No. 3]
Recent Cases
PUBLIC INTERNATIONAL LAW
–
SOVEREING
IMMUNITY
–
DISTINCTION BETWEEN PUBLIC (Jure Imperii) AND PRIVATE (JuTe
Gestionis) ACTS OF A STATE. Le Gouvernement de la R6publique
D6mocratique du Congo v. Venne, [1969] B.R. 818, [1969] 5
D.L.R (3d) 128 (sub nomine, Venne v. Democratic Republic of
the Congo).
The recent expansion of government activities, principally in
economic and trade endeavours outside the territorial -limits of the
state, has brought about a, partial desintegration of the concept of
sovereign immunity. From a once absolute principle, sovereign im-
munity has recently been restricted to what modern writers call
the jure imperii, the public or political acts of a state, as opposed
to the jure gestionis, the acts of a private law nature of a state.
This doctrine is, however, far from being universally accepted.’
But, in Quebec courts, the acceptance of the distinction between
acts of a public or private nature of a government is gaining mo-
mentum. As a result of “Expo’ 67”, the Superior Court of the
Province of Quebec became seized of several disputes between
foreign governments and Canadian individuals, centering around
the designing, building and maintenance of the pavillions of par-
ticipating States. In the reported cases of Allan Construction Ltd.
v. Le Gouvernement de VIn~zuela 2 and Venue v. Le Gouvernement
de la Rgpublique D6mocratique du Congo,3 the Superior Court, in
both instances, applied the distinction between public and private
acts of a government and held that both governments were not
entitled to claim sovereign immunity in a dispute with respect to
the construction of their pavillions at “Expo’ 67”, as such contracts
were acts of a private law nature and not public acts.4
1 See generally, (1068), 14 McGill L.J. 334 and the authorities therein cited.
in. (1968), 14
2 [1068] C.S. 523, R.P. 145. (Reed, J.). See the comments
McGill L.J. 334 ff.
3 [10-68] R.P. 6. (Leduc, J.). See the comments in (1968), 14 McGill L.J.
334 ff.
4 See also, Erickson v. The Government of Venezuela, S.C.M. 789,980, October
26, 1067, Mr. Justice Ren6 Duranleau; Claude Blouin v. Le Gouvermement de la
Rgpublique du Venezuela, S.C.M. 7,33,505, November 28, 1067, Mr. Justice
Rodolphe Par6, Sicard Inc. v. Le Gouvernement de la Rgpublique du Venezuela,
S.C.M. 742,504, January 25, 1968, Mr. Justice Andr6 Montpetit.
McGILL LAW JOURNAL
[Vol. 15
This view has now been affirmed by the Court of Queen’s Bench
in Appeal in the case of Le Gouvernement de la R6publique du Congo
V. Venne.5 Notwithstanding that the Supreme Court of Canada has
never espoused the doctrine of qualified or restrictive sovereign im-
munity, their Lordships were unanimously of the opinion that
to
absolute sovereign immunity was “outdated and inapplicable
today’s conditions”.6 Mr. Justice Owen went further:
This theory may have been workable in the past when government acts
were more limited in scope. It may have been an apt theory when foreign
sovereigns were in many cases personal despots. However today, instead
of starting from the principle that every sovereign State enjoys juris-
dictional immunity unless the other party can demonstrate some established
exception to this rule, I believe we should reverse the process. Sovereign
immunity is a derogation from the general rule of jurisdiction. Any attorney
seeking immunity from jurisdiction on behalf of a sovereign State should
be called upon to show, to the court’s satisfaction, that there is some valid
basis for granting such immunity. Mere proof that the party seeking im-
munity is a sovereign State or any agency thereof and the invocation of
the doctrine of absolute sovereign immunity is no longer sufficient.7
(emphasis added).
Mr. Justice Brossard, after reviewing the evolution of the law
on the subject in recent Canadian, British and foreign decisions
and treatises, 8 concludes:
L’dvolution de notre jurisprudence, les efforts des juristes anglais pour
modifier ]a leur, les tendances prononc6es de la jurisprudence des autres
pays justifient, me semble-t-il, une conclusion que la ragle non seulement
n’est plus absolue mais qu’elle assujettie, dans chaque eas, aux circonstances
de reason and good sense, d’assentiment riciproque des Etats dont la sou-
veraineot est mise en cause, de la matiare en jeu dans le litige dans lequel
la r6gle est invoqu6e, de la nature purement privie ou commerciale (jure
gestionis) de cette mati~re ou, suivant le cas, de la relation directe qui
pout exister entre cette matiare et l’exercice par l’Etat souverain do son
jus imperii.9 (emphasis added).
Mr. Justice Taschereau, concurring with the view of his brothers
on the Bench, stated that this view was very similar to that of
the Secretary of State of the United States of America in a letter
addressed to the ambassador of the Republic of Guinea dated Janu-
ary 31, 1968, which he reproduced in extenso in his notes.10 This
letter is interesting in so far as it refused absolute sovereign im-
munity to the Republic of Guinea in a case pending before the
6 [1969] B.R. 8.
6 Ibid., at p. 827, per Owen, J.
7Id. See the authorities cited by Mr. Justice Owen, at pp. 820-826.
8Ibid., at pp. 829-835.
9 Ibid., at p. 835.
1 Ibid., at pp. 835-836.
No. 3]
RECENT CASES
Supreme Court of the State of New York, styled New York World’s
Fair Corporation 1964-65 v. Republic of Guinea, an action on a
contract for the rental of exhibition space at the fair grounds.
The Secretary of State reaffirmed the American position, previ-
ously taken in the now famous “Tate Letter”.”
The decision of the Court of Appeal has been appealed to the
Supreme Court of Canada, 12 and it will be interesting to see which
approach the Supreme Court opts for. In two comparatively recent
decisions, 13 our federal tribunals avoided the issue altogether.
The Exchequer Court, in Chateau-Gai Wines Limited v. Le
Gouvernement de la R~publique frangaise, refused to hear an appli-
cation for the expungement of a trade mark by way of an origi-
nating notice under s. 56 of the Trade Mark Act, 1-2 Eliz. II, S.C.
1952-53, c. 49 on the ground that the named respondent, the Gov-
to the
ernment of the Republic of France, had not submitted
jurisdiction of the Court. The President suggested that the notice
and statement of fact be amended “so that they neither are, nor
have the appearance of being, a proceeding against the Government
of the Republic of France”.’ 4
The Supreme Court of Canada, in Flota Maritima Browning de
Cuba S.A. v. The Steamship Canadian Conqueror and The Republic
of Cuba, held that ships belonging to the Government of the Repub-
lic of Cuba could not be seized by warrant of arrest. The majority
was of the opinion that:
The ships in question were “public ships” owned by and in the possession
of a foreign sovereign state and were, for this reason, immune from arrest
in the Exchequer Court. Although the ships might ultimately be used by
Cuba as trading or passenger ships, there was no evidence as to the use
they were destined, and the Court was not in a position to say that these
ships were going to be used for ordinary trading purposes. The defendant
ships were to be treated as “the property of a foreign stae devoted to
public use in the traditional sense,”…15
The words of Ritchie, J., however, as pointed out by Mr. Justice
Owen,”‘ might lead us to believe that the Supreme Court may also
“126 Department of State Bulletin 984, (1952).
12 An appeal to the Supreme Court of Canada was filed December 111 1968,
docket No. 11,344. The case has not yet been heard.
13Flota Maritima Browning de Cuba S.A. V. The Steamship Canadian Con-
(1962), 34 D.LR. (2d)
queror and The Republic of Cuba, [19.62] S.C.R. 598,
628; Chdteau-Gai Wines Limited v. Le Gouvernement de la Ripublique frangaise,
(1,9,67), 61 D.L.R. (2d) 709 (Exch.).
14 (1067), 61 D.L.R. (2d) 709, at p. 7113.
‘5[1962] S.C.R. 598, at p. 599 headnote).
16 [1069] B.R. 818, at p. 826.
McGILL LAW JOURNAL
[Vol. is
be ready to abandon the concept of absolute sovereign immunity.
After citing Oppenheim,’ 7 and Cheshire, 8 the learned judge con-
cluded:
With the greatest respect for those who hold a different view, I do not
find it necessary in the present case to adopt that part of Lord Atkin’s
judgment in The Christina, [Compania Naviera Vascongado V. S.S. Christina,
[1938] A.C. 485], in which he expressed the opinion that property of a
foreign sovereign State “only used for commercial 1urposes” is immune
from seizure under the process of our Courts, and I would dispose of this
appeal entirely on the basis that the defendant ships are to be treated as
(to use the language of Sir Lyman Duff) “the property of a foreign state
devoted to public use in the traditional sense, … ”
It is hoped that the Supreme Court will not disturb the judgment
of the Court of Appeal in this case, and, in fact, will assert the
principle that a foreign sovereign body who enters into relations
of a private law nature with individuals, whether private or corpo-
rate, should not be allowed to retreat behind the veil of sovereign
immunity in an -attempt to avoid its obligations. This is a much
more rational approach than absolute sovereign immunity. Whether,
however, the individual will be able to enforce his judgment is
altogether a different problem.
L.S.
17Internationa Law, vol. 1, 8th ed., H. Lauterpacht ed., (London, 1955),
p. 27G.
at p. 98.
is Private International Law, 6th ed., (London, 1061), pp. 96-97. See 7th ed.,
No. 3]
RECENT CASES
CONSTITUTIONAL LAW –
SPECIAL ACT OF THE LEGISLATURE OF
CONFERRING ON A MUNICIPALITY
–
IMMOVEABLES
THE PROVINCE OF QUEBEC –
RIGHTS TO EXPROPRIATE CERTAIN DESIGNATED
WHETHER WITHIN THE EXCLUSIVE JURISDICTION OF THE PROVINCES
UNDER THE B.N.A. ACT – MOTION TO QUASH NOTICE OF EXPRO-
PRIATION – THE CANADIAN BILL OF RIGHTS – APPLICABLE ONLY
TO ACTS OF THE DOMINION PARLIAMENT –
BRITISH NORTH
AMERICA ACT, 1867, 30-31 VICT., C. 3, SS. 92(8), (13),
THE CANADIAN BILL OF RIGTHs, 8-9 ELIz. II, S.C. 1959-60, c.
44 – AN ACT RESPECTING THE TOWN OF BOUCHERVILLE AND
THE CORPORATION OF THE PARISH OF SAINTE-ANNE-DE-VARENNES,
16-17 ELIz. II, S.Q. 1967-68, c. 104. P6loquin v. La Ville de Bou-
cherville, et al., [1969] C.S. 503.
(16)
–
The Town of Boucherville and the corporation of the Parish of
Sainte-Anne-de-Varennes were given by a Special Act of the Legis-
lature’ certain powers to expropriate designated immoveables for
the purposes of granting thereafter servitudes to a petroleum com-
pany to lay a pipeline. The underlying intention of the Act was to
speed up and facilitate the building of the pipeline. The Act estab-
lished the procedure to be followed and provided for the indemni-
fication of the expropriated parties.
The Petitioner, P6loquin, was one of the affected parties whose
property in the Town of Boucherville was to be expropriated. By
way of motion before the Superior Court, he sought to have the
notice of expropriation quashed on several grounds. He alleged
generally irregularities in the procedure followed and that the
whole procedure was illegal under the Cities and Towns Act.2 More
particularly, he complained that more land than necessary was being
expropriated, the whole being unconstitutional, and contrary to The
Canadian Bill of Rights.3
The Act was a measure of expediency designed apparently to
protect the public interest. It removed from the individual property
owner the right to deal in the most absolute manner with his
property, a fundamental right of the Civil Code.4 The Preambule
of the Act provides:
Whereas the town of Boucherville and the corporation of the parish of
Sainte-Anne-de-Varennes have represented that they would be disposed
‘An Act respecting the Town of Boucherville and the corporation of the
Parish of Sainte-Anne-de-Varennes, 16-1,7 Eliz. II, S.Q. 1967-68, c. 104.
2 R.S.Q. 1964, c. 1.93.
3 8-9 Eliz. II, S.C. 1969-60, c. 44.
4 Article 406 C.C.
McGILL LAW JOURNAL
[Vol. 15
to acquire land and then grant servitudes
enable it to proceed with the construction of pipelines;
to a petroleum company
to
Whereas the public interest requires that such two municipalities be
empowered to acquire fortwith by expropriation the lands necessary for
such purposes;
Whereas any delay
to complete
prejudicial to the economic development of the region where
progress; …
the work in hand would be quite
is in
it
Thus, by the enactment of this Act, the petroleum company was able
to negociate the acquisition of the necessary servitudes over the
course of the pipeline route with two municipal bodies only, at a
cost probably considerably lower, rather than acquiring such rights
of way from each of the individual owners.
Nowithstanding the definition of ownership quoted above, the
Civil Code provides for the expropriation of property, but only in
certain limited circumstances. Article 407 C.C. provides:
No one can be compelled to give up his property, except for public utility
and in consideration of a just indemnity previously paid. (Italics added).
A private petroleum company hardly qualifies as a public utility.
Even if a pipeline is considered a/or of public utility, is the expro-
priation of land by a municipality or town for the purpose of there-
after granting servitudes, which could have been as effectively
granted by the individual owners, justifiable under the guise of
public interest, expediency and convenience for the intended grantee
of the servitudes ?
The Court considered each of the grounds alleged in the motion
to quash and summarily dismissed the allegations of irregularities
in the procedure followed, finding in fact that the procedure, as
prescribed in the Act, was followed. It also rejected the argument
that the procedure followed was illegal under the Cities and Towns
Act on the basis that the Cities and Towns Act was unapplicable
where a Special Act of the Legislature had been passed.
The Court considered next the argument that more land then
required was being expropriated. The Act empowered the two mu-
nicipalities to expropriate certain designated properties. These prop-
erties were described in two schedules to the Act, Schedule “A”
for the property in Boucherville and Schedule “B” for the property
in Sainte-Anne-de-Varennes. Each schedule described the land af-
fected by its cadastral number, its location, its boundries and its
surface. The Court held that since Schedule “A” did not refer to
parts only of the lots described, the municipalities were empowered
to expropriate the whole of the lots subject to the Act. Thus, in
the case of Petitioner P6loquin, the municipality was held empow-
ered to expropriate 600,000 square feet of land when it actually
No. 3]
RECENT CASES
needed only 235,000 square feet to carry out the purposes of the
Act. The Court apparently refused to consider whether this exercise
of a statutory right constituted an abuse of right or -an unwarranted
exercise of such right. The Court was content to state that since
the right to expropriate, given to the municipalities was not re-
stricted to whatever parts of the designated lots they needed for
their purposes they could expropriate the whole. The Act was of
a special nature. It restricted the rights of the individual land owner
to deal with his property in the public interest. Assuming that the
building of the pipeline by a private petroleum company could be
considered a “public utility”, then expropriation with compensation
would be justified. But it is respectfully submitted that, notwith-
standing the Special Act of the Legislature, the expropriation of
more land than is necessary for the purposes of public utility is
never justified. The municipality acquired indirectly valuable land
which it would never have been permitted to expropriate under the
ordinary rules of our law and therefore should not have been al-
lowed to do indirectly what it would have been prohibited to do
directly. The Court should have construed restrictively the Special
Act.3
The Court finally considered the last of Petitioner’s grounds:
that the whole was unconstitutional, and contrary to the provisions
of The Canadian Bill of Rights.
The Court had no difficulty in holding that the Act was within
the exclusive legislative authority of the Provincial Legislature. Its
subject-matter could easily fall within anyone of three heads of
exclusive legislative competency of the province under s. 92 of
the British North America Act:
(8) Municipal Institutions in the Province.
(1) Property and Civil Rights in the Province.
(.1G) Generally all Matters of a merely local or private Nature in the Province.
in accordance with the leading jurisprudence,’,
The Court held,
that once a province exercises its legislative authority, in accord-
5 Challies, The Law of Expropriation, 2nd ed., (Montreal, 1963), pp. 1248.
6 See Hodge v. The Queen, (1:893-84), 9 A.C. Ij1i7, at p. 12; A.G. Canada V.
A.G. Ontonrio, [1898] A.C. 700, at p. 713; Re Barrett, (1880), 5 O.A.R. 206,
at p. 2,11; Smith v. The City of London, (1910), 20 O.L.R. 133, at p. 1i37;
Florence Mining Co. Ltd. v. Cobalt Lake Mining Co., (.1,909), 18 O.L.R. 275,
at p. 279, conf. by the Privy Council, (1019), 43 O.L.R. 474, (.1010), 102 L.T.R.
375.
McGILL LAW JOURNAL
[Vol. 15
ance with our Constitution, the Courts are powerless to interfere
and cannot question the propriety of such exercise of legislative
authority. The Provinces are paramount within their exclusive
sphere of legislative competency to the same extent as the Dominion
Parliament is within its sphere.7 But was this the issue in the case
at bar? The issue, it is respectfully submitted, is not whether the
Legislature is empowered to enact such legislation as that contained
in the Special Act, but whether, once it is enacted, it is subject to
the rule of law that expropriation is permitted only for the pur-
poses of public utility.
The Court cited in support Challies’ authoritative book on ex-
propriation: 8
There is in Canada no constitutional principle that private property cannot
be taken without due process of law, like the fifth and fourteenth constitu-
tional Amendments in the United States. it has been said of the Imperial
Parliament that it can do anything except make a man a woman. The
Dominion Parliament and the Provincial Legislatures within their spheres
are just as supreme.
“As to the question whether Parliament has the power to expropriate
land for public purposes without compensation, there cannot be any doubt”.0
(Italics added).
There is no doubt that the Dominion Parliament and the
Provincial Legislatures are empowered to expropriate for public
purposes land, even without compensation, but are they empowered
to expropriate land for other purposes ?1o It is submitted that they
would hardly try such expropriation and, even if they should at-
tempt it, it would probably be struck down by our Courts. Thus
is it not the same for a municipality who, having received the power
to expropriate for public purposes, abuses that power and seeks
7 See Florence Mining Co. Ltd. v. Cobalt Lake Mining Co., supra, n. 6; Glassco
v. Montreal Transportation Commission, [1953] C.S. 19, at p. 21.
s Op. cit., supra, n. 5, at p. 75.
9 The concepts of “public purposes” and “public utility” are fundamental to
our law. See the review of Roman, French and English law and their influence
on our law in Challies, op. cit., supra, n. 5, at pp. 1-8. Axticle 407 C.C. was
not new law. See De Lorimier, Bibliothque du Code Civil, Vol. 3, (Montreal,
1874), p. 372 who refers to the same authorities as cited in the Codifiers’
Report, Vol. 8, p. 454.
10 See Challies, op. cit., supra, n. 5, where he reproduces every relevant
Canadian, Quebec and Ontario statutes. All the statutes reproduced grant powers
to expropriate for “public purposes” only.
No. 33
RoECENT CASMS
to expropriate more land than is necessary for its purposes.”1 As
in the
to whether The Canadian Bill of Rights was applicable
circumstances, the Court held that, on it’s face; it purports to apply
only to Acts of the Dominion Parliament and not to Acts of the
Provincial Legislature. ‘ 2
L.S.
INSURANCE – BROKER – ACTING AS AGENT OF THE APPLICANT FOR
LIABILITY, THEFT AND FIRE
–
INSURANCE
–
AUTOMOBILE
POLICY TO BE IN FORCE AS OF
REPRESENTATIONS OF BROKER –
APPLICATION SUBJECT IN
THE SIGNING OF THE APPLICATION –
FACT TO
THEFT OF
VEHICLE – BETWEEN DATE OF APPLICATION AND DATE OF REFUSAL
OF RISK –
C.C. 1079 et seq. Lemieux V. Dessureault, 1969 C.S. 383.
LIABILITY OF BROKER TOWARDS THE APPLICANT –
INSURER’S ACCEPTANCE OF THE RISK –
The Plaintiff purchased an automobile and called his broker to
obtain insurance on the vehicle. The broker sent one of his employees,
Lanari, to Plaintiff’s house with an application form which was
completed by the employee and signed by the Plaintiff, who then
tendered his personal cheque of $50. on account of the total premium
of $307.
The application form stipulated that the application was subject
to the acceptance by the insurer of the risk and, in the event of his
refusal, that the application was null and void. The automobile was
stolen between the date of the signing of application and the date
of the refusal of the risk.
Both Plaintiff and his wife testified that the employee Lanari
had represented to then that they were insured from the signing
of the application. The Court accepted their testimony as the most
plausible; the Plaintiff and his wife were planning a trip out of
town the next day and would not have left had they been told that
11 See Montpetit & Taillefer, Traiti de Droit Civil du Quebec, vol. 3, (Montreal,
1945), p. 117, where in referring to the expropriating powers of municipalities,
the authors state: “Mais ce droit d’expropriation n’existe qu’en fonction de
l’intar6t public, pour la confection de travaux effectu4s vraiment dans l’int~rft
public et non dans l’int6rit de quelques contrribuables seulement.” See the au-
thorities cited therein, at im. 12 & 13.
12 See ss. 2 & 5 thereof.
McGILL LAW JOURNAL
[Vol. 15
the insurance contract was subject to the acceptance of the insurer.
Furthermore, the Plaintiff cancelled another general liability in-
surance on the automobile, which had also been obtained on his
behalf by Defendant broker. The Court reasoned that these facts
were consistent with Plaintiff’s testimony.
The Plaintiff did no claim damages against the insurer directly
for his failure to act diligently on Plaintiff’s application, 1 but sued
the broker alleging breach of his professional obligations towards
him. In any event, an action against the insurer would probably
have failed as the company notified the broker of its decision who
was, for such purposes, the agent of the applicant.2
The broker’s obligations are of two types. Firstly, he is the
mandatary or agent of the -applicant and, as such, he must act, in
the most efficient manner, according to his instructions, and within
the limits of his mandate. Secondly, he has a general duty to inform
and counsel his clients. The Court held that he failed to carry out
this second duty.
The Court held that the broker has a duty to inform his clients
on the conditions and essential elements of the contract they are
about to undertake, on the nature and extent of the risk provided
for in the policy, and on the date on which the contract is supposed
to come into force. The broker cannot plead the negligence of the
applicant who failed to read carefully the terms and conditions of
the application, which reading would have revealed that the appli-
cation was subject to the insurer’s acceptance and void upon his
refusal to accept the risk. In Blackburn v. Bossche,3 it was held:
Celui, qui emploie un courtier pour se procurer une assurance et lui fait
connaitre toutes les circonstances, a droit de s’attendre que celui-ci agira
avec l’habiletM convenable et tous les soins d’un bon pre de famille, et
il n’est pas oblig6 de v6rifier, par la lecture de la police, si le mandat a
U6 fid~lement accompli. 4
It must be considered one of the main function of the broker, the
Court went on, to explain to his clients the meaning of the often
‘See generally: Sgvigny V. Stevenson, [1957] 1 I.L.R. para. 1-249; Dion v.
Great American Insurance Co., [19533 C.S. 270; R. Sanders, The Effect of
the Insurer’s Delay in Acting on an Application for Insurance, (1962), 36
Temple L.Q. 84.
2 Wolosianski v. General Security Insurance Co., [1952] I.L.R. para. 1-066;
Douglas-A. Barlow, Le Courtier pro fessionnel d’assurance devant la loi, (1946),
6 R. du B. 464, at p. 476.
3 [1949] B.R. 697.
4 At p. 697 (headnote).
N~o. 3]
RtCENT CASES
obscure, and technical clauses found in insurance contracts. The
client cannot be expected to be able to appreciate, in every detail,
the nature and extent of those clauses, which are usually steeped
in historical content. 5
The broker, having therefore a duty and an obligation to inform
his client on the extent of the risk covered under the insurance
contract,6 and on the sufficiency of the risk,7 a fortiori, he must
also inform accurately his client as to the time at which the policy
will come into force. If, contrary to his expressed verbal repre-
sentations, the policy does not meet the required standards and
conditions, he will be held personally liable. 8 By -analogy, if the
policy does not come into force at the time indicated by the broker,
or any of his employees, he must also then be held personally liable.
Thus the failure of the broker’s employee to adequately explain
that the policy was subject to the acceptance of the insurer and
that it would be null -and void upon his refusal constituted a fault
for which the broker was liable. In the instant case, the broker was
condemned to indemnify the Plaintiff for the value of the automobile
lost by theft, a risk which would have been covered by the insurance
policy had it been in force.
L.S.
GSee L.P. Pigeon, L’Agent d’assurance mandataire de l’assureur, (1959),
19 R. du B. 390, at p. 392.
0 See Great-West Life Assurance Co. V. Paris, [1959] B.R. 348, [1059] I.L.R.
para. 1-339.
1964, J.C.P.1065.IL10,981.
1-368.
7 See Socit 6 Cabinet X… v. SociMtM “Le Garage Wagran”, Cass. 10 nov.
8 Durocher v. Gevry, [19G1] B.R. 283; C6t v. Labrecque, [1960] I.L.R. para.
McGILL LAW JOURNAL
[Vol. 15
ASSAULT AND BATTERY –
BLOWS STRUCK IN
COURSE OF LAWFUL SPORT – WHETHER PRIVILEGED. Martin et al.
V. Daigle, [1969] 6 D.L.R. (3d) 634.
DEFENCES
–
All Western systems of law contain some provision which covers
the situation where an individual causes damage to another either
wilfully, or else unintentionally through neglect, imprudence or want
of skill. The extent to which such a general liability provision applies
to participants in a lawful sport has recently been the subject of a
decision of the Appeal Division of the New Brunswick Supreme Court.
The facts are brief and simple. Plaintiff, a high school student,
brought an action to recover damages for an assault committed
upon him by the defendant in the course of a hockey game in which
both parties were active participants. Defendant admitted striking
plaintiff but in his defense argued that he thought it was merely
part or the game.
The trial judge recognized that hockey is a game in which there
is an ever-present risk of injury, but injuries cannot be excused if
caused by a blow of the fist, as was the fact in the case under
discussion. Consequently, damages were granted to plaintiff. An
appeal was lodged by plaintiff who sought an increase in the
monetary award. The Appeal Division felt it necessary to comment
on the question of law, although not requested to do so. Mr. Justice
Hughes took the view that there is an immunity from liability
accorded to participants in a lawful sport, but such immunity does
have its limits. Since the blow struck by the defendant was clearly
intended to cause bodily hurt to the plaintiff, and did in fact inflict
bodily hurt, it was actionable.’
In his work on torts the learned English author Pollock discussed
the legal basis on which such immunity rests as follows:
Harm suffered by consent is, within limits to be mentioned, not a cause
of civil action. The same is true where it is met with under conditions
manifesting acceptance, on the part of the person suffering it, of the risk
of that kind of harm. The maxim by which the rule is commonly brought
to mind is Volenti non fit injuria. ‘Leave and licence’ is the current English
phrase for the defence raised in this class of cases. On the one hand, however,
-volenti non fit injuria is not universally true. On the other hand, neither
the Latin nor the English formula provides in terms for the state of things
in which there is not specific will or assent to suffer something which,
1 This legal principle was enunciated by Halsbury, 3rd. ed., vol. 38, p. 762
as follows: “An unlawful blow which is struck in anger or which is likely
or intended to do bodily hurt is actionable, but a blow struck in the course of a
lawful sport is not actionable; … ”
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CASES
if inflicted against the party’s will, would be a wrong, but only conduct
showing, that for one reason or another, he is content to abide the chance
of it. Some learned persons would make this a distinct ground of excuse
under the name of ‘assumption of risk’. 2
The manner in which the principle of “assumption of risk” is
applied to modern day sports was dealt with in another recent
decision of the Queen’s Bench of Manitoba.3 Mr. Justice Bastin
therein stated:
Since it
is common knowledge that… injuries are not infrequent, this
supports the conclusion that in the past those engaged in this sport [hockey]
have accepted the risk of injury as a condition of participating. Hockey
necessarily involves violent bodily contact and blows from the puck and
hockey sticks. A person who engages in this sport must be assumed to
accept the risk of accidental harm and to waive any claim he would have
apart from the game for trespass to his person in return for enjoying a
corresponding immunity with respect to other players. It would be in-
consistent with this implied consent to impose a duty on a player to take
care for the safety of other players corresponding to the duty which, in a
normal situation, gives rise to a claim for negligence. Similarly, the leave
and licence will include an unintentional injury resulting from one of the
frequent infractions of the rules of the game.
The conduct of a player in the heat of the game is instinctive and
unpremeditated and should not be judged by standards suited to polite
social intercourse.
But a little reflection will establish that some limit must be placed on a
player’s immunity from liability. Each case must be decided on its own
facts so it
is difficult, if not impossible, to decide how the line is to be
drawn in every circumstance. But injuries inflicted in circumstances which
show a definite resolve to cause serious injury to another, even when there
is provocation and in the heat of the game, should not fall within the
scope of the implied consent.4
It is respectfully submitted that both Mr. Justice Hughes and
Mr. Justice Bastin have more than adequately and realistically dealt
with a serious problem which is becoming more and more prevalent
in body contact sports. They have recognized that such sports neces-
sarily involve violence and physical punishment, which in turn lead
to flaring tempers, but they have also recognized that some limitation
must be placed on players who become involved in personal duels.
Such decisions will not eliminate fighting, but it is hoped they will
at least lead to a reduction in the number of fights. Too many
promising athletes have not only had careers threatened, but their
lives endangered.
S. W.
2 Pollock on Torts, 15th ed., p. 112.
3 Agar v. Canning, (1966), 54 W.W.R. 302; confirmed in appeal, (1966), 55
W.W.R. 384.
4 (1966), 54 W.W.R. 302, at p. 304.
