Co-operators Insurance Association v. Kearney

Co-operators Insurance Association v. Kearney
Collection
Supreme Court Judgments
Date
1964-11-19
Report
[1965] SCR 106
Judges
Taschereau, Robert; Cartwright, John Robert; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett
On appeal from
Ontario
Subjects
Motor vehicles
Decision Content
Supreme Court of Canada
Co-operators Insurance Association v. Kearney, [1965] S.C.R. 106
Date: 1964-11-19
Co-operators Insurance Association (Defendant) Appellant;
and
Robert Henry (Bert) Kearney (Plaintiff) Respondent.
1964: June 22; 1964: November 19.
Present: Taschereau C.J., Cartwright, Judson, Ritchie and Spence JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Motor vehicles—Negligence—Car owned by insurance company in collision with train—Passenger and driver fellow servants of company and acting in course of their employment as such servants—Driver negligent—Liability of company for injuries to passenger—Driver immune from liability—The Highway Traffic Act, R.S.O. 1950, c. 167, s. 50(2) [now R.S.O. 1960, c. 172, s. 105(2)]—The Workmen’s Compensation Act, R.S.O. 1960, c. 437, ss. 123‑125.
The plaintiff, who conducted a real estate and insurance business, was an agent of the defendant company in soliciting insurance and servicing policyholders. In the event of a claim being made by any policyholder to whom the plaintiff had sold a policy, it was the general practice of the company to send its own adjuster into the area and it was recognized to be part of the plaintiff’s duty to introduce this adjuster to the policyholder and assist on the adjustment. On such an occasion, while returning to his office, the plaintiff suffered serious injuries when the automobile in which he was riding collided with a train. The automobile was owned by the company and was being driven with its consent by its adjuster, one L. The collision was caused solely by the negligent driving of L. The trial judge gave judgment against the company and L; on appeal, the Court of Appeal affirmed the judgment against the company but dismissed the action against L. Both Courts proceeded on the view that at the moment of the collision the plaintiff and L were fellow servants of the company and acting in the course of their employment as such servants. A further appeal by the company was brought to this Court.
Held: (Cartwright and Ritchie JJ. dissenting): The appeal should be dismissed.
Per curiam: Part II of The Workmen’s Compensation Act, R.S.O. 1960, c. 437, did away with the defence of common employment in this case.
Per Taschereau C.J. and Spence J.: The relationship between the plaintiff and the defendant at the time of the accident was, for the limited purpose of the adjustment and on the limited occasion, not solely that of insurance agent and insurance company but was that of master and servant. The defendant owed a duty by implied term of contract to the plaintiff to take reasonable care to provide for his safety when he was engaged in the course of his employment, and there was by the negligence of L a breach of that duty, a breach for which the defendant as the employer of L was responsible in law.
Also, s. 124 of The Workmen’s Compensation Act gave the plaintiff a statutory right of action for damages which occurred “by reason of the negligence of any person in the service of his employer (i.e., L) acting within the scope of his employment”. There was no doubt that L at the time was certainly acting within the scope of his employment.
The plaintiff, therefore, was entitled to succeed either on the basis of the common law liability of his employer or on the basis of the statutory liability created by s. 124 of The Workmen’s Compensation Act.
The argument that s. 50(2) of The Highway Traffic Act, R.S.O. 1950, c. 167 (now R.S.O. 1960, c. 172, s. 105(2)) barred the right of the plaintiff to recover was rejected. If the plaintiff had a cause of action against his master by reason of the negligence of the master’s servant, subs. (2) did not take it away, even though at the time it arose the plaintiff was being carried in his employer’s motor vehicle. Harrison v. Toronto Motor Car Ltd. and Krug, [1945] O.R. 1, approved. All that s. 50(2) of the Act did was to bar recovery against an owner or driver. The action upon the tort was not barred against the employer.
Per Judson J.: The appeal should be dismissed in view of the decision in Harrison v. Toronto Motor Car Ltd. and Krug, supra, which could not be distinguished from the present case and unless the Court was ready to overrule that case, it must govern.
Per Cartwright J., dissenting: If, as argued by the plaintiff, it was decided in Harrison v. Toronto Motor Car Ltd. and Krug, supra, that although the liability for the injury caused directly and solely by L’s negligence was taken away as against him the result was that, while L could not be sued, the liability remained and could be enforced against the defendant, then that decision was wrong and ought not to be followed.
The effect of s. 50(2) of The Ontario Highway Traffic Act, R.S.O. 1950, c. 167 (now R.S.O. 1960, c. 172, s. 105(2)), was not merely to afford a personal or procedural defence to the driver but to take away the passenger’s right of action founded upon the driver’s negligence.
Where the only breach of the duty to take care for the safety of the passenger, whether owed by the driver or the employer of the driver or the employer of the passenger, consists of negligent driving on the part of the driver and liability to the passenger for that negligence is negatived (not because of some personal immunity from suit possessed by the driver because of a particular relationship such as that of husband and wife existing between the passenger and the driver but by an express statutory provision applying to the case of every passenger who is being carried gratuitiously) the passenger’s right of action is gone because the negligent act, liability for which is negatived, is as much an essential part of the passenger’s cause of action against his own employer and of his cause of action against the employer of the driver as it is of his cause of action against the driver.
Per Ritchie J., dissenting: By reason of the provisions of s. 105 (2) of The Highway Traffic Act, R.S.O. 1960, c. 172, the driver’s act which occasioned the injury did not constitute a breach of duty giving rise to liability against him and accordingly the defendant could not be held vicariously liable for this act under the rule of respondeat superior because, as was said in Staveley Iron & Chemical Co. Ltd. v. Jones, [1956] A.C. 627, “Where the liability of the employer is not personal but vicarious… if the servant is immune so is the employer”. The plaintiff was not in the car when the accident occurred pursuant to any obligation which was binding on him in the matter of his employment; therefore there was no direct personal duty resting on the defendant with respect to the safe carriage of the plaintiff.
The effect of s. 124 of The Workmen’s Compensation Act was to make an employer responsible to an injured employee for the negligent acts of a fellow servant done in the course of his employment which caused such injury in the same way that the employer was responsible to the rest of the world for such negligent acts. That section did not have the effect of creating a personal liability in the employer if the injured employee was not acting in the course of his employment at the time when he sustained the injury.
[Hughes v. J.H. Watkins & Co. (1928), 61 O.L.R. 587; Dufferin Paving and Crushed Stone Ltd. v. Anger et al., [1940] S.C.R. 174, distinguished; Lewis v. Nisbet & Auld Ltd., [1934] S.C.R. 333; Jarvis v. Oshawa Hospital, [1931] O.R. 482; Humphreys v. City of London, [1935] O.R. 295; Wiznoshi v. Peteroff, [1938] 2 D.L.R. 205, applied; Smith v. Moss et al., [1940] 1 K.B. 424; Falsetto v. Brown et al., [1933] O.R. 645; Wilsons & Clyde Coal Co. v. English, [1938] A.C. 57; Jurasits v. Nemes, [1957] O.W.N. 166; Priestly v. Fowler, 150 E.R. 1030; Radcliffe v. Ribble Motor Services Ltd., [1939] A.C. 215; Broom v. Morgan, [1953] 1 Q.B. 597; Staveley Iron & Chemical Co. v. Jones, [1956] A.C. 627; Harvey v. R. G. O’Dell Ltd. et al., [1958] 1 All E.R. 657; The King v. Anthony, [1946] S.C.R. 659; St. Helen’s Colliery Co. v. Hewitson, [1924] A.C. 59; Dallas v. Home Oil Distributors Ltd., [1938] S.C.R. 244, referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario[1], dismissing an appeal from a judgment of Haines J. Appeal dismissed, Cartwright and Ritchie JJ. dissenting.
B. O’Brien, Q.C., and E. Sabol, for the defendant, appellant.
J.D. Arnup, Q.C., and J.J. Carthy, for the plaintiff, respondent.
The judgment of Taschereau C.J. and Spence J. was delivered by
SPENCE J.:—This is an appeal from the judgment of the Court of Appeal for Ontario1 given on September 11, 1963, which dismissed the appeal from the judgment of Haines J. given on February 25, 1963, whereby he awarded damages of $16,800 in favour of the plaintiff.
The following questions arose and must be answered for the determination of the judgment herein:
1. Was the finding of the learned trial judge that at the time of the accident the plaintiff Kearney was in a position where the defendant and its servants, including Livesey, owed to him a duty to carry him with due care correct? Haines J., at trial, found the plaintiff was in such a position, and continued:
If, however, it is necessary to put a label on the relationship, I find that for the limited purpose of adjusting the loss there was a master and servant relationship.
2. Alternatively, was there a liability upon the appellant on the basis that Livesey was the appellant’s servant no matter whether the plaintiff was or was not such servant or was s. 50(2) of The Highway Traffic Act, R.S.O. 1950, c. 167, intended to take away the action of a gratuitous passenger against the master for the negligence of the servant? This alternative need only be considered if it is determined that the plaintiff was not in a position where he could require that he be carried with reasonable care, i.e., if proposition number 1 were decided against the plaintiff.
