The Queen v. Spence / The Queen v. Bradshaw

The Queen v. Spence / The Queen v. Bradshaw
Collection
Supreme Court Judgments
Date
1952-10-07
Report
[1952] 2 SCR 517
Judges
Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Canada
Subjects
State
Decision Content
Supreme Court of Canada
The Queen v. Spence / The Queen v. Bradshaw, [1952] 2 S.C.R. 517
Date: 1952-10-07
The Queen (Respondent) Appellant;
and
Trevelyn Spence (Suppliant) Respondent.
and
The Queen (Respondent) Appellant;
and
Ivan Bradshaw (Suppliant) Respondent.
1952: March 10, 11, 12; 1952: October 7.
Present: Rand, Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Crown—Master and Servant—Negligence of Servant—Scope of authority —Scope of employment—Soldier receiving unauthorized order—Duty to obey—Liability of Crown—The Exchequer Court Act, R.S.C. 1927, c. 34, s. 19(c). The Militia Act, R.S.C. 1927, c. 132, as amended by 1947 (Can.) c. 21, ss. 14, 20, 69(2), 115, 117 and 138.
In an action for damages arising out of the collision between a taxicab and an army truck owned by the Crown and driven by a soldier of the Royal Canadian Armoured Corps (Reserve), who on the order of his commanding officer was using the truck to convey a civilian baseball team, Cameron J., in the Exchequer Court, held that the accident was solely due to the negligence of the soldier; that the truck was used contrary to army regulations and that the commanding officer had no authority to use it for such purposes. He found further that the soldier was on duty and that it was within the scope of his duties to drive military vehicles when directed to do so by his commanding officer and not open to him to question such an order; and that as the soldier at the time of the accident was a servant of the Crown acting within the scope of his duties or employment, the principle of respondeat superior applied and the Crown was therefore liable for the damages sustained.
On appeal to this Court the finding of negligence was not questioned but the Crown contended that under the relevant legislation, army regulations and orders, the commanding officer had no authority to make use of the truck for the purposes described, and that while the soldier was under a duty to obey the lawful orders of his superior officer, the order in question was an unlawful one and that consequently in driving the truck pursuant thereto he was not acting within the scope of his duties or employment.
Held: (Rand and Locke JJ. dissenting), that in the circumstances of the case, the soldier was acting within the scope of his duties or employment.
Per: Kellock J. Under the circumstances of the case, there was nothing to indicate that the order was an unlawful order. It was therefore the duty of the soldier to obey. Keighly v. Bell 4 F & F 763 at 790, applied.
Per: Estey J. The commanding officer was authorized to promote recruiting. It was part of his duty to direct the use of Army vehicles for military purposes, including that of recruiting. In issuing the transport work ticket authorizing the use of the vehicle here in question he misconstrued the regulations, but this issue was so closely associated with that authority which it was his duty to exercise that it cannot be said that in doing so he acted without the scope of his employment. Neither could it be said of the sergeant to whom the transport work ticket was issued, nor of the driver, who received the instructions from him. Dyer v. Munday [1895] 1 Q.B.D. 742 at 746; Lloyd v. Grace, Smith & Co. [1912] A.C. 716 at 737; Percy v. Corporation of the City of Glasgow [1922] A.C. 299 at 306; Goh Choon Seng v. Lee Kim Soo [1925] A.C. 550 and Lockart v. C.P.R. [1942] A.C. 591, applied.
Per: Cartwright J. In the circumstances of the case it was the soldier's duty to obey the order and in doing so he was acting within the scope of his duty. Irwin v. Waterloo Taxi-Cab Co. Ltd. [1912] 3 K.B. 588. He did not know his commanding officer had no right to give him the order nor could it be said on the evidence that as a reasonable man he should have known. Evans v. Bartlam [1937] A.C. 473 at 479; Hodgkinson v. Fernie (1859) 11 C.B.N.S. 415 at 421.
