A-175-76
Dame Madeleine Laurent-Algrain (Plaintiff)
(Appellant)
v.
The Queen (Defendant) (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, October 25, 1976.
Enemy property Claim for indemnity Whether custodian
negligent in selling property or acting ultra vires—Period of
limitation—Revised Regulations Respecting Trading with the
Enemy, 1939—Quebec Civil Code, arts. 2261 and 2267.
Property in Quebec belonging to the appellant, a resident of
Belgium, was seized by the custodian named in the Revised
Regulations Respecting Trading with the Enemy, 1939, in
1942, Belgium being a "forbidden territory" within the mean
ing of those Regulations. It was sold by the custodian in 1944
for $6,000. Appellant alleges that it was worth $47,000 and
claims an indemnity of $41,000, being the difference between
the value of the property and the price at which it was sold.
Appellant claims that the limitation of actions for tort is not
applicable because the custodian had in fact carried out an
expropriation. The Trial Judge dismissed the action on the
grounds that the custodian was not acting as an employee or
agent of the Crown.
Held, the appeal is dismissed. If there was expropriation it
took place at the time when the property was seized and the
action was not brought until over 30 years later. However, the
powers of a custodian over enemy property and the property of
residents of a "forbidden territory" are the same although the
reasons for awarding them are different. Appellant's action can
therefore only be based on delict and was out of time long
before the date when it was brought.
APPEAL.
COUNSEL:
P. Ferland, Q.C., for plaintiff, appellant.
J. C. Ruelland, Q.C., for defendant,
respondent.
SOLICITORS:
Pothier Ferland, Q.C., Montreal, for plaintiff,
appellant.
Deputy Attorney General of Canada for
defendant, respondent.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: Appellant is appealing the decision
of the Trial Division dismissing the action for
damages which she brought against respondent.
During the last war, appellant lived in Belgium,
a "forbidden territory" within the meaning of the
Revised Regulations Respecting Trading with the
Enemy, 1939. As a result, the custodian named in
these regulations in 1942 seized a property belong
ing to appellant and situated in Quebec. This
property, which according to appellant was worth
$47,000, was sold by the custodian for $6,000 on
May 26, 1944. Appellant in her action claims an
indemnity of $41,000, that is, the difference be
tween the value of her property and the price for
which the custodian sold it. The Trial Judge dis
missed this action because he felt that the custodi
an was neither an employee nor an agent of the
Crown, so that the latter could not be held respon
sible for the irregularities which he might have
committed.
At the start of the hearing we asked counsel for
the appellant to tell us why the judgment a quo
should not be upheld on the ground that appel
lant's action, brought on May 21, 1974, had then
long since been proscribed (see articles 2261 and
2267 of the Quebec Civil Code).
Counsel for the appellant admitted that the
action would be proscribed if it merely had a
delictual basis, that is, the negligence alleged to
have been committed by the custodian in selling a
property without taking the necessary precautions
to obtain a good price for it. He argued, however,
that his client's claim was subject to the thirty-
year limitation which did not begin to run until the
day on which the property was sold, May 26, 1944.
He maintained that the custodian, by selling the
property, had exercised a power which he did not
possess, and that he thereby in fact carried out an
expropriation. Appellant's claim, he said, must
therefore be put on the same footing as that of
someone whose property has been expropriated
and to whom the Crown refuses to pay the value of
her property.
This argument does not seem reasonable to the
Court. If it were true that, to use the language of
counsel for the appellant, the latter's property was
"expropriated", this expropriation did not take
place at the time of the sale, on May 26, 1944, but
several years earlier when the property was
"allocated" to the custodian. Contrary to what was
argued by counsel for the appellant, we do not
believe that the regulations gave the custodian
different powers over the property of persons resid
ing in forbidden territories than over that belong
ing to the enemy. All that may be said in this
regard is that powers were given to the custodian
over these two categories of property for different
reasons, not that the powers themselves are differ
ent. In our opinion, section 21 of the regulations
allocates these two categories of property indis
criminately to the custodian, who enjoys the same
powers of disposal with respect to each of them.
We are therefore of the opinion that the only
basis that appellant's action can have is delictual.
That being the case, the action had already long
since been proscribed at the time it was brought.
For that reason, the appeal will be dismissed 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.