T-3664-73
Mrs. G. Simons (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Lacroix D.J.—Montreal, June 11,
August 24, 1974.
Posta! service—Forwarding silk screen prints—Parcel
insured—Container badly damaged on arrival—Gross negli-
gence—Exoneration provisions of statute inapplicable—Post
Office Act, R.S.C. 1970, c. P-14, s. 42—Special Services and
Fees Regulations, Part VIII, s. 22(5)(b).
The plaintiff forwarded, through the Post Office, a parcel
containing four original silk screen prints and insured for
$200. The parcel was received with the "outside torn and
bent—badly damaged". The defendant Crown relied on the
rule against liability in section 42 of the Post Office Act and
on the provisions in the Regulations as to fragile items.
Held, fragile objects, which suffered damage during the
course of normal handling and proper transportation, would
give an opening for the application of exoneration provi
sions, but here the damage was in no way related to the
fragility of the articles sent by the plaintiff. The damage was
the result of the manipulation of the package in transit by
the employees of the Post Office. This manipulation, in view
of the evidence, amounted to gross negligence (faute lourde)
which rendered inapplicable the statutory provisions for
exoneration. The plaintiff should have judgment for $200.
Glengoil S.S. Co. v. Pilkington (1897) 28 S.C.R. 146;
Regina v. Grenier (1899) 30 S.C.R. 42; Canadian North
ern Ry. Co. v. Argenteuil Lumber Co. (1918) 28 Que.
K.B. 408; Copping v. The King [1949] Rev. Leg. 61
(Ex. Ct., Angers J.); Lavoie v. Lesage (1939) 77 Que.
S.C. 150; Vachon v. McColl Frontenac Oil Company
Limited S.C. (Que.) 71-975, June 28, 55; affirmed,
[1956] Que. Q.B. 814, considered.
ACTION.
COUNSEL:
Plaintiff in person.
Yvon Brisson for defendant.
SOLICITORS:
Plaintiff, Pointe Claire, P.Q.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
delivered in English by
LACROIX D.J.: On the 28th day of August
1973, by her declaration which was filed on the
10th September 1973, the plaintiff alleged that
she forwarded a parcel containing four (4) origi
nal silk screen prints to Carleton University, in
Ottawa, which parcel was insured in the amount
of $200.00.
The plaintiff submits that said parcel arrived
at its destination in a damaged condition, result
ing from lack of proper care by the employees
of the Post Office, and as a result of this care
lessness she suffered damages to the amount of
$200.00, which she claims from the defendant.
By its amended statement of defence dated
the 11th January 1974, the defendant invoked
the dispositions of section 42 of the Post Office
Act, R.S.C. 1970, c. P-4, which declares that
"Her Majesty ... is [not] liable to any person
for any claim arising from the loss, delay or
mishandling of anything deposited in a post
office ...". Furthermore, the defendant claims
the benefit of the dispositions of subsection (7)
of section 7 of the Postal Corporate Policy or
Regulation numbered 413-3-12 covering the
case of fragile items which the defendant sub
mits was the case of the items mailed by plain
tiff. Referring also to Special Services and Fees
Regulations (Part VIII, section 22(5)(b) and con
secutively) the defendant denies all liability.
The plaintiff Mrs. G. Simons was not repre
sented by attorney and as she, on her own
behalf, explained the facts, the Court required
that she be sworn in as a witness on the facts.
She stated that in many instances in the past,
she had sent to various exhibitions, apparently
in Canada and elsewhere, items of the same
nature and packed in exactly the same kind of
container which she describes on page 6 of her
evidence as follows:
I packed the prints, these are the four (4) silk screen prints,
and I make them in editions of anything from four (4) to
twenty (20) and they are in exhibitions, in galleries every-
where in Canada, these are the four (4), and I packed them
in this carton, I put inside this corrugated paper here, this
yellow corrugated paper with a sheet of this white paper
between each print and then I taped that enclosure into this
and I took this enclosure into this, taped it shut, and I
wrapped it up with this paper which is made by Domtar to
wrap their cartons, it is very, very, it is made for that
purpose
Further in her evidence on page 15, the plain
tiff describes the nature of the package and its
solidity:
BY THE COURT:
Q. Are these the originals that were sent?
A. Oh yes, these are the ones—if you want to put them
right now and jump on them and hit it with a hammer
you'll see it is very hard, it is hard like a rock ... it
must have been something enormous that fell upon it,
it is impossible that they broke like that, I sent dozens
of them and they weren't broken—how could they
unless something very sharp and heavy came down on
it, it must have been something that came down with a
terrible blow.