Per: Rand J. (dissenting): It was not within the scope of the authority of the commanding officer, directly or indirectly, to give a lawful order which could make the driving of the truck an act of the soldier within the course of his duties. A campaign for recruits was authorized and the means was assumed to be in the commanding officer but its scope could not extend to the violation of express regulations dealing with the use of equipment by which he was bound. The trip was an act of an extra-service nature and there was nothing before the Court to warrant the conclusion that, since the trip would involve the expense of conveyance, a bus could be hired on behalf of the Government, nor that in the face of the regulations cited, the truck could be used for such a purpose. Irwin v. Waterloo Taxi-Cab Co. Ltd., supra, on which the Court below relied, distinguished. There the servant was bound to obey, here the only order the soldier was bound to obey was a lawful order. The special character of military relations might justify his obedience but that did not make the act done that of the Crown. If the commanding officer himself had driven the truck, he would not have bound the Crown, nor could he engage the Crown's responsibility by ordering a subordinate to do the same act.
Per: Locke J. (dissenting): The use of the Army truck to carry the baseball team was contrary to the Army Regulations and the commanding officer had no authority to authorize its use for such purpose. The general instructions given him to recruit could not be construed as authorizing the carrying on of such activities by means forbidden by Army Orders. The obligation of the soldier who drove the truck under The Militia Act and the King's Regulations and Orders was to obey lawful orders only. In acting in accordance with an order not lawfully given, he was not acting within the scope of his duties or employment within the meaning of s. 19(c) of the Exchequer Court Act (Bourton v. Beauchamp, [1920] A.C. 1001; Moore v. Donnelly, [1921], 1 A.C. 329 applied). The scope of the duties and employment of the soldier could not be extended by his mistaken understanding as to what they were (Wardley v. Enthoven (1917) 86 L.J.K.B. 309). APPEAL by the Crown from two judgments of the Exchequer Court of Canada, Cameron J. 1, allowing the suppliants' Petition of Right to recover damages because of the negligence of an officer or servant of the Crown acting within the scope of his duties or employment.
W. R. Jackett Q.C. and K. E. Eaton for the appellant. The trial judge erred in holding that the driver, Ryan, was acting within the scope of his duties or employment as a servant of the Crown at the time of accident. Ryan was not engaged on any business of the Crown in the right of Canada. The transportation of a baseball team was wholly unconnected with the business activities of the Government of Canada. Poulton v. London & Southwestern Ry. Co. 2; Halparin v. Bulling 3; Battistoni v. Thomas 4; Dallas v. Hinton 5. The Crown is not liable for what is done in the course of an undertaking which is not part of the Crown's business merely because some of the participants are servants of the Crown for other purposes and because there may be an indirect benefit from the undertaking. Offerdahl v. Okanagan Centre Irrigation & Power Co. 6. If Ryan received an "order" to go on a trip, it could not have been obeyed by him as a military order, since under the Militia Act, s. 69(2) as enacted by 1947 (Can.) c. 21, s. 22, he was not subject to laws, regulations and orders relating to the Canadian Army at the time it was communicated to him because: (i) he was not then on active service, (ii) it was not issued during a period of annual training or drill under the Act, (iii) it was not issued while he was on military duty, in the uniform of his unit or within any place used for the purposes of the Canadian Army, and (iv) it was not issued to him during any drill or parade of his unit at which he was present in the ranks or as a spectator nor was it issued to him when he was going to or from the place of the parade. When obeying an "order" not given within the limits laid down by this provision, Ryan was not acting within the scope of his duties or employment as a member of the Canadian Army. The order he received could not operate to extend such scope beyond the statutory limits established by s. 69(2). Cases such as Irwin v. Waterloo Taxi-Cab Co. 7; Smith v. Martin 8; Risdale v. S.S. Kilmarnock 9, apply only where the orders are such, as by terms of the servant's employment, he was bound to obey. They do not apply to an order requiring an inferior servant to do something outside the scope of his employment whether or not the inferior servant was aware of the limits imposed by the employer on the employment. Gaskell v. St. Helen's Colliery Co. 10.
