consequences to Parliament alone and were not
accountable to the plaintiffs.
ACTION.
COUNSEL:
R. Hughes and R. Bromstein for plaintiffs.
E. R. Olson, Q.C., and Mrs. K. Braid for
defendants.
SOLICITORS:
Reuben M. Bromstein, Toronto, for
plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
delivered in English by
MAHONEY J.: This is an application by the
defendants to strike out the amended statement
of claim, in whole or in part, pursuant to Rule
419. While the grounds for the application were
numerous, argument was limited to the proposi
tion that no reasonable cause of action is
disclosed.
The action arises out of an interruption of
postal service between April 18 and 25, 1974.
The defendant, Hon. André Ouellet, was Post
master General of Canada at the material times.
The plaintiffs are described in the style of
cause. The claim is founded in contract and in
tort. The torts alleged are conspiracy, detinue
and negligence in the performance or failure to
perform a duty to the plaintiffs imposed on the
defendants by statute. In addition, breach of
contract and breach of a common law duty as a
common carrier is asserted.
The facts as alleged in the statement of claim
and which, for purposes of this motion, I must
accept as true and provable are:
1. The Plaintiffs do use the mail for business purposes, had
purchased postage prior to the interruption of service which
had not been used and which they could not use during the
interruption and further did not receive delivery of mail
caught in the system and did suffer dâmage as a result of the
interruption.
2. The interruption was a result of an illegal strike of postal
workers that began in Montreal April 10 and spread
throughout Canada.
3. The Defendants obtained an injunction from the Superior
Court of the Province of Québec on April 10 ordering the
employees to return to work. The employees did not obey
the order and the Defendants did not attempt to enforce it.
4. The Defendants negotiated with the strikers' Unions
during the strike.
5. The interruption was the result of dissatisfaction among
the striking workers directly attributable to policies adopted
toward them by the Defendants which the Defendants ought
reasonably have anticipated would lead to the dissatisfaction
and interruption.
6. The Defendants refused to receive mail and, specifically,
sealed street letter boxes in Metropolitan Toronto and
throughout Canada and did not accept mail at post offices
and did not allow mail directed to Toronto to come into that
city. All of the foregoing transpired during the strike and for
several days after the strike itself had ended.
7. The Defendants failed to take alternative action which, it
is said, would have minimized the Plaintiffs' damage such as
enforcing the injunction, firing the employees, suing the
Unions, hiring new employees or subcontracting delivery
services to private businesses.
Dealing first with the assertions of tortious
liability, the conspiracy, negligence and breach
of statutory duty are founded on the coun
tenancing of the illegal strike, the entry into
negotiations during the illegal strike and the
failure to use alternative means available to
resist and deter the strike and general failure to
carry out duties said to be imposed on the
defendants to supply a service to the public by
sections 5 and 8 of the Post Office Act'. The
detinue lies in the failure to deliver the mail in
the system during the interruption.
In considering detinue it is, I think, sufficient
to refer to the text books. Salmond 2 says:
A claim in detinue lies at the suit of a person who has an
immediate right to the possession of the goods against a
person who is in actual possession of them, and who, upon
proper demand, fails or refuses to deliver them up without
lawful excuse. ... the defendant must have shown an
R.S.C. 1970, c. P-14.
2 Salmond on the Law of Torts, 16th ed., at p. 113. See
also: Fleming, The Law of Torts, 4th ed., at pp. 54 and 55.
intention to keep the thing in defiance of the plaintiff.
Neither the mere having the goods in the defendant's
possession nor the mere omission to deliver, in the sense of
taking the goods to the plaintiff, is sufficient to found an
action of detinue.
The statement of claim alleges no demand by
the plaintiffs nor intention on the part of the
defendants to keep the mail addressed to the
plaintiffs. It does not, on its face, allege the
facts necessary to found a successful action in
detinue. Mere delay in delivery is not detinue.
The assertion of conspiracy can be similarly
considered. Fleming 3 says:
. a combination to injure another is prima facie action
able, unless there is some justification recognized by law.
Thus, the critical issue is the object or purpose of those
acting in concert. The test is not what is the natural result to
the plaintiff of such combined action, or what is the result
ing damage which the defendants realize or should realize
will follow, but what is in truth the object in the minds of
the combiners when they acted as they did. It is not conse
quence that matters, but purpose.
The facts alleged in the statement of claim
simply do not support a claim that the tort of
conspiracy has occurred vis-Ã -vis the plaintiffs.
The damage they say they suffered was clearly
a consequence and not a purpose of the "cons-
piracy" they assert and the draftsman of the
statement of claim clearly recognized that when
he advanced the claim in the following terms:
35. ... servants and agents of the Defendant Crown acting
under the authority and direction of the Defendant Ouellet,
combined, conspired, and agreed with the leadership of the
Union unlawfully to further, perpetuate and abet the said
strike and thereby to injure the Plaintiffs in their trade.
Even if the negotiations between the Crown and
the Unions during the course of the strike were
for the purpose of combining, conspiring or
agreeing to further, perpetuate and abet the
strike, I am obliged to take judicial notice of the
fact that, in the context of a nationwide strike,
the injury to any user or group or class of users
3 The Law of Torts, 4th ed., at p. 616.
of postal services could not also be a purpose
but must be a consequence.
Finally, the statement of claim alleges no
facts that would tend to connect the negotia
tions with the proposition that they were under
taken for the purpose of injuring the plaintiffs in
their trade. The connection is not obvious nor,
prima facie, even reasonable. I am unable intel
lectually, without further facts, to bridge the
gap.
The plaintiffs allege the negligent perform
ance and non-performance of statutory duties
giving rise to a cause of action. Whether or not
such a cause of action exists in any case must
depend on the particular statute. It is convenient
to review, at this point, the scheme of the Post
Office Act. This will also be relevant to a con
sideration of whether or not a contractual rela
tionship exists between the Post Office and its
customers and whether it is, at common law, a
common carrier.
The Act creates a department of the Govern
ment of Canada called the Post Office Depart
ment presided over by a member of the Queen's
Privy Council for Canada designated the Post
master General who has the management and
direction of the Department (section 3). 4 He has,
with trivial exceptions, the "sole and exclusive
privilege of collecting, conveying and delivering
letters within Canada" (section 8(1)), arid, in the
exercise of this mandate, may determine what is
a "letter" (section 5(1)(p)). The Postmaster Gen
eral thus has a broad discretion in determining
the extent of his monopoly. The collective
activities conducted under his direction and
control are designated "Canada Post Office"
(section 2(1)).
Operative provisions particularly applicable
to the matters giving rise to this action are:
5. (1) Subject to this Act, the Postmaster General shall
administer, superintend and manage the Canada Post Office
and, without restricting the generality of the foregoing, may
4 R.S.C. 1970, (2nd Supp.) c. 14, s. 26.
(a) establish, manage, operate, maintain and close post
offices, postal stations, postal agencies, sub-post offices
and postal routes;
(b) appoint postmasters and assistants when such
appointments are not otherwise provided for by law; 5
(d) with the consent of the Governor in Council provide
for the door-to-door delivery of mail;
(f) provide and arrange for the erection of letter boxes or
other receptacles at locations as he deems appropriate, in
which mail or mailable matter may be deposited or stored;
(g) cause to be manufactured and distributed for sale
postage stamps .. .
(h) authorize agents to sell to the public postage stamps
(i) install or permit to be installed or erected stamp vend
ing machines and machines for the making or printing of
postage impressions;
(1) establish and maintain a fund derived from moneys
received from postal employees and pay out of the fund
losses sustained by reason of the default or neglect of any
postal employee or mail contractor in carrying out his
duties in any matter related to the Canada Post Office;
(o) enter into and enforce contracts relating to the con
veyance of mail or to any other business of the Canada
Post Office;
(s) pay out of postal revenue losses resulting from fire,
theft or forgery;
(2) Nothing in paragraphs (1)(1) and (s) creates any
liability on the part of Her Majesty to indemnify any
person for any losses or to pay any damages in respect
thereof.
42. Neither Her Majesty nor the Postmaster General is
liable to any person for any claim arising from the loss,
delay or mishandling of anything deposited in a post office,
except as provided in this Act or the regulations.