This package was exhibited in Court, was not
filed on record because the attorney for the
defendant admitted that the prints were
damaged.
After preparing these prints in the manner
above described, they were given to the Post
Office and insured for the sum of $200.00. A
duplicate copy of the receipt given to the plain
tiff by the Post Office is filed as exhibit D-1.
This receipt, which constitutes one of the ele
ments of the defence, stipulates that "fragile or
perishable articles are not insured against
damage".
On May the 8th 1974, Mrs. Simons (page 8 of
her evidence) declared, without any objection
by the defence or any contradiction, that the
text of the declaration made by Carleton Uni
versity to the authorities of the Post Office on
the form which was sent to them for the pur
pose of the inquiry in the present matter was as
follows:
Q. When received did it bear any traces of injury—state
what
and they wrote:
A. Outside torn and bent—badly damaged.
When the case was taken under advisement in
Montreal, the Court declared that if further evi-
dence was deemed necessary, a reopening of
the case would be ordered; this is why after
reading the notes and the evidence, such re
opening was ordered for June the 10th. The pur
pose of this reopening was mainly to re-examine
more thoroughly the state and condition of the
package or container in which the prints had
been sent to Ottawa.
The reopening took place in Montreal on the
10th June 1974 after giving notice to the inter
ested parties and after requiring Mrs. Simons to
bring to the Court the container which she
described in her evidence, and which she
brought to the Court at the first hearing, and
which unfortunately was not filed as an exhibit.
At the hearing on the day of the reopening of
the inquiry, when Mrs. Simons was requested to
produce the container in which she had sent the
prints to Ottawa, she discovered that they were
returned to her in a replacement package, so
that the Court could not have the opportunity to
see and examine the original container which
was described as being "torn and bent and badly
damaged".
On pages 3 and 4 of the evidence given on the
10th June by Mrs. Simons, it is obvious that on
May 8th Mrs. Simons, when she exhibited in
Court a container, thought that it was the origi
nal in which she had sent the prints which had
been returned to her by Carleton University, but
unfortunately that was not the case. The evi
dence which was offered to the Court as to the
original container is the one given by Mrs.
Simons on May 8th to which we have referred
previously, and on the 10th June Mrs. Simons
wanted to file the exhibit P-3, a photocopy of
the form originating from the Post Office and
which would have been sent to Carleton Univer
sity for the purpose of inquiry.
An objection was made to this evidence on
the ground that it was hearsay evidence, and
such evidence was received under reserve. This
document emanating from the defendant itself
was signed by Mr. Fraser, executive officer at
Carleton University, and the attorney for the
defendant was willing to accept that a question
naire could be sent to this Mr. Fraser to verify
his declaration, accepting at the same time that
his answers could be filed on record as being his
evidence the same as if it had been heard in
Court.
First of all, the Court thinks that the objection
does not seem to be well founded, because the
evidence offered is not one really emanating
from the plaintiff but really and truly from the
defence itself, which apparently gave to Mrs.
Simons a copy of the result of its inquiry made
on its own official form at Carleton University.
Such evidence coming from the defendant itself
cannot be classified as hearsay, but is only the
production of information given to the plaintiff
by the defendant.
The Court will then allow the production and
the filing of this exhibit P-3 together, as accept
ed by the attorney for the defendant, with the
letter of Mr. Fraser sent to Mr. Brisson on the
23rd August 1974. This evidence clearly con
firms the first fact that the container was strong
enough for shipment, and that the prints should
have arrived undamaged, and secondly that it
did actually arrive with the outside of the con
tainer "torn and bent and badly damaged".
During the hearing, the Court made some
remarks as to the essence of this case which
first appeared to be whether the objects sent by
mail were fragile or not. These verbal observa
tions were not complete, because the essence of
this case is not limited only to the fragility of
the objects sent by mail, but also to the interpre
tation to be given to the clause of exoneration
contained in the receipt of insurance produced
as exhibit D-1 and also to the interpretation of
the dispositions of section 42 of the Post Office
Act and of the Postal Corporate Policy to deter
mine whether these legal dispositions find their
application in a case of this nature.
Referring to the application of the law, the
defence submits that the items sent to Ottawa
were fragile and consequently no damages are
payable by the Post Office in such a case.
The real question we think is: were the dam
ages resulting from the fragility of the items
sent by the plaintiff or were they caused by an
outside intervention during the handling of this
container or package by the employees of the
Post Office?
There is no doubt that fragile objects or per
ishable articles which deteriorate and suffer
damages during the course of a normal handling
and proper transportation would give an open
ing to the application of the exoneration clause,
because it seems that the cause of the damages
would lie in the nature or fragility of the items
or articles, and therefore would not have any
relation to the responsibility of the Post Office.
Thus the same reasoning applies in law when
it clearly appears that the damage results from
the improper handling of the parcel or contain
er, and that no damage would have been caused
without this improper handling. In other words,
to apply a legal doctrine which is now well
accepted, can a clause of exoneration of respon
sibility in a contract or in a law find its applica
tion where there is gross negligence (faute
lourde)?
On the facts and the uncontradicted evidence,
especially the one that was verified at the re
opening of the inquiry, the Court must come to
the conclusion that the damage does in no way
seem to appear to be related to the nature or the
fragility of the objects or articles sent by Mrs.
Simons, that is the four (4) silk screen prints
sent to Carleton University, but the damage is
the result of the manipulation of the package or
container in transit by the employees of the Post
Office. This manipulation in the face of the
evidence cannot be described or qualified other
wise than gross negligence or faute lourde, if we
refer to the description of the container when
received at Carleton University with its "out-
side torn and bent—badly damaged" (P-3).
The doctrine and jurisprudence concerning
gross negligence or faute lourde is well estab
lished, and I hereunder give some excerpts of
some of these decisions.
These extracts are from judgments which I
humbly submit, represent the principal basic
' See Vachon v. McColl Frontenac Oil Company Ltd.
Que. S.C. No. 71-975 dated June 28, 1955.
principles which should be applied in cases of
this nature to differentiate a clause of exonera
tion from liability in a contract from gross negli
gence or faute lourde and which read as follows:
[The learned judge incorporated the original French text but,
because the plaintiff was English speaking, he made a free
translation of the text as follows: Ed.]
Perrault, in his work Des stipulations de non-responsabilité
(paragraphs 175 and 176) comments on the decisions of the
Courts on this question and brings to light, particularly in
paragraph 176, the distinction that should be made between
a light or involuntary fault and gross negligence or faute
lourde:
176.—Before the decision in Glengoil SS. Co. v. Pilking-
ton, our Appeal Court had always declared null and void
the clauses of non-responsibility or exoneration. Must we
now still follow this jurisprudence? Hon. Mr. Justice
McDougall, in 1936, in the case above referred to (74 C.S.
p. 451 at page 455) seems of the opinion that one cannot
exonerate himself from his felonious or unlawful respon
sibility resulting from his personal act. Must this theory be
recognized?
I think that we can accept the principles set down by the
Supreme Court in the Glengoil SS. Co. case in Regina v.
Grenier by the Appeal Court and in the case of Canadian
Northern Ry. Co. v. Argenteuil Lumber Co. in order to set
aside and not follow anymore the jurisprudence of the
Appeal Court prior to 1898. When the responsibility of a
person is the result of a quasi offence or quasi-délit that is
a light fault which does not amount to gross negligence or
faute lourde. We believe that this responsibility can be
rejected or set aside by a clause of exoneration without
distinguishing whether it is the debtor's fault or that of his
employee.
There is nothing against public order for a person to
provide for protection against one's possible inattention or
distraction or his lack of skill.
We see nothing against public order, in this solution, in
theory it is true, of the problem. It seems to us that these
clauses of exoneration intended to protect a person
against the consequences of his personal act, should be
held as valid in cases of light or involuntary acts.
