164 EXCHEQUER COURT REPORTS. [VOL. III. 1892 THE CORPORATION OF THE CITY ! SUPPLIANTS ; Nò v . 4. OF QUEBEC AND HER MAJESTY THE QUEEN.. RESPONDENT. Injury to property on a Public Work—Negligence of Crown's officer or servant-50-51 Vic. c. 16. s.16 (c.)-33 Vic. c. 23—Liability—Remedy. The Crown is liable for an injury to property on a public work occasioned by the negligence of its officer or servant acting within the scope of his duty. That liability is recognized in The Exchequer Court Act, s. 16 (c), but had its origin in the earlier statute 33 Vic. e. 23. 2. Prior to 1887, when The Exchequer Court Act was passed, a petition of right would not lie for damages or loss resulting from such an injury, the subject's remedy being limited to a submission of his claim to the Official Arbitrators, with, in certain cases after 1879, an appeal to the Exchequer Court and thence to the Supreme Court of Canada. 3. It is not the duty of an officer of the Crown to repair or add to a public work at his own expense, nor unless the Crown has placed at his disposal money or credit with instructions to execute the same. He must exercise reasonable care to know of the condition in which the public work under his charge is, and be must report any defect or danger that he discovers. It does not follow front the fact that a public officer does not discover a defect in, or a danger that threatens, a public work under his charge, that he is negligent. To make the Crown liable in such a case it must be shown that he knew of the defect or danger and failed to report it, or that he was negligent in being and remaining in ignorance thereof. The Sanitary Commissioners of Gibraltar v. Orfila, 15 App. Cas. 400 referred to. The injury complained of by the suppliants was caused by the falling of a part of the rock or cliff below the King's Bastion at the citadel in Quebec, in the year 1889. The falling of the rock was ' caused or hastened by the discharge, into a crevice of the rock, of water from a defective drain, constructed and allowed to become . choked up while the citadel and works of defence were under the control of the Imperial authorities, and. before they became the property of the Government of .Canada. The existence of this drain
o`
VOL. III.] EXCHEQUER COURT REPORTS. 165 and of the defect was not known to any officer of the latter Gov-1892 ernment, and was not discovered until after the accident, when-a THE CoR-Careful enquiry was made. In .the year 1880 an examination of r ORATION the premises had been made by careful and capable men, one of OF THE CITY whom was the city engineer of Quebec, without their discovering OF QUEBEC its existence or suspecting that there was any discharge of water . THE from it. The surface indications, moreover,' were not such as to QUEEN. suggest the existence of a defective drain. The water that came statement out lost itself in the earth within a distance of four or five of Facts. feet, and might reasonably have been supposed to be a natural discharge from the cleavages or cracks in the cliff itself. Held, that there was no negligence on the part of any officer of the Crown in being and remaining ignorant. of the existence of this drain and of the defect in it. Qucere, whether the place where the accident happened was part of the public work I Semble, the Crown may be liable although the injury complained of does not actually occur on, i.e. within the limits of, a public work. MOTION for nonsuit upon the ground that suppliants had failed to make out a primâ facie case within the allegations contained in their petition of right (L). By their petition of right the suppliants alleged as follows :- 1. " That for a number of years past, Your Majesty has been and still is proprietor in possession of the lots of laud known by the Nos. 2263, 2304, 2305, 2306, 2307, 2308, 2312, 2313, 2314, 2315, 2316, 2320, 2321, 2322, 2323 and 2327 on the official cadastre for Champlain ward of the said city of Quebec." 2. " That the said lots form a high, steep and rocky cliff extending from the place commonly called Duf-ferin Terrace," southward to opposite the citadel, with a short slope at the foot thereof, along a street called Champlain street." 3. " That the said Champlain street has been opened there and used by the public for over a century." " 3a. Thè lots of land herein above mentioned and (1) NomE.—This case came before ' way of demurrer. For the re-the court at a previous date by port thereof see 2 Ex. C. R. 253.
166 EXCHEQUER COURT REPORTS. [VOL. III. 1892 described by the cadastral numbers form part of the T$ oR_ citadel of Quebec, are used, and have, for a long time PORATION OF THE CITY previous to the facts herein alleged,, been used by Her OF QUEBEC Majesty as a work of defence and fortifications, and are THE and were a public work of Canada." QUEEN. " 3b. As such works of defence and public works and Statement fortifications, the said lots were and,. for a long time of Face. previous to the facts herein alleged, have been under the special care and superintendence of certain of Her Majesty's officers, servants and employees, whose duty it was to keep the said lots in a good state of repair, and who were charged with doing all the necessary work and acts to maintain the said lots in such a manner as to render them useful as works of defence without rendering them dangerous to surrounding private property." " 3c. In the exercise of their duties and acting within the scope of their authority, Her Majesty's said officers, servants and employees have, within ten years previous to the facts herein alleged, continuously and without interruption, negligently and carelessly done divers other works and acts, and have done carelessly and negligently other works and acts by which the solidity of the cliff or rock was greatly impaired from time to time, and by reason of which finally a portion of the said cliff or rock, as hereinafter alleged, gave way and fell into the said Champlain street." " 3d. While so acting in the exercise of their duties and within the scope of their authority, Hèr Majesty's said officers, servants and employees, who were, as aforesaid, bound to maintain the said cliff, rock, fortifications and public work in a good state of repair and usefulness to the country as a work of defence, and at the same time in a state of safety for the surrounding private property, while they were, as aforesaid, doing acts which greatly, from day to day, impaired the
VOL. III.] EXCHEQUER COURT REPORTS. 167 solidity of the said rock or cliff, negligently omitted to 1892 do any acts or take any precautions to guard against TH o E x-slides or the falling of the said rock or cliff or portions PO 0 T HE C Îm thereof unto the surrounding property." OF QUEBEC " 3e. The falling of the said large portions of rock, as THE hereinafter mentioned, is completely due to the acts, QUEEN. faults, commissions and omissions of Her Majesty's said statement of Facts. officers, servants and employees, in the exercise and fulfilment of their duties as such." 4. "That during the last ten years, your Majesty's officers, servants and employees, in the exercise and fulfilment of their duties as such, have negligently and carelessly done and caused to be done, and have clone and caused to be done negligently and carelessly to the said cliff certain works which have had the effect of breaking the flank side thereof.' 5. " That your Majesty's officers, servants and employees, in the exercise and fulfilment of their duties as such, negligently and carelessly continued the daily firing of guns over the said cliff after it was apparent that such firing contributed to the splitting of the rocky surface of the said. cliff." 6. "That during the last ten years, your Majesty's officers, servants and employees have negligently failed to do, to the said property the proper and convenient and necessary works to prevent it from becoming dangerous, and also to prevent accidents from the sliding of pieces of rock." " 7. That owing to carelessness, want of precautions and gross negligence of your Majesty's officers, servants and employees in the exercise and fulfilment of their duties as such in doing works which ought not to have been done and in not doing what was necessary to be done to prevent the said property from becoming dangerous, it is now averred that on or about the nineteenth day of the month of September, one thousand
168 EXCHEQUER COURT REPORTS. [VOL. HII. 1892 eight hundred and'eighty-nine, a very large portion of THE R- rock fell from the flank-side of the said rock or cliff, and PORATION OF THE C breaking' into pieces' 'formed an enormous heap which ITY OF QUEBEC totally blockaded the said Champlain street on a con- T y H ' E siderable length and rendered almost impossible the QUEEN. communication between the southerly and the north-statement erly portions of the said street." or Facts. <' 8. That the said Champlain street is the only street running between the said cliff and the river St. Lawrence, and that at the place where the accident occurred the space between the said street and the river St. Lawrence is so narrow that there is no interval left between the said street and the wharves on the • beach of the said river St. Lawrence." " 9. That since the nineteenth day of September last the said Champlain street has remained obstructed by the said heap of stones and rock." " 10. That the said city of Quebec has in the said street under the said heap of stones its water and drainage pipes, and that in the case of breakage of the said pipes, or of necessity to replace or repair the same, the presence of the said heap of stones would occasion to the city of Quebec, expenses amounting to a considerable sum of money." "11. That to protect the said part of the street and its surroundings against the return of similar accidents in the future, it would be preferable to leave where it is the said heap of stones, and to make round Champlain street to the east of the said heap of stones, and to remove the said water and drainage pipes into the new line of the street." • " 12. Than immediately after the accident your Majesty's officers, servants and employees were made aware of the state of things aforesaid, and were requested by the said city of Quebec to afford means to meet the emergency."