With minor exceptions, of which section
5(1)(s) is an example, the Postmaster General
has no discretion in the disposition of postal
revenue and the Act provides:
5 It is clear that, in law, the particular employees whose
strike gave rise to this action were employees of the Trea
sury Board not the Post Office, by virtue of the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35.
79. Every Act of Parliament respecting the collection and
management of the revenue, the auditing of the public
accounts and the liabilities of public accountants, applies to
the Canada Post Office, to postal employees and to persons
collecting or accounting for postal revenue, ...
Postal revenue is clearly public money within
the purview of Part II of the Financial Adminis
tration Act 6 .
I set forth sections 5(1)(l) and (s) in full as
they were the only examples cited in argument,
and I found no others, where the Act gave the
Postmaster General the right to indemnify an
aggrieved user of postal services. I exclude, of
course, special services such as registered and
insured mail which were not raised in the
amended statement of claim.
The statute does not impose on the defend
ants duties to the plaintiffs in respect of the acts
and omissions complained of giving rise to an
action in tort.
The propositions that the defendants have a
contractual obligation to provide postal service
in consideration of the purchase of postage and
a common law duty, as a common carrier, to
pick up and deliver mail were both dealt with in
Whitfield v. Lord le Despenser 7 by Lord Mans-
field. Referring to the dissenting opinion of
Lord Chief Justice Holt in Lane v. Cotton 8 , he
said:
The ground of Lord Chief Justice Holt's opinion in that
case, is founded upon comparing the situation of the post
master to that of a common carrier, or the master of a ship
taking goods on board for freight. Now with all deference to
so great an opinion, the comparison between a post-master
and a carrier, or the master of a ship, seems to me to hold in
no particular whatsoever. The post-master has no hire,
enters into no contract, carries on no merchandize or com
merce. But the post-office is a branch of revenue and a
branch of police, created by an Act of Parliament. As a
branch of revenue, there are great receipts; but there is
likewise a great surplus of benefit and advantage to the
public, arising from the fund.—As a branch of police, it puts
the whole correspondence of the Kingdom (for the excep
tions are very trifling) under Government, and entrusts the
management and direction of it to the Crown, and officers
6 R.S.C. 1970, c. F-10.
7 (1778) 98 E.R. 1344 at p. 1349.
s (1701) 91 E.R. 1332 at p. 1334.
appointed by the Crown 9 .
Nothing has been suggested to me that would
tend to persuade me that if the Crown or the
Postmaster General were not, at common law,
common carriers two hundred years ago, they
are today. Likewise, the Post Office Act seems
clearly to establish a system basically similar to
that described by Lord Mansfield. The Post
Office functions as a department of government
providing a public service and its revenues are
public revenues. The right and obligation to
collect, convey and deliver mail to or for a
particular user, or group or class of users, do
not depend on contract. They are granted and
imposed by Parliament speaking by statute.
The decisions taken by the defendants and
the acts and omissions complained of were, in
the context of the statute, clearly decisions of
policy and acts and omissions in the carrying
out of managerial or operating functions. The
Postmaster General and other officers of the
Crown are answerable only to Parliament for
the consequences thereof and, in particular, the
defendants are not accountable to the plaintiffs
in this Court in respect thereof.
Notwithstanding the considerable measure of
ingenuity that went into its drafting, the amend
ed statement of claim does not disclose a
reasonable cause of action. The defendants are,
therefore, entitled to an order striking it out in
its entirety and to their costs.
There was a second motion by the defend
ants, pursuant to Rule 330, to rescind the order
made herein by Cattanach J. on June 17, 1974.
That order was made ex parte in so far as the
defendant Ouellet was concerned and added
him as a party and permitted amendment of the
statement of claim as a consequence. In view of
my decision on the other application this motion
became academic; however, I should indicate
9 It is apparent that the word "police" is used in one of its
archaic meanings embracing the entire- concept of organized
government or civil administration. The Oxford English
Dictionary.
that had I not come to the conclusion I did on
the application to strike the statement of claim,
I would not have granted the second order
sought. There will be no costs in respect of the
second motion.
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.