The baseball club's trip was arranged by Reid probably as Director of the Prince Edward Island Department of Physical Fitness and certainly was not arranged by or on behalf of the Crown in the right of Canada or the Canadian Army. He could not as commanding officer of the Regiment have directed the Knights of Columbus ball team to take the trip nor have instructed their manager as such regarding the trip. His ex post facto justification of the use of the military vehicle on the ground that the trip was a recruiting activity is not borne out by the facts.
The trial judge erred in holding that Ryan was operating the military vehicle pursuant to an order given him as a member of the armed forces. Reid said the work ticket was issued to "enable" Ryan to proceed with a ball team to Souris and return and that he gave Ryan no other orders. Sergeant Charles Ryan said that Reid told him there was a trip for a baseball team and that he told the driver Harrison Ryan, where he was to pick it up and his destination. On the face of it, none of these arrangements had anything to do with the Canadian Army and none of the men who went on the trip gave evidence that at the time they thought that they did. Sergeant Ryan knew nothing of a recruiting campaign. In any event it was outside Driver Ryan's duties or employment to operate a military vehicle on a trip prohibited by regulations respecting the operation of such vehicles. It did not fall within the permitted use of vehicles to transport service personnel to sports fields because the persons being transported were not "service personnel" and because the trip was to a place more than twenty miles distant and no special authority had been obtained therefor. It was not permitted by the Regulation providing for transportation of "prospective army recruits" because the persons transported were not being transported as "prospective army recruits" and their transportation had not been authorized in the prescribed manner. The trip was not authorized by the special provision concerning the transportation of the Royal Canadian Cadet Corps because the persons being transported were not being transported as cadets and were not being transported in connection with a "duly authorized parade or training activity." The Regulations made by the Quarter Master General pursuant to s. 11 and Appendix VI of the King's Regulations and Orders, made by the Governor in Council under s. 139 of the Militia Act, limit the scope of employment of members of the armed forces operating military transport. Whelan v. Moore 11; Knowles v. Southern Ry. Co. 12; Bourton v. Beauchamp 13; Moore v. Donnelly 14. The regulations restricted the scope of Ryan's employment and it is immaterial whether he was aware of them. Wardle v. Enthoven & Sons Ltd. 15; Cartwright v. Shell-Mex & B.P. Ltd. 16. The front cover of "Regulations for Military Operated Vehicles, 1947" require that "this pamphlet must be carried at all times by every qualified driver of a military operated vehicle irrespective of rank …" The prohibitions made the trip something outside of Ryan's employment and not merely an unauthorized way of doing some work he was appointed to do. Compare Goh Choon Seng v. Lee Kim Soo 17 and Lockart v. C.P.R. 18.
Even if Ryan can be regarded as having acted pursuant to a military order he was not at the time of the accident acting within the scope of his duties or employment as a servant of the Crown because his services were loaned or transferred, for the purpose of the trip, either to the Knights of Columbus ball team, the Provincial Department of Physical Fitness, Reid, or some other person or authority other than the Crown in the right of Canada. Salmond on Torts 10 Ed. 86-7; Donovan v. Laing 19; Bull & Co. v. West African Shipping Agency 20; Century Insurance Co. v. Northern Ireland Road Transport Board 21.
