Clark v. Canadian National Railway Co. and New Brunswick, (1988) 89 N.R. 81 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 08, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1988), 89 N.R. 81 (SCC)

Clark v. CNR (1988), 89 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Canadian National Railway Company v. James Mark Clark, an Infant, by his Father and next friend Mark Byron Clark and the Attorney General for New Brunswick and Attorney General of Canada and the Attorney General of Quebec and Canadian Pacific Limited

(No. 19299)

Indexed As: Clark v. Canadian National Railway Co. and New Brunswick

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and L'Heureux-Dubé, JJ.

December 15, 1988.

Summary:

In 1978 a two year old boy wandered onto unfenced railway tracks and was struck by a C.N.R. train. As a result the boy was rendered a paraplegic and totally disabled. More than three years later the boy (as represented by his father) commenced an action in negligence against the C.N.R. The boy alleged breaches of a common law duty of care, the Railway Act and the Canadian Transport Commission's Uniform Code of Operating Rules. The C.N.R. denied the allegations of negligence and, alternatively, pleaded that the boy's action was barred by the two year limitation period in the Railway Act (s. 342(1)). The boy argued that the limitation period in s. 18 of the Limitation of Actions Act (N.B.) was applicable, which would permit the action to be commenced within six years of when the boy became of full age. The parties applied for a preliminary determination of whether the action was statute barred.

The New Brunswick Court of Queen's Bench, per Dickson, J., in a decision reported 50 N.B.R.(2d) 356; 131 A.P.R. 356, held that he was bound by an older Supreme Court of Canada decision (Cdn. Northern Railway v. Pszenicnzy (1916), 54 S.C.R. 36), to hold that s. 342(1) was constitutionally applicable to common law negligence actions. He held, however, that s. 342(1) did not bar the boy's action because the section should be construed so as not to apply to the procedural law governing actions by infants and that it did not displace the special limitation period for infants in s. 18 of the Limitation of Actions Act. The C.N.R. appealed.

The New Brunswick Court of Appeal, Angers, J.A., dissenting, in a decision reported 62 N.B.R.(2d) 276; 161 A.P.R. 276, dismissed the appeal. La Forest, J.A., held that s. 342(1) was intended to apply to common law negligence actions and disagreed with Dickson, J., that an exception could be made for actions by infants. La Forest, J.A., held rather that s. 342(1) was ultra vires the federal Parliament to the extent it purported to apply to common law negligence actions. Hoyt, J.A., agreed that s. 342(1) was ultra vires with respect to common law negligence actions and also agreed with Dickson, J., that s. 342(1) should be interpreted as procedural only and not as changing the general procedural law of the province relating to infants. Angers, J.A., dissenting, felt bound by the earlier Supreme Court of Canada decision in Pszenicnzy to uphold the constitutional validity of s. 342(1). The C.N.R. appealed again.

The Supreme Court of Canada in a unanimous decision rendered by the court dismissed the appeal. The court declined to follow the earlier Pszenicnzy decision and held that s. 342(1) was ultra vires the federal Parliament insofar as it attempted to limit actions based on common law negligence. The court read down s. 342(1) to apply only to causes of action specifically created by valid federal legislation relating to railways. Thus s. 342(1) was inapplicable to the boy's action against the railway; rather the Limitation of Actions Act (N.B.) prevailed. The court rejected the argument that s. 342(1) was procedural only and held that when enacted by the federal Parliament the intention of Parliament was to limit common law negligence actions.

Actions - Topic 1527

Cause of - Creation of - By statute - By violation of statute - A two year old boy wandered onto unfenced railway tracks and was struck by a C.N.R. train, rendering him a paraplegic - The boy (as represented by his father) commenced a negligence action against the railway alleging breaches of statutory duty and of a common law duty of care - The Supreme Court of Canada stated that despite reliance on statutory duties the action remained a common law action for negligence - "The respondent [the boy] is asserting a common law right of action arising under provincial law and not a right of action created by the Railway Act, although liability may be affected by the provisions of that Act" - See paragraphs 17, 18.

Constitutional Law - Topic 2502

Determination of validity of statutes - Aim or purpose of statutes - The Supreme Court of Canada affirmed that the purpose of legislation does not shift over time with changing circumstances (see R. v. Big M Drug Mart, 58 N.R. 81; 60 A.R. 161) - Legislation, once constitutionally valid, does not become invalid with the passage of time - The court noted however that the scope of a given legislative power and the classification of legislation for constitutional purposes does evolve over time - The court stated that "Big M Drug Mart does not, therefore, preclude a reassessment of the constitutionality of legislation. This court has made it clear that constitutional decisions are not immutable, even in the absence of constitutional amendment" - See paragraphs 40 to 42.

Constitutional Law - Topic 2507

Determination of validity of statutes - Reading down - The Railway Act (Can.), s. 342(1), set out a two year limitation period on negligence actions against a railway - The Supreme Court of Canada held that s. 342(1) was ultra vires insofar as it attempted to limit common law negligence actions - The court held that s. 342(1) should be read down to apply only to causes of action specifically created by valid federal legislation relating to railways (e.g. s. 336) - See paragraphs 52 to 54.

Constitutional Law - Topic 6642

Federal jurisdiction - Interprovincial works and undertakings - Transportation - Railways - The Railway Act (Can.), s. 342(1), set out a two year limitation period on negligence actions against a railway - The Supreme Court of Canada held that s. 342(1) was ultra vires the federal Parliament insofar as it imposed a limitation period on common law negligence actions - The court held that limitation periods on personal injury actions were not an integral part of the federal jurisdiction over railways - The court held that s. 342(1) should be read down to apply only to causes of action specifically created by valid federal legislation relating to railways (e.g. s. 336) - See paragraphs 50 to 54.

Constitutional Law - Topic 6646

Federal jurisdiction - Interprovincial works and undertakings - Integral element test - The Constitution Act, 1867, s. 92(10), gave federal Parliament jurisdiction over interprovincial works and undertakings - The Supreme Court of Canada stated that "the constitutionality and application of federal legislation pursuant to s. 92(10) is governed by what has been described as the 'integral element' approach" - See paragraph 46 - The court thereafter gave guidance on how to apply this approach - See paragraphs 47 to 49.

Constitutional Law - Topic 6646

Federal jurisdiction - Interprovincial works and undertakings - Integral element test - The Railway Act (Can.), s. 342(1), set out a two year limitation period on negligence actions against a railway - The Supreme Court of Canada held that s. 342(1) was ultra vires the federal Parliament insofar as it imposed a limitation period on common law negligence actions against railways within federal legislative competence under s. 92(10) of the Constitution Act, 1867 - The court held that such limitation periods were not an integral part of federal jurisdiction but rather the provincial limitation periods prevailed for such actions - The court warned, however, that different considerations might apply to limitation periods enacted under other federal heads of power - See paragraphs 51 to 54.

Constitutional Law - Topic 6660

Federal jurisdiction - Interprovincial works and undertakings - Provincial laws of general application - The Supreme Court of Canada stated that "it is well established that undertakings falling within federal competence by virtue of s. 92(10) are subject to provincial laws of general application" - See paragraph 44 - The court noted that in several cases from the Supreme Court of Canada and the Privy Council the application of provincial laws of general application to railways has been upheld - See paragraph 45.

Courts - Topic 79

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Supreme Court of Canada - Constitutional cases - [See Constitutional Law - Topic 2502 above].

Courts - Topic 79

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Supreme Court of Canada - The Railway Act, s. 342(1), set out a two year limitation period on negligence actions against the railway - In 1916 the Supreme Court of Canada in Cdn. Northern Railway v. Pszenicnzy (54 S.C.R. 36), assumed that s. 342(1) was intra vires the federal Parliament and held that the two year limitation period applied to an action against the railway under a provincial statute - Over the years various courts considered themselves bound by the finding that s. 342(1) was constitutional - The New Brunswick Court of Appeal suggested that the constitutional issue was not specifically argued in Pszenicnzy and therefore the case was not binding - The Supreme Court of Canada stated that "the characterization of the manner in which the court dealt with the issues some 70 years ago is, of course, not determinative. It remains, however, that the court would be less willing to interfere with the decision arrived at after full argument and deliberation ..." - See paragraphs 28 to 38.

Courts - Topic 79

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Supreme Court of Canada - The Railway Act, s. 342(1), set out a two year limitation period on negligence actions against a railway - In 1916 the Supreme Court of Canada in Cdn. Northern Railway v. Pszenicnzy (54 S.C.R. 36), held or assumed that s. 342(1) was intra vires the federal Parliament - Subsequently courts felt bound and applied s. 342(1) to common law negligence actions - In 1988 the Supreme Court of Canada reexamined the Pszenicnzy decision and held that the approach taken therein was inconsistent with that taken in the modern jurisprudence of the Supreme Court of Canada with respect to s. 92(10) of the Constitution Act, 1867 - The court thereafter set out its reasons for not following the Pszenicnzy decision - See paragraphs 43 to 54.

Limitation of Actions - Topic 13

General principles - Conflict between limitation periods - [See second Constitutional Law - Topic 6646 above].

Limitation of Actions - Topic 9051

Exemptions - Infants - Application of limitation periods - The Railway Act (Can.), s. 342(1), set out a two year limitation period on actions against a railway - The New Brunswick Limitation of Actions Act, s. 18, extended limitation periods for infants - An argument was made that s. 342(1) did not operate to deprive an infant of the special extension of the limitation period in s. 18 - The Supreme Court of Canada rejected this argument, holding that s. 342(1), insofar as it was constitutionally valid, applied to infants and adults - See paragraphs 19 to 21.

Railways - Topic 4

General principles - Limitation periods - [See Limitation of Actions - Topic 9051 above].

Railways - Topic 4

General principles - Limitation periods - [See Constitutional Law - Topic 6642 above].

Railways - Topic 4

General principles - Limitation periods - Interpretation - The Railway Act, s. 342(1), set out a two year limitation period on negligence actions against a railway for damages arising out of the construction or "operation of the railway" - An argument was made in light of the French version of s. 342(1) that the limitation period must apply only to actions arising from the time of construction or the coming into operation of the railway immediately following construction and not to the ongoing operations of the railway - The Supreme Court of Canada rejected this argument, holding that the French version was ambiguous and the English version prevailed in this case where it was unambiguous - In the result the court held that the limitation period applied to the continuing operations of the railway - See paragraphs 22 to 24.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - Where one version ambiguous - The Supreme Court of Canada stated that "in the event of conflict between English and French versions, resort may be had to the true spirit, intent and meaning of the provision so as to construe the provision in a manner consistent with its objectives: Official Languages Act ... s. 8(2)(d)" - Where one version is unambiguous, it should be given preference to the version in the other language which would introduce imprecision and ambiguity - See paragraph 24.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - [See third Railways - Topic 4 above].

Words and Phrases

Operation of the railway - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 342(1) of the Railway Act, R.S. C. 1970, c. R-2 - See paragraphs 22 to 24.

Cases Noticed:

Canadian Northern Railway Co. v. Pszenicnzy (1916), 54 S.C.R. 36, not folld. [para. 13 et seq.].

Williams v. Canadian National Railway Co. (1976), 18 N.S.R.(2d) 229; 20 A.P.R. 229; 75 D.L.R.(3d) 87, not folld. [paras. 13, 19, 20, 35, 37].

Saskatchewan Wheat Pool v. Government of Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, appld. [para. 18].

Grand Trunk Railway Company of Canada v. Attorney General of Canada, [1907] A.C. 65, not folld. [paras. 19, 35].

West v. Corbett et al. (1913), 47 S.C.R. 596, not folld. [para. 19].

Winnipeg Electric Railway Company v. Aitken (1921), 63 S.C.R. 586, not folld. [paras. 19, 23].

British Columbia Electric Railway Co. Ltd. v. Pribble, [1926] A.C. 466, not folld. [paras. 19, 23].

Canadian Northern Railway Co. v. Robinson (1910), 43 S.C.R. 387, affd. [1911] A.C. 737, consd. [para. 23].

Greer v. Canadian Pacific Railway Co. (1915), 51 S.C.R. 338, consd. [paras. 23, 26, 32, 36].

Bourgault's Estate v. Deputy Minister of Revenue of Quebec, [1980] 1 S.C.R. 35; 30 N.R. 24; 105 D.L.R. (3d) 270, appld. [para. 24].

Deputy Minister of Revenue v. Rainville - see Bourgault's Estate v. Deputy Minister of Revenue of Quebec.

R. v. Popovic, [1976] 2 S.C.R. 308; 7 N.R. 231, appld. [para. 24].

Levesque v. New Brunswick Railway Co. (1889), 29 N.B.R. 588, not folld. [paras. 28, 29, 30].

McArthur v. Northern and Pacific Junction Railway Co. (1890), 17 O.A.R. 86, consd. [para. 31].

Paskivski v. Canadian Pacific Ltd., [1976] 1 S.C.R. 687; 5 N.R. 1, dist. [para. 39].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, consd. [paras. 40, 41, 42].

Reference Re Farm Products Marketing Act, [1957] S.C.R. 198, refd to. [para. 42].

Reference Re Agricultural Products Marketing Act, R.S.C. 1970 et al., [1978] 2 S.C.R. 1198; 19 N.R. 361, refd to. [para. 42].

Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; 18 N.R. 181, refd to. [para. 42].

Government of Canada v. McNamara Construction (Western) Ltd. et al., [1977] 2 S.C.R. 654; 13 N.R. 181, refd to. [para. 42].

Bell Canada v. Commission de la santé et de la sécurité du travail (Que.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, consd. [para. 44].

Nor-Min Supplies Ltd. et al. v. Canadian National Railway Co., [1977] 1 S.C.R. 322; 7 N.R. 603, refd to. [para. 45].

Canadian Pacific Railway Co. v. Notre-Dame de Bonsecours, [1899] A.C. 367, refd to. [para. 45].

Madden v. Nelson and Fort Sheppard Railway Co., [1899] A.C. 626, refd to. [para. 45].

Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; 25 N.R. 1, appld. [paras. 46, 49].

Northern Telecom Ltd. v. Communication Workers of Canada, [1980] 1 S.C.R. 115; 28 N.R. 107, appld. [para. 47].

Canadian National Railway Co. v. Courtois and Commission de la santé et de la sécurité du travail (Que.) et al., [1988] 1 S.C.R. 868; 85 N.R. 260; 15 Q.A.C. 181, refd to. [para. 49].

Alltrans Express Ltd. v. Workers' Compensation Board (B.C.), [1988] 1 S.C.R. 897; 85 N.R. 241; 15 Q.A.C. 161, refd to. [para. 49].

Attorney General for Alberta and Winstanley v. Atlas Lumber Co., [1941] S.C.R. 87, refd to. [para. 55].

Cushing v. Dupuy (1880), 5 App. Cas. 409, refd to. [para. 55].

Statutes Noticed:

Canadian National Railway Act, R.S.C. 1970, c. C-10, sect. 18 [para. 7].

Constitution Act, 1867, sect. 91(29) [paras. 5, 27 et seq.]; sect. 92(10) [paras. 6, 27 et seq.]; sect. 92(13), sect. 92(14) [paras. 27, 50].

Employees' Liability Act, R.S.M. 1913, c. 61, generally [para. 33], sect. 12 [para. 34].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 18 [para. 1 et seq.].

Manitoba Railway Act, R.S.M. 1913, c. 168, sect. 116 [para. 23].

Official Languages Act, R.S.C. 1970, c. O-2, sect. 8(2)(d) [para. 24].

Railway Act, R.S.C. 1970, c. R-2, sect. 336 [para. 53]; sect. 342(1) [para. 1 et seq].

Counsel:

John J. Robinette, Q.C., and Ronald Jackson, for the appellant;

E. Neil McKelvey, Q.C., Ronald Ashfield and Stephen J. Hutchison, for the respondent;

R.P. Hynes and M.L. Basta, for the Attorney General of Canada;

C.R.O. Munro, Q.C., and James V. West, for Canadian Pacific Limited;

Bruce Judah, for the Attorney General of New Brunswick;

Jean Bouchard, for the Attorney General of Quebec.

Solicitors of Record:

Ronald Jackson, Moncton, New Brunswick, for the appellant;

Ashfield, DeWitt & LeBlanc, Fredericton, New Brunswick, for the respondent;

Department of Justice, Fredericton, New Brunswick, for the Attorney General for New Brunswick;

Frank Iacobucci, Ottawa, Ontario, for the Attorney General of Canada;

Ministere de la Justice, Sainte-Foy, Quebec, for the Attorney General of Quebec;

Katharine F. Braid, Toronto, Ontario, for Canadian Pacific Limited.

This appeal was heard on May 8, 1987, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and L'Heureux-Dubé, JJ., of the Supreme Court of Canada. The following decision was delivered in both official languages by the Court on December 15, 1988.

Le Dain, J., took no part in the judgment.