VOL. III.] EXCHEQUER COURT REPORTS. 169 " 13. That your Majesty's officers, servants, and em- 1892 ployees, in the exercise and ' fulfilment 6f their THE GDR-duties as such, have neglected and refused to make the o N f THEx 0 I TY works urgently necessitated by the said accident ;'the op QUEBEC said city of Quebec has been obliged to make for the T$E said works certain expenditures for the payment and re- QUEEN. imbursement of which it has a right 6f. action against statement' of Facto. your Majesty." " 14. That to clear near and around the said heap of stones what was necessary to clear at once, in oyder to prevent other damage, and to make a temporary road, the said city of Quebec has expended a sum of six thousand and five hundred dollars." " 15. That your Majesty's officers, servants and 'employees have been summoned to remove from the said Champlain street the stones and other stuff fallen from your property, and to put the said street in its former state, but your Majesty's officers, servants and' employees have unjustly refused to do so." "16. That should the said heap of stones be left upon the street, and the said Champlain street run eastward - thereof, that would cost about as follows, to wit : To remove and replace the said water and drainage pipes as aforesaid, a sum of five thousand dollars ; for the cost of land or right of way for the new part of the said Champlain' street, twenty thousand dollars ; to make the said street, including the cost of a retaining wall on the river side, 'eight thousand dollars. " " 11. That the said city of Quebec has a right of action against Your Majesty to enforce the removal from the said Champlain street of the said stones, earth and other stuff fallen as aforesaid from the said property of your Majesty upon the said street,and to have it declared by the said court, that, in'default of clearing the said Champlain street at the said place and of putting again the said street in the :same state and condition as it
170 EXCHEQUER COURT REPORTS. [VOL. III. 1892 was before the said accident, it shall be the right of THE COR- the said city of Quebec to cause to be made, at the raxATzoN OF THE (;TTY costs and expenses of your Majesty, the necessary works OF QUEBEC for that purpose, unless your Majesty should prefer to THE pay to the said city of Quebec the sum of thirty-three QUEEN. thousand dollars to enable the said city to purchase statement the land required for the opening of a new portion of or Faete. Champlain street, and replace therein the said water and drainage pipes, and all other necessary works appertaining thereto." "18. Your suppliants, therefore, humbly pray that, for the reasons and considerations aforesaid, it may be ordered by this honourable court that the said city of Quebec is entitled to receive and to be paid and reimbursed by your Majesty the sum of six thousand and five hundred dollars expended as aforesaid, and that your Majesty shall, within such time to be specified by the said order, remove and cause to be removed from the said Champlain street, in the said city of Que-bec, all stones, earth or other materials or things which have, on or about the nineteenth day of September last (1889), fallen upon the said street from the property of your Majesty as aforesaid, and to put the said street in the same state and condition as it was before the accident aforesaid, and that in default of so doing by your Majesty, it shall be the right of the said city of Quebec to remove' all the said obstructions at the costs and expenses of your Majesty ; and should your Majesty declare at once your desire to leave all the said obstructions in the said street so as to run the said street eastward of the same, that your Majesty be adjudged to pay to the said city of Quebec the said sum of thirty-three thousand dollars for the causes and rea-sous aforesaid, the whole with costs." To the petition the following defence, in substance, was pleaded by the respondent :—