D. L. Mathieson Q.C. and G. R. Foster for the respondents. The only point in issue is whether the trial judge was correct in finding that at the time of the accident Corporal Ryan, the admitted servant of the appellant was acting within the scope of his duties or employment within the meaning of the Exchequer Court Act, as amended, s. 19(c), as alleged by the respondents in the Petitions of Right. The respondents submit that the trial judge was correct in confining his inquiry to the ascertainment of the scope of Corporal Ryan's duties or employment in order to determine the jurisdiction of the Court and in holding that "while Reid committed a breach of the regulations regarding the use of military vehicles .... such breach did not narrow the scope of Ryan's duties or employment". His decision was based on the common sense principle that a soldier in Ryan's position must give implicit obedience to the orders given him by his commanding officer in the ordinary matters of the service, except where such orders are clearly contrary to law. The evidence clearly establishes that Brigadier Reid as Corporal Ryan's commanding officer gave the order to make the trip in the normal manner, that is by issuing a transport work ticket and by passing this order to Corporal Ryan through the sergeant in charge of transport. No evidence was submitted to show that on receipt of this order Corporal Ryan knew it was contrary to regulations, or, in fact, that Corporal Ryan had any knowledge of the regulations. Reid as commanding officer was obviously designated by the appellant as one authorized to give orders on its behalf. In exercising that authority he ordered Ryan to make the trip as a military driver, an order which by its nature Ryan would have the right to assume as coming under the authority of his commanding officer. It was therefore his duty as a soldier to obey. The trial judge was correct in applying to the facts of this case, Irwin v. Waterloo Taxi-Cab Co. Ltd. 22; Charlesworth on Negligence at p. 50. If the jurisdiction of the Court depends not only on the scope of Corporal Ryan's duties or employment but also on Brigadier Reid's, then the respondents submit that the appellant is still liable, despite the breach of the regulations by Brigadier Reid, because he was engaged in a matter incidental to and arising out of the business of the appellant. It is not disputed that the latter did an act which his master, the appellant, had not authorized, in permitting the army truck to make the journey without first obtaining the proper consent under the regulations. However the act was so connected with his duty to encourage recruitment, an act which the appellant authorized, that it may rightly be regarded as a mode—although an improper mode—of doing that act, and the appellant remains liable. Goh Choon Seng v. Lee Kim Soo 23; Limpus v. The General Omnibus Co. 24; Salmond on Torts 10 Ed., 90; Bayley v. Manchester 25.
It was urged on behalf of the appellant that Corporal Ryan could not be said to be the servant or agent of the appellant acting within the scope of his duties or employment because he was at all relevant times the servant or agent of the Knights of Columbus working for them and under their control. The burden of proof rests on the appellant, and this burden is a heavy one. Mersey Docks & Harbour Board v. Coggins & Griffith (Liverpool) Ltd. 26. Not only is the burden a heavy one but the presumption is all against there being such a transfer. Century Insurance Co. v. Northern Ireland Road Transport Board 27; Nicholas v. F. J. Sparks & Son 28; Chowdhary v. Gillot 29. Not only have the appellants failed to discharge the burden of proof and overcome the presumption but on the contrary the evidence clearly establishes that the appellant retained control over its admitted servant, Corporal Ryan. See also Jones v. Scullard 30.
In the Mersey Docks case, supra, Lord Porter at p. 17 points out that where both a mechanical device, in this case the army truck, and its driver are both loaned the inference is that the servant remains the servant of the general employer. See also Jones v. Scullard, supra. If therefore the vehicle and Corporal Ryan were loaned to the Knights of Columbus the presumption is against Corporal Ryan being transferred because in the words of Lord Wright in the Century Insurance case, supra, at p. 497, "he was bound to have regard to paramount directions given by the respondents (the permanent employers) and was to safeguard their paramount interests."
It was established that Corporal Ryan was paid by the appellant for the performance of his duties as a military driver on the day in question, and it was found as a fact by the trial judge that he was "undoubtedly on duty that day", therefore there can be no dispute that the appellant was the only person with power to dismiss him, and therefore retained control of his servant. No evidence was adduced to show that Ryan, either expressly or impliedly, consented to being transferred to the Knights of Columbus, and the absence of such consent implies that he remained the servant of the appellant. Mersey Docks case, supra, per Lord MacMillan at p. 14. Nor was it shown Ryan was working with the Knights in response to any request from them or under any agreement between them and the appellant. Clelland v. Edward Lloyd Ltd. 31. The evidence as a whole, and the findings of fact by the trial judge, point conclusively to the fact that only "the use and benefit" of Corporal Ryan's work could be considered as transferred but that Corporal Ryan at all times remained the servant of the appellant.
Rand J. (dissenting) :—I am unable to agree that it was within the scope of the authority of Col. Reid, directly or indirectly, to give a lawful order which could make the driving of the lorry an act of the corporal within the course of his duties as a member of the 17th Reconnaissance Regiment, Reserve, Armoured Corps.
The original arrangement had been that a baseball team from Charlottetown, which the regiment sponsored, should go to Souris, but for some reason this could not be carried out; and Col. Reid, in order not to disappoint the community of Souris, which he thought might do harm to recruitment there, arranged to send another sponsored by the Knights of Columbus. Both of these teams played in a local baseball league, and the players included members of the cadet corps of one of the city schools, affiliated with the regiment.
Undoubtedly a campaign for recruits to the regiment was authorized and encouraged, and an area of discretion in means was assumed to be in the Officer Commanding; but its scope could not extend to the violation of express regulations by which he was bound. There were such regulations that dealt with the use of equipment, and they took their character from the underlying separateness of army action from civilian action, a separateness amounting to the creation, in some respects and to some degree, of a relation analogous to a military imperium. Basically, army action of any sort is confined to army personnel and equipment: civilians are excluded; but this has necessarily given way, under the impact of modern developments, to a widening scale of interrelation between the army and civilians, either as private individuals or as public; and what is to be decided is whether the steps taken were within or beyond the range of what could reasonably be said to have been authorized for recruiting purposes.
Relevant rules are to be found in a compilation of "Regulations governing Military Operated Vehicles, 1947," published in December of that year but effective at the time of the accident. For instance, there is s. 22 which, in part, reads:—
Military transport vehicles may be used to transport service personnel to sports fields, playgrounds and recreational centres, subject to the following conditions:—
* * *
(d) Under no circumstances will civilians or persons other than service personnel be transported.
S. 25(a) provides:—
Civilians will not be transported in military vehicles except under the following circumstances:—
* * *
(d) Where adequate educational, shopping or entertainment facilities do not exist for dependents of officers and other ranks at units outside urban areas and public transportation is not available from unit boundaries, the Officer Commanding a Command may authorize the use of Service transport not required for other duties. Transport authorized shall carry dependents only between the unit and the nearest public transportation, or the nearest facilities, whichever is the closer. Paragraphs (a), (b) and (c) deal with civilians employed in the Department of National Defence, civilian contractors or their employees engaged on work for the Department, and civilian official visitors, lecturers, members of committees acting for or in association with the Department, etc.
Ss. 27 and 28 provide:—
Members of the Royal Canadian Cadet Corps may be permitted to ride in military transport vehicles when required to do so in connection with a duly authorized parade or authorized training activity.
* * *
As the transportation of cadets in a military vehicle at any other time is not authorized, should the cadet be injured or killed while being transported other than on a parade or in the course of training as set out above, sections 73 to 80 inclusive of the Regulations for the Cadet Services of Canada, 1942, would not apply to provide compensation and medical treatment as set out therein. The liability of the Department in such a case would be merely that of the owner of a vehicle to a gratuitous passenger.
Now the team did not make the trip as cadets nor as substitutes for cadets, nor was it in any sense a cadet or service activity such as is contemplated either by the Militia Act or the regulations. The trip was an act of an extra-service nature, of which the most that can be said is that it was promoted by the Commanding Officer for the indirect purpose mentioned. That being so, the act was either within or beyond the scope of the officer's authority: there is no room for the suggestion of carrying out an authorized act in a forbidden manner.
The trip would necessarily involve the expenses of the conveyance: could they be incurred, say, by hiring a bus on behalf of the Government? There is nothing before us either express or by implication of any sort or description to warrant the conclusion that they could be, nor that, in the face of these regulations, the lorry could be used for such a purpose. Voluntary recruitment has for generations been the object of local inducement and encouragement; but, so far as they have not been private, they have always been by way of military displays or advertisements in which the authorities preserved an exclusively military action. If the Commanding Officer could send a private baseball team over 50 miles in a military lorry as a military proceeding, I see no limit to the kind of activity, whether of sports, dancing, music, dramatics, or any other mode of arousing the interest and enthusiasm of young people, that could be resorted to in a similar manner. Such an extension of governmental action must find its authority in something more specific than the informal approval by general officers of stimulation to local enlistment.