The appreciation of the degree of the fault will vary
according to the circumstances. It will belong to the Court
to decide whether the involuntary personal act or fault is
light enough so that one can exonerate oneself from it by
a contract or agreement.
The respect of such a contract or agreement between the
parties cannot however extend to the granting of a protec
tion which would cover an absolutely felonious offence act
having the character of gross negligence or faute lourde.
Granting such a protection would amount to recognizing the
right to commit an offence or a criminal act and, in many
instances would itself be equivalent to an act against public
order.
The Honourable Mr. Justice Angers (of the Exchequer
Court) who made a complete study of this problem in
Copping v. The King (1949 Revue Légale, p. 61) refers to
the elementary lectures on French Civil Law by Colin and
Capitant, where these authors study the question. "Would it
be permissible for a party to a contract to stipulate that he
would not be responsible for the inexecution of his obliga
tion when such inexecution would result from a cause for
which he is responsible?"
Mr. Justice Angers notes that after having indicated that we
must not confuse this question with the insurance policies
that we take as a protection against the faults that we may
commit, the authors (Colin and Capitant) add: "After having
made this observation, let us come back to this question.
First of all, it is clear and evident that a debtor (in a
contract) cannot, in advance exonerate himself from the
consequences of the inexecution of his contract or obliga
tion, inexecution which would be the result of ill will,
unwillingness or fraud".
If such a legal principle was accepted, it would amount to
allow a person in contractual matters to bind himself to do
something, and to stipulate at the same time that said person
would not be responsible if he omits willingly and voluntari
ly to do it. The Courts have no right to accept or sanction
such a contract agreement or stipulations in contractual or
"delictual" matters.
This is why, the large majority of the decisions on this
question show us that the Courts admit the validity of a
clause of exoneration when it refers to a quasi-offence
(quasi-délit), because in such cases there might be negli
gence, error, inattention or distraction but there is not
intention to be hurtful or to do harm, whilst such intention is
an essential element of an offence.
This is why the Courts do not recognize the validity of an
exoneration clause in the case of offences because as men
tions Perrault (Volume above quoted No. 170 p. 155): "It
would allow someone to agree that he may intentionally
commit an act forbidden by law, without being liable or
responsible towards the person who suffers from such an
offence."
Without elaborating further, to make such an affirmation,
we particularly rely upon Lalou (Traité de la responsabilité
civile, 1949, 4th Edition, pages 301 et seq.). We find the
same text in Lalou's 6th Edition, 1962 Nos. 518 et seq. We
see there that the equipollence between faute lourde or gross
negligence and dol that is deceit or fraud is not admitted.
The authors teach as a matter of fact, that faute lourde or
gross negligence may exist without bad intention by its
author.
Mr. Justice Pratte, in the case of Lavoie v. Lesage (77
C.S.Q. p. 150), had already analyzed the juridical meaning
of such a clause of exoneration and stated that "even if such
a clause of exoneration could free a debtor from certain
responsibility in matters of quasi-offences (quasi-délit), it
would be without any effect on the responsibility resulting
from his faute lourde or gross negligence ...".
Lalou, in his book already quoted above, on page 280 refers
to Pothier who sees a faute lourde or gross negligence "in
the fact of not giving to the affairs of others, the care that
the less careful and most stupid persons, would at least give
to their own affairs."
These principles, as already mentioned above,
have been applied in various cases and particu
larly in a judgment delivered by the undersigned
(C.S. Québec No. 71-975, 28th June 1955,
Vachon v. McColl Frontenac Oil Company Lim
ited. This judgment was affirmed by the Appeal
Court [1956] (Que.) Q.B. p. 814).
THEREFORE FOR THESE REASONS, the Court
comes to the conclusion that the plaintiff is
entitled to claim the amount of damages;
The Court wishes to indicate that this file was
completed on August the 24th only by the put
ting on record of the last documents;
WHEREFORE the Court does maintain the
action of the plaintiff and CONDEMNS the
defendant to pay to the plaintiff the sum of
$200.00 without costs, the plaintiff not being a
member of the Bar, but with the legal expenses
actually incurred for the ends of the present
case as taxed by the Registrar.
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.