VOL. III.] EXCHEQUER COURT REPORTS. 171 " 2. Her Majesty's Attorney-General admits the 1892 truth of the allegations contained in the 2nd and 3rd THE Goa- paragraphs of the amended petition of right." FORATION OF THE CITY " 3. Her Majesty's Attorney-General denies the or QUEBEC truth of all the other paragraphs of the said amended THE petition of right." QUEEN. " 4. Her Majesty's Attorney-General denies that the Statement Facia. lots of land in the first paragraph of the amended of petition are or ever were a public work of Canada, as alleged in paragraph 3a of the petition, and further denies that there is or ever was any duty incumbent upon Her Majesty or upon her officers, employees or servants to do any work upon or in respect to the said lots of land for the purpose of keeping them in. repair, or for any other purpose, as is alleged and set out in paragraph. 3b of the amended petition." " b. In answer to paragraphs 3c, 3d, 4, 6 and 7 of the amended petition, Her Majesty's Attorney-General says, that any work which may have been done by Her Majesty's officers, employees or servants upon or in respect to the said lots of land was so done and performed with the view to support and strengthen the rock on the said cliff, and did not in any way tend or contribute to loosen the rock or facilitate its fall." " 6. Her Majesty's Attorney-General, in answer to the allegations contained in the fifth paragraph of the amended petition, says that the daily firing of guns from the citadel at Quebec over the said cliff was and is a lawful and proper act on the part of Her Majesty's officers, servants and employees, and that they, in the discharge of their duty, duly and properly fired the said guns without any negligence or carelessness on their part, and Her Majesty's Attorney-General, while denying that the said firing of guns in any way contributed to the splitting of the rocky surface of the cliff as alleged, says that even if the said firing had such effect,
172 EXCHEQUER COURT REPORTS. [VOL. III. 1892 Her Majesty cannot be rendered liable for the injury THE COR- to the the suppliants which, it is alleged, happened by HEC r a r reason of the falling of rock from the said cliff." OF T OF QUEBEC " 7. Her Majesty's Attorney-General for a further THE defence to the said petition df right says that the slide QUEEN. of rock from the said cliff was a fortuitous event and statement was the result of the natural position, wear and dete- of Facet"' r i oration of the said rock, and was not the result or effect of any act of commission or omission on the part of Her Majesty's officers, employees or servants in connection with the said lands." " 8. Her Majesty's Attorney-General further says that the suppliants though well aware of the decay and deterioration of the said rock, contrary to their duty in • that respect, neglected to take the proper precautions ' to protect their street and property against any slides or falling of the said rock, in consequence 'whereof and by reason of their negligence and carelessness, portions of the rock on the said cliff were allowed . and permitted to fall and come upon the said Champlain street in the petition mentioned which is the claim and cause of complaint of the suppliants herein." " 9. For a further defence to the said petition of right Her Majesty's Attorney-General says that the injury alleged to have been suffered by the suppliants, and the claim and cause of action set out in the said petition is the blocking up of a portion of Champlain street in the city of Quebec ' with a large quantity of rock which, it is alleged, fell or slid from the cliff' adjacent to the said street, through the negligent acts of the officers, employees and servants of Her Majesty in the performance of their duty or through the negligent omission to perform works and acts which it was their duty to perform; but Her Majesty's Attorney-General alleges that if any action will lie against Her Majesty for damages resulting from the negligence of Her
VOL. III.] EXCHEQUER COURT REPORTS. officers, servants or employees while acting within the scope of their employment, which is not admitted but denied, it will only lie where the injury to property has o happened on. a public work, and Her Majesty's Attor- ne Y- General says that as the inju the suppliants in their petition of right happened on the said Champlain street in the city of Quebec, which Ar is not a public work of Canada, no action will lie against Her Majesty therefor, and the same benefit from this Objection is claimed by the said Attorney-General as if he he had formally demurred to the said petition of right." The case was tried at Quebec, on November 2nd, 3rd and 4th, 1892. Casgrain, Q.O. (A.-G. P.Q.), Pelletier, Q.C. and Q.C. for the suppliants ; Cook, Q.C., .Pentland, .Q.C. .and respondent. . At the conclusion of the suppliants' evidence, Q.C. for the respondent moved for a nonsuit :— It has not been shown that the part of' the cliff from which the rock and débris fell is a public work, or part of a public work, and,. therefore, the suppliants have not made out a prima facie case. Nor has it been shown that there was any negligence on the part of any of the employees of the Crown. There was no indication on the surface of the existence of a choked drain, alleged to have been the cause of the accident. (Cites Sanitary Commissioners of Gibraltar v. is no officer, so far as the evidence shows, who is charged with the duty of superintending this work, and the case is, therefore, without the scope of the provisions of section 16 (c) of 50-51 Vic. c. 16. There is no officer employed by the Crown whose . duty it (1) 15 App. Cas. 400. • 173 1892 T H $E o p zE C T_sr OF QUEBEC ryco p m plained of b . y T '~ x '' E QUEEN. gument of Counsel, Flynn, Hogg, Q.C. for the Hogg,' The Orfila) (1). There
174 EXCHEQUER COURT REPORTS. [VOL. III. 1892 was to discover such defects as might have existed in THE COR- this drain. Mr. Baillairgé was employed by the Crown PORAT iCOIThY OF THE for the special purpose of making a report upon the OF QUEBEC state of the premises (and it will be admitted that no v. THE better man could have been engaged for the purpose) QuEEir. and he made a most skilful examination, and his o A f rgument report exonerates the Crown from all imputation of Counsel. negligence. Now, as to the position of the suppliants in respect to claiming a remedy under the statute 50-51 Vic. c. 16. The accident happened, it is true, since the passage of the statute, but its cause must be traced to a date prior to the Act, and there is no retroactive effect to be given to such Act. (Cites The Queen v. Martin) (1). Cook, Q.C. following : No case has been made out that would show liability even between subject and subject. No authority can be cited either from the French or English law to show that the owner of a cliff or hill of rock is bound to prop it up to keep it from falling. Again, it is not a public work where the slide occurred. Looking at the French version of the provisions of section 16 (c) of 50-51 Vic. c. 16, the construction in favour of the Crown is still stronger than in the English version : it must be sur un ou vrage public. There was no employee acting within the scope of his duties or employment, and guilty of negligence therein ; there was no special officer whose duty it was to oversee, and who had charge of, these premises. The principle involved in this case is discussed in Mersey Docks Trustees v. Gibbs (2). Again, the drain was not visible, nor was its condition at all apparent to the Crown's officers or servants. A charge of negligence cannot be successfully based upon such a state of affairs (1) 20 Can. S. C. R. p. 240. (2) L.R. 1 H.L. 93.
VOL. III.] EXCHEQUER COURT REPORTS. 175 Pelletier, Q.C. for the suppliants : It is satisfactorily 1892 proved that the locus in quo is a public work. It has THgE . ôa- also been established that the Crown had been notified PORATION OP THE CITY of the dangerous character of the premises before the OF QUEBEC occurrence of the slide, t t is true that the filling of THE the crack in the cliff was done in a proper way, but QUEEN. no body ever went down one of the man-holes to argn,..ei.t, of Co inee l . see if they were in good or bad order. (Cites The Queen v. Williams) (1). The. witness Baillairgé made his report as an engineer acting at the request of the Crown, not as the city engineer. It is quite possible he never went near the King's Bastion. Had he been there and seen the grating he would have undoubtedly been led to discover the drain and its defective condition. It was his duty to inquire where all the water coming from the trenches was going. It was also his duty to examine the rock outside the citadel. The Crown, however, did not put into effect the suggestions he did make. It would be a natural inference to draw from the fact that the outlet of the drain' was not working that the body of the drain had become defective. Flynn, Q.C. following : There are two kinds of negligence, one of omittendo and the other of committendo. If the accident was the result of a cas fortuit, then it was a matter of omittendo, the ommission to do something that should have been done. This defect in the drain has had the effect of changing the whole nature of things on the property. It is- no justification .for the Crown to say it was •not aware of thé defect. (Cites Art. 553 C.C.L.C.) Servi-tudes are apparent or not apparent. This drain is a servitude not apparent. The law puts on the shoulders.of the Crown the responsibility of the accident. ..(Cites Sirey : Recueil des lois et arrets, 1856) (2). Between adjoining owners, the one holding the land on the (1) 9. App. Cas. 418; (2) Pp. 470, 471, 472.