Cameron J. found against the Crown on the ground that since the corporal was bound to execute the orders of the Commanding Officer, the act of driving was within the course of his employment. He founded himself on the case of Irwin v. Waterloo Taxicab Company Limited 32. There a taxi driver carried out the instruction of the General Manager of the business in driving him to see private friends, not on the business of the company. The driver had no reason to believe that the trip was not properly authorized, and it was made in a manner indistinguishable from the ordinary course of his work. But it was agreed that the driver was under a duty to obey the direction and to make the trip, and the Court of Appeal held the company liable for his negligence during the course of it.
The decision raises the question whether, if the General Manager himself had taken over the wheel and had driven the automobile on the same errand, the company would have been liable: if not, how the General Manager could raise the liability of the company through an order to the driver I find it difficult to see. In this I assume that the General Manager's authority extended so far as to enable him, if on an occasion he saw fit, and in the course of his employer's business, to drive the car himself. Moreover, there does not appear to have been any prohibition against the General Manager being a passenger, subject of course to the payment of the regular fare.
The fact that the servant there was bound to obey the order given him distinguishes the case from this. Here, the only order the corporal was bound in law to obey was a lawful order. It may be that, in his own interest, he was quite justified in obeying it and he would incur no discipline or responsibility for so doing; and it is clear that the special character of military relations necessitates such a justification except where the order is patently illegal. But that does not make the act done the act of the Crown. If Col. Reid himself had driven the lorry, he would not, in my opinion, have bound the Crown even though he could have done so in the course of admittedly military purposes. If that is sound, how he could engage the Crown's responsibility by ordering a subordinate to do the same act I am quite unable to appreciate.
I would therefore allow the appeal and dismiss the action with costs throughout if they are demanded.
Kellock J.:—Negligence on the part of the driver of the military vehicle here in question being no longer in question, the determination of this appeal depends solely on whether or not that negligence occurred while the driver was "acting within the scope of his duties or employment" within the meaning of s. 19(c) of the Exchequer Court Act. Mr. Jackett relies upon the regulations to which he referred in support of his contention that the vehicle could not, at the relevant time, be considered as having been engaged upon any business of the Crown. The evidence of Colonel Simmons, called on behalf of the Crown, furnishes, however, an additional standpoint from which this appeal must be considered.
According to this witness, during the period when the event here in question took place, both the Reserve and Active forces of the Canadian Army were in the "throes" of recruiting; "the war had finished in 1945 and we were stepping up the Reserve Forces and Permanent Forces."
With respect to the regulations as to the use of military vehicles, the witness said: "Certain things are taken for granted, that we could use a vehicle for recruiting." In particular he testified:
Q. I believe you told my friend on cross-examination that there was nothing within your knowledge in these regulations to prohibit the use of a military-operated vehicle for recruiting? Is that what you said?
A. Yes.
Q. Well, not authorizing the use of one of these vehicles for recruiting purposes, would a Commanding Officer still be subject to the limitations of the use of that vehicle imposed by these Regulations?
A. Not necessarily. If it is agreed or authorized that the—there is nothing in these Regulations which says a vehicle cannot be used for a purpose, and if it is agreed that it is a recruiting purpose, the vehicle can be used, and it would be quite all right, naturally. With respect to the regulations themselves, the Crown relies in the first place upon Order 4558 of June 7, 1944, and particularly upon para. 3, which limits the use of army vehicles to "official purposes." The interpretation of this order is not unaffected by paras. 1 and 2 from which it appears that the order arose out of the then existing shortage of gasoline "in order to achieve economy." In my opinion, the use of a vehicle for recruiting purposes, particularly in the light of the evidence of Colonel Simmons, would be a use for an "official" purpose, and the commanding officer, to whom was committed the duty of recruiting his regiment up to its establishment, would of necessity have to judge as to what use would or would not be proper for such purpose, in the absence of some express provision with which any proposed use would be in conflict.
