Canadian National Railway Co. v. Newfoundland and Clarke, (1986) 65 Nfld. & P.E.I.R. 346 (NFTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 24, 1986
• Jurisdiction: Newfoundland and Labrador
• Citations: (1986), 65 Nfld. & P.E.I.R. 346 (NFTD)

CNR v. Nfld. (1986), 65 Nfld. & P.E.I.R. 346 (NFTD);

    199 A.P.R. 346

MLB headnote and full text

Canadian National Railway Company (plaintiff) v. Her Majesty the Queen in Right of Newfoundland (first defendant) and William Clarke (second defendant)

(1983 No. 2461 St. J. (D.C.))

Indexed As: Canadian National Railway Co. v. Newfoundland and Clarke

Newfoundland Supreme Court

Trial Division

Adams, J.

October 26, 1986.

Summary:

A portion of C.N.R.'s telecommunications cable and the pole supporting it were destroyed when the wire and pole were struck by a sand truck operated by Clarke, an employee of the province. C.N.R.'s wire was 16.24 feet above the road surface in compliance with a Federal order which provided that the minimum clearance for wires over highways was that prescribed by the Canadian Standards Association of 14 feet 6 inches. The Provincial Department of Transportation and Communications (Amendment) Act provided that the minimum clearance was 18 feet for wires across the highway. C.N.R. brought an action against the province and its employee for damages.

The Newfoundland Supreme Court, Trial Division, allowed C.N.R.'s action. The court held that C.N.R. was not bound by the Provincial Act where the operations of C.N.R. were under federal jurisdiction pursuant to s. 92(10)(a) of the Constitution Act 1867.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - The Provincial Department of Transportation and Communications (Amendment) Act provided that the minimum clearance for wires across the highway was 18 feet - A Federal General Order of the Canadian Transport Commission provided that in accordance with the Canadian Standards Association standard, the minimum clearance for wires over highways was 14 feet 6 inches - C.N.R.'s wires were 16.24 feet above the road when they were destroyed by an employee of the province - The Newfoundland Supreme Court, Trial Division, held that C.N.R. was operating an interprovincial communications system which was subject to federal jurisdiction - The court held that the two pieces of legislation were inconsistent because compliance with one would result in breach of the other; therefore, the federal legislation was paramount - See paragraphs 8 to 22.

Constitutional Law - Topic 6644

Federal jurisdiction - Interprovincial works and undertakings - Telecommunications - C.N.R. operated a communications system in Newfoundland which linked up with other systems across Canada - The Newfoundland Supreme Court, Trial Division, held that C.N.R. was operating an interprovincial communications system - The court stated that regulatory control of the system was within the federal jurisdiction and not provincial jurisdiction - See paragraphs 8 to 16.

Torts - Topic 167

Negligence - Evidence - Presumption of negligence - Res ipsa loquitur - Inference of negligence - A portion of C.N.R.'s communication cable and the pole supporting it were destroyed when they were struck by a sanding truck operated by an employee of the province - At the time of the accident the operator of the truck had the dump fully extended (approximately 17 feet) - C.N.R.'s wires were approximately 16.24 feet above the road - The Newfoundland Supreme Court, Trial Division, held that the driver, and therefore the employer, were negligent in the operation of the truck - The court stated that the driver had a duty to ensure that the truck would pass under the wires without hitting them - The court applied the doctrine of res ipsa loquitur - See paragraphs 24 to 26.

Cases Noticed:

Re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304, refd to. [para. 12].

Attorney General for Ontario et al. v. Winner et al., [1954] A.C. 541, refd to. [para. 12].

Ross v. Registrar of Motor Vehicles and the Attorney General for Ontario, [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 13].

Bell v. Attorney General of Prince Edward Island, [1975] 1 S.C.R. 25; 1 N.R. 27, refd to. [para. 13].

Carpenter v. C.N.R., [1955] 3 D.L.R. 492, refd to. [para. 13].

Michaud v. C.N.R. Co., [1924] 3 D.L.R. 1, refd to. [para. 13].

Dominion Building Corporation Ltd. et al. and R., [1933] A.C. 533, refd to. [para. 13].

Her Majesty the Queen in Right of the Province of Ontario v. Board of Transport Commissioners, [1968] S.C.R. 118, consd. [para. 17].

Multiple Access Limited v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181; 138 D.L.R.(3d) 1, refd to. [para. 21].

Statutes Noticed:

British North America Act - see Constitution Act, 1867.

Canadian National Railway Act, R.S.C. 1970, c. C-10, sect. 26 [para. 5].

Constitution Act, 1867, sect. 91(29) [para. 15]; sect. 92(10)(a) [paras. 10, 15].

Department of Transportation and Communications Act, S.N. 1973, c. 36, sect. 48(3) [paras. 6, 7, 14, 18, 20 to 22].

Department of Transportation and Communications (Amendment) Act, S.N. 1975-76, c. 38, sect. 2 [paras. 6, 14].

Interpretation Act, R.S.N. 1970, c. 182, sect. 13 [para. 11].

National Transportation Act, R.S.C. 1970, c. N-17, generally [para. 8].

Railway Act, R.S.C. 1970, c. R-2, generally [para. 8].

Authors and Works Noticed:

Clerk and Lindsell on Torts (15th Ed.), p. 486, paras. 10-113 [para. 25].

Hoggs, Peter W., Constitutional Law of Canada (2nd Ed.), p. 484 [para. 15].

Counsel:

Elizabeth Heneghan, for the plaintiff;

John McCarthy, for the defendants.

This case was heard on October 24, 1986, before Adams, J., of the Newfoundland Supreme Court, Trial Division, who filed the following judgment on October 26, 1986: