VOL. II.] EXCHEQUER COURT REPORTS. 381 TANCRLDE DMIR SUPPLIANT ; 18E11 Oct 14. AND HER MAJESTY THE QUEEN.. RESPONDENT. Petition of Dight--Injury 'received on Government railway—Negligence— Order for particulars—Practice. Where in his petition the suppliant alleged in general ternis that the injuries he received in an accident on a Government railwaÿ in the Province of Quebec resulted from the negligence of the servants of the crown in charge of the train, and from defects in the construction of the railway, au order was made for the delivery to the respondent of particulars of such negligence and defects. MOTION for particulars of demande in a petition of right. The facts upon which the motion was based are stated in the judgment. October 10th, 1391. Hogg, Q.C. in support of motion : This is a motion for particulars of demande under rule 30 of the Rules of Practice of the Superior Court for the Province of Quebec (1). The petition contains only a bare declaration that the accident happened by reason of the negligence of the crown's servants and defects in the construction of the railway. There is no allegation of the specific acts of negligence, or the particular defects of construction, relied upon by the suppliant. The defendant is not called upon to answer such a declaration as this, and without particulars the court will be unable to determine the issues to be tried. (Cites Lemieux v. Phelps (2) Lapierre v. Granger (3); (1) Wotherspoon'sManual of Pro- (2) M.L.R. 1 S. C. 305. cedwre, p. 237. (3) M.L.R. 5. S. C. 154.
382 EXCHEQUER COURT REPORTS. [VOL. H. 1891 Seligmann v. Young (1) ; O'Meara y. Stone (2) ; The D A u Rory (3) ; Spedding v. Fitzpatrick.) (4) v. THE Belcourt, contra : Qur.Es. The petition is well framed under article 50 C.C. P. Argument of Counsel, for Lower Canada. Under that article all that has to be stated is the cause of action, and the time when and how it arose. Rule 30 of the Superior Court Rules of Practice simply applies to particulars of account, and not to an action for damages. The petition is also well framed under the Ontario practice. (Cites Smith v. Greey (5) ; Niagara Falls Park Commissioners v. Howard (6) ; Mason v. VanCamp.) (7) Ilogg, Q C. in reply : Rule 30 does not distinguish between one kind of demande and another. (Cites McDonald y. Dunn.) (8) BURBIDc+E, J. now (October 14th, 1891) delivered judgment. This, so far as it is necessary to deal with it, is an application for an order for the delivery to the respondent of particulars of the specific acts of negligence and improvidence on the part of the servants and employees of the crown in charge of the Intercolonial Railway, and of the specific defects in the construction of such railway, which it is alleged in general terms in the petition of right caused the derailment of the train and the accident by which the suppliant received the injuries of which he complains. The Petition of Right Act (9) gives a form of petition of right in which the suppliant is directed to state the facts with convenient certainty. Section 21 of The Exchequer Court Act (10) adopts the practice and pro- (1) W.N., 1884, 93. (6) 13 P.R. Ont. 14. (2) W.N., 1884, 72. (7) 14 P.R. Ont. 297. (3) 7 Prob. D. 120. (8) 12 L.C.R. 345. (4) 38 Ch. D. 410. (9) R.S.C. c. 136 Schedule, (5) 11 P. R. Ont. 169. Foran A. (10) 50-51 Vic. c. 16
VOL. II.] EXCIIEQUER COURT REPORTS. 383 cedure of the High Court of Justice in England, so far 1891 as the same are not provided for by that Act or rules D L made thereuuder; and by the 22nd section of the Act the ,r H. E rules of practice and procedure in force in the court QuEEic. when the Act was passed, so far as the same were consis- R.ex®on9 tent with the provisions thereof,were continued in force. Jug usent. These rules contain no direction as to the delivery of the particulars of any claim. The 2nd of such rules prov ides in effect that (except as otherwise provided) the practice, pleadings, evidence, forms and modes of procedure shall, where the cause of action arises in the Province of Quebec, conform as near as may be to those in use in like causes in Her Majesty's Superior Court of that Province. This rule was made in 181G, and it was not until 1 83 that the Quebec Petition of Right Act was passed. Until the latter date it is doubtful if there could have boen said to be any cause like a petition of right that could be prosecuted in the Superior Court of Quebec. Assuming, however, that the effect of the 22 d section of The Exchequer Court Act, and of the 2nd rule of the rules of procedure thereby continued in force, was to adopt in any case in which the cause of action arose in Quebec the procedure prescribed by the Quebec Petition of Right Act, w find that so far as the direction to state with convenient certainty the facts entitling the suppliant to relief is concerned the Quebec Act does not differ from the Dominion Petition of Right Act, except that in the latter the direction is contained in the form of petition given by the Act, while in the former it constitutes a part of the Act itself (1). The Quebec Act goes on to provide that the petition shall be supported by an affidavit of the facts (886b) and that the suppliant shall deposit with the prothonotary a sum of two hundred dollars to pay the costs of the crown if costs are awarded (1) Revised Statutes of Quebec, s. 5976, 886b.
384 EXCHEQUER COURT REPORTS. [VOL. IL 1891 ..,.. ç to it (886c), and that the ordinary delays and rules of ~ DuB L procedure, in so far as they are not incompatible, shall V. THE apply to suits by petition of right (886k). I have not QuEEN. been referred by counsel to any case in the Superior Reasons Court of Quebec in which, under circumstances similar fo r Judgment. to those existing in this case, an order for the delivery of a statement in writing of the particular acts of neg-ligenice complained of was granted or refused. I see no reason, however, to doubt that the considerations upon which the practice in respect to the delivery of particulars is founded are as applicable to the Superior Court of Quebec as they are to other courts. But, however that may be, it appears to me to be clear from the directions contained both in the Dominion and in the Quebec Petition of Right Acts, that the legislature intended that parties seeking relief under such Acts should conform to modern rules of pleading whereby, to prevent surprise or unnecessary expense, each party is, so far as is reasonable, informed of the case he has to meet at the trial. The suppliant is. required to state with convenient certainty the facts that entitle him to relief ; and, while as a mere matter of setting out a cause of action, the general allegations of negligence and defects contained in the petition in this case are sufficient, the crown is, I think, entitled to know the particular acts of negligence and the particular defects in the construction of the railway of which the suppliant complains. If it be that such negligence and defects are inferred from the fact of the accident the suppliant should say so, or if he relies upon specific acts of negligence, or upon specific defects of construction,the respondent is, I think, equally entitled to be put in possession of such information. Nor with the ample powers of amendment possessed by the court is it possible for the suppliant to be prejudiced. If at any time before or even
VOL. II.] EXCHEQUER COURT. REPORTS. 385 during the trial he should become aware of acts of 1891 negligence or defects of construction of which he may D not have given particulars he would be allowed to THE amend. The only question would be as to the terms QUEEN. upon which such amendment ought to be made. The order may be in the form No. 13, Appendix K, of theana &r -ment. English Rules of the Supreme Court, 1883, omitting the part of the order that refers to particulars of the injuries received (which are not asked for), and to the time and place of the accident, which are sufficiently stated in the petition, and adding a direction for particulars of the defects in the construction of the railway of which complaint is made. The suppliant may have thirty days in which to deliver such particulars, and until they are delivered all further proceedings will be stayed. The costs of this application will be costs in the cause. Motion allowed; costs to be costs in the cause. Solicitor for suppliant : P. A. Choquette. Solicitors for respondent : O'Connor, Hogg 4- Bald- erson. 25
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.