Colonel Reid considered that in what he directed he was carrying out his instructions with respect to increasing the strength of the regiment under his command. In the methods adopted by him to that end, he necessarily had a considerable discretion. If, therefore, there could be found a direct prohibition as to the use of transport vehicles in connection with recruiting, the question would arise as to whether disobedience would limit the "sphere of the employment" or merely amount to "a direction not to do certain things, or to do them in a certain way within the sphere of the employment;" Plumb v. Cobden 33, per Lord Dunedin at 67. If it were necessary to decide that question, I should say that the sphere of employment was not affected by the disobedience, if any, of Colonel Reid, and that, therefore, the particular regulations to which we were referred, notably with respect to the use of military vehicles for the transport of "service personnel for recreational purposes," the transport of "civilians employed by the Army," "prospective recruits" and cadets, do not assist the appellant.
If there were doubt as to whether or not this should be considered to be the right result, there would still be, in my opinion, a further question, namely, as to the duty of the driver of the vehicle when the order from Colonel Reid was given to him. In Keighly v. Bell 34, Willes J. expressed himself thus:
I believe that the better opinion is, that an officer or soldier, acting under the orders of a superior—not being necessarily or manifestly illegal —would be justified by his orders.
It is obvious that the object with which an order is given can determine its lawfulness. An officer going on military-duty orders a soldier to fetch his horse. This would be a valid order. If, however, the officer wanted his horse to go hunting or to take an ordinary ride for pleasure, this would take the order out of the category of "lawful" commands.
The authors of the Manual of Military Law, 1929 edition, p. 18, express the view that
So long as the orders of the superior are not obviously and decidedly in opposition to the law of the land, the duty of the soldier is to obey and (if he thinks fit) to make a formal complaint afterwards.
A similar view prevails in the United States. In Davis on "The Military Law of the United States," a former Judge Advocate General, in speaking of "lawful" orders of a superior officer, says at p. 381:
If a question arises with respect to their legality, and the order is not on its face clearly and obviously in contravention of law, it is the duty of the inferior to resolve such doubt in favour of obedience, relying for justification on the form of the order so received and obeyed.
In my opinion, the law is sufficiently stated for the purposes of the case in hand by Willes J. above. Even in time of peace, military discipline could not otherwise be maintained.
If Colonel Reid in good faith, as he did, considered in giving the order here in question that he was carrying out his duty as commanding officer of the regiment in connection with the current effort to bring it up to strength, it is impossible to say that the Corporal who received the order to drive the vehicle should have considered he had received an unlawful order.
With respect to s. 117 of the Militia Act, R.S.C. 1927, c. 132, it may be that illegality in fact would constitute a defence to any proceeding under that section, but I do not think that that section establishes the proposition that illegality in fact is sufficient to establish that a soldier, in carrying out a command of a superior officer, is not acting within the scope of his duties or employment within the meaning of the Exchequer Court Act, if the order is not "necessarily or manifestly" illegal.
I would dismiss the appeal with costs.
Estey J. :—The suppliants Bradshaw and Spence, respectively owner and driver of a taxicab, were awarded damages against Her Majesty in the Exchequer Court for injuries suffered when the taxicab collided with an Army truck upon a highway between Charlottetown and Souris, Prince Edward Island, about 1:30 on the morning of July 24, 1947.
The learned trial judge found that Corporal Ryan's negligent driving of the Army truck was the sole cause of the collision and no appeal is taken therefrom.
The Army truck was, at all times material hereto, in possession of the 17th Prince Edward Island Reconnaissance (RECCE) Regiment, a reserve unit of the Canadian Army then under the command of Lieutenant Colonel Reid. Corporal Ryan was a member thereof. As such, for the purpose of determining the liability of Her Majesty in this action, both Lieutenant Colonel Reid and Corporal Ryan are deemed to be servants of the Crown (Exchequer Court Act, S. of C. 1923, c. 25 s. 50A). The essential issue is, therefore, whether Corporal Ryan, at the time the injuries were suffered, was acting within the scope of his employment within the meaning of s. 19(c) of the Exchequer Court Act (R.S.C. 1927, c. 34).
19. The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:—
* * *
(c) Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment.
Lieutenant Colonel Reid, with the intention of promoting recruiting, arranged for a ball game between the Regiment-sponsored RECCE junior team of Charlottetown and a local Souris team to be played at Souris on July 23, 1947. The RECCE team, for some reason, could not make the trip and Lieutenant Colonel Reid arranged that the Knights of Columbus, another junior team that played in the same league with the RECCE team at Charlottetown, would substitute. He directed their transportation in an Army truck and the injuries here claimed for were suffered while the Army truck was transporting the ball team and its suppprters back to Charlottetown.
As Commanding Officer, Lieutenant Colonel Reid was authorized to promote and was at all times material hereto promoting recruiting. As one witness stated, the Regiment was then in the "throes of recruiting." There were no regulations dealing with recruiting and it must follow that as Commanding Officer it was his duty to exercise his discretion in the development of a programme that he might deem applicable and effective in the area allotted to him. As Lieutenant Colonel Rogers, then second in command, deposed:
The policy of the Regiment in regard to recruiting was we were given certain areas in Queen's and King's counties, in which we were permitted to recruit, and we were to use the means at our disposal to interest young lads into joining the Reserve Army.
As part of the recruiting programme Lieutenant Colonel Reid concluded that good will should be maintained between the Army and the civilian population and had, as a consequence, upon different occasions transported the regimental band for entertainment. As he states, they were told at all times "to co-operate with civilian people." He accordingly arranged a ball game at Souris with a view to demonstrating to the young men that the Army was interested in many activities including sport and thereby to add to their interest in the Army. In all this he was not serving any purpose of his own or any ulterior or other purpose inconsistent with his position and duty to promote recruiting. (Whatever suggestion was made to the contrary was not established by the evidence.) Even if it be admitted he was in error, the evidence justifies no other conclusion but that he believed he was promoting recruiting and acting within the scope of his authority.
A servant may, of course, while purporting to act for his master, do so in a manner that is outside the scope of his employment, but the conduct here in question is not sufficiently far removed to justify such a conclusion. The learned trial judge did not go further than to suggest "it is difficult to agree with his opinion that the game actually played by the Knights of Columbus team had anything to do" with the subsequent enlistments from Souris. That, however, is far from saying that Lieutenant Colonel Reid was not, in arranging the game, acting within the scope of his employment in the promotion of his recruiting programme.
The learned trial judge did find that the direction to use the Army truck for the transportation of this ball team "was contrary to the regulations and that Colonel Reid had no authority to use it for such purposes," and continued:
I do not question his good faith in the matter. At the time he was busily engaged in an effort to secure recruits for his regiment, and doubtless thought that an exhibition baseball game, between a team sponsored by the Regiment and the young men of Souris, would assist in recruiting.
With the greatest possible respect, it would appear that in the foregoing sufficient weight has not been given to the distinction between the field of actual authority and the scope of employment. Lord Esher gives expression to this distinction when he states:
The liability of the master does not rest merely on the question of authority, because the authority given is generally to do the master's business rightly; but the law says that if, in course of carrying out his employment, the servant commits an excess beyond the scope of his authority, the master is liable. Dyer v. Munday 35.
This difference is again emphasized in Story on Agency, s. 452:
* * * he (the principal) is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances, or misfeasances, and omissions of duty, of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade the acts, or disapproved of them. Bright & Co. v. Kerr 36.
The foregoing statement of the learned author has been repeatedly quoted, particularly in McGowan & Co. Ltd. v. Dyer 37; Lloyd v. Grace, Smith & Co. 38; Percy v. Corporation of City of Glasgow 39. See also Willes J. in Bayley v. Manchester, Sheffield, and Lincolnshire Ry. Co. 40.
In W. W. Sales Limited v. City of Edmonton 41, it is pointed out that the mere fact the agent's act may constitute a criminal offence does not necessarily take it outside the scope of his employment. Mr. Justice Hudson, delivering the judgment of the majority of this Court, stated at 471: