McGILL LAW JOURNAL
[Vol. 13
Unreported Judgments
From time to time, judgments of interest to the legal com-
munity, for one reason or another, do not appear in the regular
reports in this province. To fill this gap, the McGill Law Journal will
publish summaries of unreported judgments which the editors feel
should be brought to the attention of ‘members of the Bar and Bench.
In order to accomplish our goal, we would appreciate the coopera-
tion of judges and lawyers in informing us of judgments which they
feel would merit inclusion in this section of the Law Journal.
OBLIGATIONS
Frank Engels v. Globe Parking Ltd., S.C.M. 544,166, Jan. 24, 1964,
Mr. Justice Arthur I. Smith.
Parking Lot –
Car stolen – Recovered without contents –
Liability of
parking lot.
Plaintiff’s car was stolen from Defendant’s parking lot and,
although it was later recovered, various articles left in the car were
missing and Plaintiff claimed their value from Defendant.
The Defendant cited Atlas Parking Ltd. v. Laferri~re [1962] B.R.
422 in support of the argument that the Plaintiff had no right of
recovery in respect of the contents of the automobile. In the latter case,
a car was parked in a lot. Unknown to the attendants, it contained
$17,000 in furs. The furs were stolen from the car and transferred to
the car of the thieves. Upon seeing the car of the thieves leave the lot
by the entrance instead of the exit, the attendants, unaware of whether
or not it was being stolen, brought it to the attention of a nearby police-
man who stopped the car and through his own fault permitted the
thieves to get away. The owner of the furs sued. The Court of Appeal
rejected the action based, inter alia, on the fact that the responsibility
for the theft had passed from the hands of the parking lot into that of
the policeman.
Mr. Justice Smith distinguished the Atlas case, using some of the
grounds of the Court of Appeal. Nothing in the Atlas case indicated
that the owner of the lot intended to assume responsibility in regard
to contents of such a high value in return for the small parking fee or
that he could reasonably foresee so great a loss. On the other hand, he
could reasonably foresee a loss of the usual articles to be found in an
automobile and, therefore, was liable in the present case.
No. 1]
UNREPORTED JUDGMENTS
PRIVILEGES
Goodfellow v. Martel & Brittle, et. al., S.C.M. C-140,883, Jan. 17,
1936. Mr. Justice A. Duranleau.
Privilege – Supplier of Materials – End of Work – Plans and Specifications
Whether landscaping included in determining date at which construction
ready for use intended – A.376, 2013, 2013 (e),c.c.
Plaintiff G., a lumber dealer, sued defendant M., a general con-
tractor, on a privilege in virtue of building materials supplied to M.
for a house being built by M. for B. M. did not defend the action,
but B., the owner, contested on the grounds, inter alia, that the action
was instituted more than three months after the end of the work.
In the contract between the owner, B. and the contractor M. there
was a clause which read in part “Lawns extending over the entire lot
to be completed, sodded ….. ” This clause was also included in the
specifications prepared by the architect.
Held that the privilege subsisted. The word “immoveable” in Art.
2013 C.C. not only includes the building itself, but also the land which
is given a plus-value by reason of work done or materials supplied.
The word “construction” in Art. 2013 (e) C.C. must be interpreted in a
wide sense to include improvements, alterations, repairs and other
work done on the immoveable and which give it additional value. Thus,
the delay to register the privilege only commenced when the exterior
work such as levelling, sodding, etc. had been completed, as they were
an accessory to the building and were part of the general contract.
PRIVILEGES
* Kolostat Heating System Limited V. C. Jobin Limit6e & Centre
Commercial Levis Inc. et al, S.C.Q. 128-225, Sept. 13, 1965, Mr. Justice
E. Marquis.
Privilege – Sub-contractor – End of Work – Plans and Specifications – Defi-
ciencies – Testing of Equipment – Suspension or Abandonment – Whether
in determining date of end of work
paving of parking lot included
A.2013, 2013 (a) & 2013 (f) c.c., & authorities.
Plaintiff K., a plumbing and heating sub-contractor, entered into
a contract with the defendant J., a general contractor, for the
mechanical work on a shopping centre being constructed. Upon the
* Under appeal.
McGILL LAW JOURNAL
[Vol. 13
bankruptcy of defendant J., plaintiff registered a privilege on the
immoveable belonging to the owner, C., for the remaining unpaid
balance owing by the general contractor. Defendant, acting through
the trustees in bankruptcy, confessed judgement for the amount
claimed, but contested the privilege claimed by K., as did the owner C.
Held, the privilege was registered within the delays required by
the Civil Code. When plaintiff registered its privilege more than
one-fifth of the parking lot remained unpaved. As this formed an
integral part of the main contract all the interested sub-contractors
had the right to expect that their privileges would subsist so long as
this work were not completed.
Held further, that the work was not abandoned, but merely
suspended. There was no manifest desire to abandon nor was there
any act which could be interpreted in any manner other than a mere
suspension.
Held also, that as there were several deficiencies to be completed
in plaintiff’s contract which were admitted by defendant and which
defendant required plaintiff to complete, the privilege still subsisted.
Held also, that so long as the ventilating system being installed by
plaintiff could not be tested due to the winter weather and the owner
could demand its testing and putting into proper working order,
plaintiff had the right to register a privilege.
CIVIL LAW
Louis Tucker v. Federation Insurance Company of Canada, S.C.M.
371,161, July 19, 1962, Mr. Justice P.-E. C6t6.
Performance Bond – Construction Contract – Bankruptcy of General Con-
tractor -Liability of Surety – Nature of Contract.
Plaintiff T. entered into a contract with a general contractor for
the erection of an apartment building at a fixed price. The contract
required of the general contractor, at the option of the owner, the
furnishing of a performance bond. At the demand of the plaintiff-
owner, the contractor obtained a performance bond from the defend-
ant company for the sum of $72,850, defendant binding itself to T.,
plaintiff. Defendant had dealt with the contractor previously and had
access to its financial statement.
During the course of construction, several sub-contractors register-
ed privileges and soon the contractor’s financial difficulties became
apparent. As one sub-contractor issued a seizure in garnishment
No. 1]
UNREPORTED JUDGMENTS
before judgment, further payments by the contractor could not be
made and bankruptcy ensued shortly thereafter. It became necessary
to call in a second contractor to complete the project. This resulted
in an additional cost to the owner of more than $50,000.
Held, the surety was bound to the owner. A performance bond
was a contract for the benefit of a third party (the owner) which
was accepted by him when he disbursed to the defendant the price
fixed as the consideration of the contract.
Held, further, that the contract is neither one of suretyship nor
of insurance, as certain essentials of each were lacking, but rather it
was a contract “sui generis” of the nature of a stipulation in favour
of the plaintiff, whose acceptance rendered defendant jointly and
severally liable with the contractor to the plaintiff.
LABOUR LAW
Vapor Heating Limited, Petitioner v. United Steel Workers of
America, Local 6192 and Donald Rees, David Langlois and Bela Papp,
Respondents, S.C.M. 706,559, March 15, 1966, Mr. Justice Frangois
Auclair.
Illegal strike – Picketing by employees not allowed.
A strike contrary to provisions of the Labour Code took place and
members of the Union, including Rees, Langlois and Papp, who were
also officers of the Union, established picket lines to prevent other
employees from entering petitioner’s premises. On petitioner’s motion
for an interlocutory injunction based principally on the fact that the
strike was illegal, an injunction was issued restraining and enjoin-
ing the Union, its officers, members and employees from, inter alia,
continuing to picket, watch and beset the premises of petitioner.