176 EXCHEQUER COURT REPORTS. [VOL. III. 1892 higher level would be responsible for injury arising to THE COR- his neighbour from something done or happening on of T$E C~ Y his land. It is established by the evidence that a cer- oN QUEBEC tain branch of the Militia Department has charge v. THE of the public military works and fortifications. The QUEEN. statute (1) entrusts the Minister of Militia with the care Arm Co .. n i, n n % rn el t of . a nd management of such premises. It is not necessar y that a special officer", under the Minister, be shown to have had charge of this drain. The Government bought this property in 1877 and took it subject to all its appurtenances. There was a drain upon it which was defective, and they are responsible for the damages thereby caused. (Cites Jones on Negligence of Municipal Corporations) (2). The maxim that the " King can do no wrong " has practically no bearing upon this class of cases now. We have no longer a prerogative Government. It is in the interests of justice that the case be proceeded with. Hogg, Q. C. in reply : There is no obligation upon the Government to keep an officer constantly employed in superintending this drain. The suppliants have failed to make out a primû facie case upon the evidence produced. BURBIDGE, J.--I am of opinion that the case has not been made out and that the motion must prevail. The petition is brought to recover damages for injuries to the suppliants' property caused by a landslide from a portion of the cliff or rock on which the citadel here is constructed. Now, I think there can be no doubt that the citadel itself is a public work. That depends, of course, upon the construction -Of a number of statutes. You will (1) R.S.C. c. 41, secs. 4& 6. (2) P. 292.
VOL. EXCHEQUER COURT REPORTS. 177 find the definition in The Public Works Act, 1867, The 1892 Official Arbitrators' Act, and in The Expropriation Act THE Coll-in The Revised Statutes, and also in .The Expropriation orHEC r Act of 1889 ; and there may be other Acts in which it OF QUEBÉO is declared that works of defence and fortification are V. THE public works. Q,FEEIC. But whether or not the 'portion of the property fe ô:n where the accident occurred is part of a public work JuNKRInt• in this sense may be open to some question. I shall, however, assume for the purposes of this case that it is a public, work ; that the place where the injury oc- curred is part of the works of defence, and therefore a public work. As counsel have stated, I have held in the demurrer in this case that for an injury to property on a public work, resulting from the' negligence of its officer or servant while acting within the scope of his duty, the Crown is liable. Undoubtedly that liability is recog- nized in The Exchequer Court Act, in section 16, clause (c) ; but it is not my view, and I do not agree with Mr. Cook, that the liability was created by that statute. Clearly, it was recognized ; but it appears to me that it rests upon the earlier statute of 1870, the statute 33 Vic. c. 23, which relates to the Official Arbitrators, and which, for the first time, allowed the submission to them of a claim against the Crown for death or injury happening on any public work. Mr. Cook is quite right in saying that the word " negligence " first occurs in the statute of 1887 ; but in my view the words there used limit rather than enlarge the liability of the Crown, if it be not true that they do not do anything more than define a limi- tation implied in the Act of 1870. I also agree with Mr. Cook that prior to the passing of The Exchequer Court Act there was in such a case no remedy against the Crown by petition of right. 12
178 EXCHEQUER COURT REPORTS. [VOL. III. 1892 That is settled by McLeod's Case (1) and McFarlane's THE co R _ Case (2); but, at the same time, the subject injured had PURATION OF THE C y I TY a remedyby a submission of hi s claim to the Official OF QUEBEC Arbitrators. It is said that that w-as a proceeding TUE which the Crown allowed to go on or not as it saw fit, QUEEN. but the same may be said of a reference to this court ; and if you will examine the statutes, you will see with for Judgment. respect to this class of cases—and now I am distinguishing them from the case in which the reference was for report only—the cases were submitted for hearing and determination. To hear and determine is all that any court can do. There is also this additional fact, that from 1879 to 1881 there was an appeal from the Official Arbitrators to the Exchequer Court, and from the Exchequer Court to the Supreme Court ; and both courts were seized of the case as completely as they could be seized of any other case. And I do not know how proceedings of that kind can he said to differ in any way from proceedings in this court by reference of the claim against the Crown. For these reasons I do not accept Mr. Cook's view, that the liability of the Crown, in a case such as this, rests upon The Exchequer Court Act; and, therefore, I need not follow him through the conclusions which he drew from that proposition. With reference to the contention that there can be no liability where the injury does not happen on a public work, I have only to repeat what I said during the argument, that the construction seems to me somewhat narrow. It would, I think, exclude cases which come within the meaning of the statute. Take, for instance, the case which was mentioned of the blasting of a rock on a public work, where it happened that through the negligence of an officer some one was injured beyond the actual limit of the public work. (1) 8 Can. S. C. R. 1. (2) 7 Can. S. C. R. 216.
VOL. III.] EXCHEQUER COURT REPORTS.. 179 Could it be fairly contended that the injured person. 1892 could not maintain his claim because he was not at THE R- the time on the public work 2.. •YORATION OF THE CITY But without being understood to express a con- or QUEBEC sidered opinion upon that question, which, I have no THE doubt, will be argued fully in the court of appeal, I QUEEN. will dispose of it for the present.in the suppliants' Reasons for favour. YudgInent. That brings us to the question of negligence ; and so far as misfeasânce is concerned, I do not think there has been any case made out. The only witness who pretended to say that the works executed for the protection of the cliff were improperly done was Michael Costello. I believe he said that he did his work well, but he thought what was done contributed to the accident rather than prevented it. I do not attach much importance to Costello's opinion, in view of the other evidence that we have of witnesses who were undoubtedly capable of speaking upon the matter ; and I am satisfied on that ground that the measures which were taken were neither imprudently undertaken nor negligently carried out. I was not on this point pressed very much by Mr. Pelletier or Mr. Flynn to find that there . was any actual misfeasance, and, speaking for myself, 1 do not think there was any. I think the works undertaken, so far as they went, were works which were proper in themselves and were carried out . with reasonable care. As to . that, there is another thing to be borne in. mind, and that is, that the works which were constructed did not, under the evidence as presented, contribute in any way to the accident. The accident, so far as the evidence goes, was occasioned or at least hastened by the discharge of the water from the drain which has been so much spoken of. Now, this drain was built very many years. ago, while the property was in charge of the War Depart- I2/
180 EXCHEQUER COURT REPORTS. [VOL. II1. 1892 ment and when the Crown was represented by the THE CoR- Imperial authorities. For anything they did then, the I'ORATION OF THE C Y IT Crown in the ri g g ht of Canada cannot be held liable. I Of QUEBEC have no right, sitting in this court, to take into con- y. TEE sideration any act done by any officer of the Imperial QUEEN. Government with reference to the work in question. nenaons I for think, also, the evidence shows that the choking up dudguaent. occurred during the time the War Department was in occupation and before the property came into the possession of the Crown as represented by the Government of Canada, which, in respect of a large portion of the property, occurred in 1877, by virtue of the statute 40 Vic. c. 8, and, in regard to the rest of the property, by the deed from the Honourable John Hearn in 7880. With reference to the question of non-feasance, I agree with the view which Mr. Hogg and Mr. Cook put forward, that no officer of the Crown is under any duty to repair or to add to a public work at his own expense, nor unless the Crown has placed at his disposal money or credit with instructions to execute the repairs or the addition. In that sense there is no evidence here of any officer who was charged with any such duty, and being so charged, neglected to perform his duty. The truth of the matter is, with regard to the drain, that no one knew of its existence until after this accident had occurred and minute inquiry was made into its causes. And it seems to me that the suppliants must fail, unless there was some officer or servant of the Crown whose duty it was to know of the existence of this drain, of its choking up, and to report the fact to the Government, and who was negligent in being and remaining in ignorance of the drain and of the defect. Now, so far as the Minister of Militia was concerned, Mr. Flynn pressed the argument strongly that he had a duty under the statute in respect of works of defence
VOL. III.] EXCHEQUER COURT REPORTS. 181 and fortifications generally, and consequently in respect 1892 to this drain ; but it would. be unreasonable to expect THoE n- that the Minister of Militia should himself come upon P°RATION OF THE (iITY the ground, in the administration of the affairs of his OF QUEBEC Department, and cause the drain to be dug up and . TRE examined. He would only do this through his officers. QUEEN. Therefore, I do not see any reason to charge him with R C n s ignorance of a defect which was never reported to him " (411;"' by any officer who was under him. There is some evidence that the commandant of the citadel had . . general charge of the property ; hut I shall refer to that matter later. Apart from this evidence of the general charge of the commandant, there is no evidence, I think, of any person who had any duty in this re- spect, unless it was Mr. Baillairgé, or Captain Imlah ; and they had no duty, except in respect of the exami- nation and report which they were asked to make in 1880. Assuming that Mr. Baillairgé and Captain Imlah were officers or the servants of the Government in respect of their employment to make their examina- tions and reports, it is quite clear that they failed to discover the existence 'of this drain and the defect that was in it. But there is no question raised in this case of the capacity of either of these gentlemen or of their carefulness. I think there is nothing to suggest that any better men could have been sent to do the work. In addition to his employment, Mr. Baillairgé had the interest of a citizen of Quebec and of the city engineer of Quebec ; and I cannot conceive that any person could have been sent who would have been more likely to exercise reasonable and proper care, or who was more capable of exercising reasonable and proper care, than Mr. Baillairgé. It is quite clear, I think, that there were at the time no indications on the ground which would lead him to suspect that there 'was a defective
182 EXCHEQUER COURT REPORTS. [VOL. IlI.. 1892 , drain discharging its waters into the inner crevice and THE COR- accelerating the accident which unfortunately hap- PORATION OF THE CITY perred in 1889. OF QUEBEC Now, I think the same can be said with regard to v. THE Captain Imlah, although we have not so much evid- QUEEN. ence with regard to his employment and to his duty Reasons to make a minute search and inquiry ; but I think for Judgment. there is nothing to suggest that either of these gentlemen were careless in making the respective examinations to which I have referred. I take it, that although there is some evidence of the . discharge of water at the place where the drain was broken, discovered subsequently to the happening of the accident, that previous thereto and before special attention had been directed to it, the discharge was not sufficient to suggest to any one that there was a broken drain there. It was said by one of the witnesses that all the water that came out of it lost itself in the earth in four or' five feet ; and situated, as it was, any one might have believed that the water was a natural discharge from the cleavages or cracks in the rock of the cliff. For that reason, I think there were no such indica- tions as would make it the duty of either Baillairgé or Captain Imlah--assuming that they were officers charged ivith this duty—to make a further investigation and examination of this drain and to open it up and see what itc condition was. It does not follow from the mere fact that they did not discover the defect that they were negligent. That is settled by the case of The Sanitary Commissioners of Gibraltar v. Orfi la (1), and in the view which I take of the evidence, I am satisfied that neither of these gentlemen were negligent of their duty in that respect. (1) 15 App. Cas. 400. s 11..r,...r.
VOL. III.] EXCITEQUER COURT REPORTS. 183 Then, as to Colonel Montizambert. Take it that as 1892 commandant, having general charge of the fortifications T$E R-and "works of defence here in Quebec, he had a ' RATION OF THE CITY duty to . know of and report upon any danger that OF QUEBEC might arise to threaten the stability of the rock at the THE place where the accident happened, there is no evi- QUEEN. dence that he neglected or failed in his duty. I think Re pins that in order to fix him 'with such negligence as the Judgment-G-overnment would have to answer for, it must be shown that he knew of, and failed to report the defect in the drain, or that he was guilty of negligence in not being aware of its existence. In regard to the first; it has not been suggested that he knew of the defect ;" and in reference to his ignorance of its existence, I do not think one could expect or exact from him a greater degree of responsibility or care than would be exacted of Mr. Baillairgé or Captain Imlah on the occasions on which it was their duty to make an examination of the premises. • I am led, therefore, to find in this case that Colonel Montizambert has not been guilty of any negligence, which, under the statute, would make the Crown li able. Now, entertaining these views of what seems to me to be the merits of the case, I have not thought it worth while to allow the case to proceed. .I am satisfied that all the questions of law—and there are important questions of law involved in the case "other than those I have discussed-will on the appeal which, I assume, will be taken, be fairly raised and presented for determination. _ Motion allowed, costs to follow the event. Solicitors for the suppliants : Baillairgé sr Pelletier. Solicitors for the respondent : O' Connor, Hogg 4 Balderson.
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.