3. Has the plaintiff an independent cause of action under s. 124 of The Workmen’s Compensation Act, which independent cause of action was not barred by the provisions of The Highway Traffic Act, supra?
Proposition one entails a finding that Kearney was a servant of the appellant and that Harrison v. Toronto Motor Car Ltd. and Krug[2] was correctly decided. I am of the opinion that the finding that Kearney was a servant is very largely a finding of fact and a finding of fact which the trial judge expressly made upon what he described as conflicting evidence. That finding has been expressly approved by Aylesworth J.A. in his reasons in the Court of Appeal. Counsel for the appellant in this Court sought to avoid the effect of concurrent findings of fact below by purporting to put his case only on the evidence given by the plaintiff Kearney and by those witnesses called on his behalf. This still does not lessen the invulnerability of the finding of fact, which may be determined by a trial judge’s scrutiny of a witness’s testimony and particularly his testimony on cross-examination, so that the trial judge considering evidence as a whole comes to his opinion as to the facts and inferences which should be drawn from that testimony. In so far as the proposition entailed the finding of law, I am in agreement that the test of whether a master and servant relationship existed has been rightly put in many cases, and may be taken from Halsbury, 3rd ed., vol. 25, p. 452:
In general, the distinction between a contract of service and a contract for work and labour or for service is similar to that which exists between a contract of service and a contract of agency, namely, that in the case of a contract of service the master not only directs what work is to be done but also controls the manner of doing it whereas in the case of a contract for work and labour or a contract for service, the employer is entitled to direct what work is to be done but not to control the manner of doing it.
The evidence established that Kearney was an insurance agent employed by the appellant under a contract which contract was filed as exhibit 2. Paragraph 6 of that contract provided that the agents agreed “to service policyholders satisfactorily and to report to home office promptly any new information affecting the desirability of a risk”. The evidence established that, probably under the direction and insistence of the former district manager Lang, the plaintiff and others under contract as agents with the appellant company were constantly required to attend policyholders, discuss with them the settlement of claims, and as to certain types of claims actually adjusting the losses themselves. It is true that the plaintiff and other agents of the appellant company were insurance agents holding licence under The Insurance Act, R.S.O. 1950, c. 183, and that various sections of that Act entitled persons so licensed to “carry on business in good faith as an insurance agent” but I am of the opinion that a person holding such licence may nonetheless at any rate on a specific occasion and for a specific purpose become the servant of the insurance company. It is also true that Aylesworth J.A. in Baldwin et al v. Lyons et al.[3], at p. 691, said:
It is quite clear, I think, and indeed no one has made any submission to the contrary, that so far as this agreement is concerned, the position of Lyons was that of an independent contractor. In my view, therefore, it would require cogent and unequivocal evidence to demonstrate that the parties in fact changed that relationship into one of master and servant.
It must be remembered that the plaintiff, when Livesey, the acting district manager of the appellant company, attended his office in Meaford and requested the plaintiff to accompany him to interview the policyholders, demurred pointing out that he was expecting to be engaged in some transactions in reference to his business as real estate agent. Livesey insisted, however, and the plaintiff not only accompanied Livesey to the policyholder’s place of work but then accompanied Livesey and the said policyholder to the garage where the automotive vehicle, the subject of the claim, had been taken, there remained present during the interview between Livesey and the garage keeper, then returned with Livesey and the policyholder to the latter’s place of work and there obtained from the policyholder his proof of loss.
Before the Court of Appeal, it was evidently argued that upon the latter duty having been completed, the service, if any, ceased and that therefore the plaintiff was not in the course of employment when he was injured as he was driven back to his own place of business. Aylesworth J.A., in his reasons, said:
…he had been transported to the place where the work of adjustment occurred in the car of the defendant Livesey and for the very purpose of engaging in that endeavour; he was entitled as part of their joint work as employees of the other defendant, to be returned in the same vehicle to the place whence he came; his employment in that endeavour continued, in our view, until that had been done.
I agree with that statement.
In this Court, it was argued that the plaintiff was not a servant because he could have performed his task of servicing the policyholder in reference to the adjustment by driving his own automobile. I am of the opinion that the evidence refutes that suggestion. The district manager Livesey did not know where the policyholder’s place of work was situated and had not met the policyholder. For the plaintiff to use his own automobile would have entailed the silly performance of two cars being driven down the odd few blocks to that place of work, one containing the district manager and the other containing the plaintiff who was to introduce the policyholder to the district manager. Similarly, as the same two men left that factory and proceeded to the garage, with whom was the policyholder to ride, the district manager whom he did not know, or the plaintiff whom he did know? I am of the opinion that the procedure of riding in the automobile driven by the district manager was the efficient way by which the plaintiff could carry out the duties which the district manager then and there directed him to carry out and that it was intended by the district manager that the said duties should be so carried out. Fleming in his valuable text on the law of Torts, 2nd ed., at p. 328, states:
Under the pressure of novel situations, the courts have become increasingly aware of the strain on the traditional formulation [of the control test], and most recent cases display a discernible tendency to replace it by something like an ‘organization’ test. Was the alleged servant part of his employer’s organization? Was his work subject to co-ordinational control as to ‘where’ and ‘when’ rather than ‘how’, [citing Lord Denning in Stevenson, Jordon & Harrison Ltd. v. Macdonald, [1952] 1 T.L.R. 101 at 111]
Applying such an organizational test to the present case, it is noted that Haines J. in his reasons for judgment said:
Exhibit 8 is a selection of correspondence collected recently by the plaintiff. While it is written after the accident it indicates that in dealing with policyholders, the company referred to the plaintiff from time to time as “our Meaford area representative, Bert Kearney” and “your C.I.A. representative”, or “your C.I.A. field underwriter Bert Kearney”. No significance can be attached to the fact that these letters were written concerning claims several years after the accident. Prior to the accident the plaintiff did not have a stenographer and the company files which would contain similar correspondence have been closed long since. The plaintiff says that he has always been held out by the company in this manner and I accept his evidence.
In short, the respondent was part of the appellant’s organization; his work was subject to co-ordination control as to “where” and “when” and in the case of the present action, as to “how”.
For these reasons, I do not believe that the finding of fact made by the learned trial judge and affirmed in the Court of Appeal, that at the time of the accident the plaintiff-respondent was, for the limited purpose and on the limited occasion, the servant of the appellant insurance company, should be disturbed. The fact that the respondent was a servant of the appellant, in my view, on the particular occasion while in other circumstances he may well have been an independent contractor is not fatal to his claim. Fleming, op. cit. says at p. 328:
The employment of a servant may be limited to a particular occasion or extend over a long period; it may even be gratuitous.
See Smith v. Moss et al.[4] to which further reference will be made hereafter.
The respondent certainly was injured by the negligence of his fellow servant Livesey, both being in the course of their employment at the time. Section 50 of The Highway Traffic Act, R.S.O. 1950, c. 167, provided:
50.—(1) The owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner or his chauffeur, and the driver of a motor vehicle not being the owner is liable to the same extent as the owner.
(2) Notwithstanding subsection 1, the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in, or upon, or entering, or getting on to, or alighting from the motor vehicle.
It was argued at trial, in the Court of Appeal, and in this Court, that s. 50(2) barred the right of the plaintiff-respondent to recover. Certainly, the vehicle was not “operated in the business of carrying passengers for compensation”. Then under the words of the section, it would appear that neither the owner nor the driver of the motor vehicle was liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in or upon or getting on to or alighting from the motor vehicle. However, in Harrison v. Toronto Motor Car Ltd. and Krug, supra, the Court of Appeal for Ontario considered a claim by a servant, Harrison, for damages caused to her when injured in the course of her employment riding with her employer Krug in an automobile driven by his employee McKenzie, due to the negligence of the said McKenzie. The same statutory provision, then s. 47(2), R.S.O. 1937, c. 288, was urged in defence. Gillanders J.A., giving the judgment of the Court, said at p. 10:
The contention that, in any event, the subsection is only intended to relieve the owner qua owner, from the statutory liability imposed by subs. 1, is a much more substantial contention.
And at p. 13, after examining the defence carefully, said:
The provisions now being considered, being directed to the liability of the owner and driver, should be restricted to their liability qua owner and qua driver, and I think may not bar a right of action due to some other relationship. If the appellant has a cause of action against her master “by reason of the negligence of his servant, subs. 2 does not take it away, even though at the time it arose she was being carried in her employer’s motor vehicle.
The decision awarding Miss Harrison damages against her employer has been followed in the Courts of Ontario since that date. In the meantime, the section was re-enacted in 1950 as s. 50 and in 1960 as s. 105. It is true that The Interpretation Act, R.S.O. 1950, c. 184, s. 19, provided:
The Legislature shall not, by re-enacting an Act, or by revising, consolidating or amending the same, be deemed to have adopted the construction which has by judicial decision or otherwise, been placed upon the language used in such Act or upon similar language.
But in Studer et al. v. Cowper et al.[5], where a like provision of the Saskatchewan Intepretation Act was considered, it was held that it merely removed the presumption that existed at common law and that in a proper case it will be held that the” legislature did have in mind the construction that had been placed upon a certain enactment when re-enacting it. It cannot be doubted that the effect of the decision in Harrison v. Toronto Motor Car Ltd. and Krug was known to every lawyer and to every judge in the Province of Ontario from the date of its decision on and it is difficult to understand how the frequent statutory amendments to The Highway Traffic Act between 1945 and the present date and the re-enactment of the very section in identical words in both the Revisions of 1950 and 1960 would have occurred if the decision in Harrison v. Toronto Motor Car Ltd. and Krug, supra, has not represented the intention of the legislature. The case has been cited and either adopted or distinguished in many judgments at trial and in the Court of Appeal. I am, therefore, of the opinion that this Court is entitled to consider the fact that the decision has remained unchallenged for 19 years and that the legislative provision upon which it depends has been twice re-enacted in considering whether the decision is incorrect.
Counsel for the appellant argued that the decision is contrary to that of the Court of Appeal itself in Hughes v. J.H. Watkins & Co.[6] and the decision of this Court in Dufferin Paving and Crushed Stone Ltd. v. Anger et al.[7] Gillanders J.A. considered that exact argument. Both of those decisions were decisions holding that the limitation section in The Highway Traffic Act applied generally and would bar an action in the case of Hughes v. J.H. Watkins & Co. by a pedestrian brought after the limitation period, and in the case of Dufferin Paving and Crushed Stone Ltd. v. Anger by a land owner whose property had been damaged by the vibration caused by the driving of trucks. Both of those decisions turned on the words of the limitation section, and are not decisions which require a general and all-inclusive effect to be given to the provisions of s. 50(2) of The Highway Traffic Act as it existed in 1957 and it still exists. I agree with the view of Gillanders J.A. in Harrison v. Toronto Motor Car Ltd. and Krug, supra, where he said at p. 13:
I incline to the view that the essential difference between the limitation sections considered in the Watkins and Dufferin Paving cases and the section with which we are here concerned is that the limitation sections in the cases mentioned were of general application, affecting all actions “for the recovery of damages occasioned by a motor vehicle”, while the subsection now under consideration only affects the liability of the owner or driver to a certain type of action. (The italicizing is my own.)
In my view, the history of the enactment of what is now s. 105 of The Highway Traffic Act and which was at the time of the accident in question in this action, s. 50(2) is significant. There was not, of course, at common law, any liability upon the owner of a motor vehicle for damages caused by the negligent driving of that vehicle when the driving was not that of the owner or of his servant. That liability was imposed in the Province of Ontario in the year 1930, by the Statutes of Ontario 1930, c. 48, which added s. 41(a) substantially in the same terms as s. 50(1) of the statute as it existed in the 1950 Revised Statutes of Ontario. In 1935 by the Statutes of that year, c. 26, s. 11, a second subsection was added to the then s. 41 which is in substantially the same terms as s. 50(2) of the Revised Statutes of Ontario 1950. During the intervening five years, Falsetto v. Brown et al.[8] came before the Courts. There, an accident had occurred on August 17, 1932, in a collision between a vehicle owned by one Brown and being driven by McMaster with the consent of the owner. In the vehicle were two passengers, Miss Falsetto and Hernden, both gratuitous passengers. Miss Falsetto, by her next friend, commenced an action against Brown and McMaster, the owner and driver of the automobile in which she had been a gratuitous passenger and against the owner of the truck with which that vehicle had come in collision, and at trial she was awarded judgment against all defendants. The owner of the truck alone appealed, and the majority judgment in the Court of Appeal held that the negligence of the driver of the automobile had been the sole cause of the collision so the appeal of the owner of the truck was allowed. The liability of the owner of the automobile to the gratuitous passenger founded upon s. 41(a) of the 1930 Statutes of Ontario, c. 48, and which had not been the subject of appeal was the situation which the amendment of 1935 was intended to cure. Gillanders J.A. in Harrison v. Toronto Motor Car Ltd. and Krug, supra, was of the opinion that it was the only situation which the amendment was intended to cure. I have come to the conclusion that he was correct when he said, at p. 13:
If the appellant has a cause of action against her master by reason of the negligence of his servant, subs. 2 does not take it away, even though at the time it arose she was being carried in her employer’s motor vehicle.
The question arises then, did Kearney in this case have a right of action against his employer by reason of the negligence of the employer’s servant Livesey? It is my intention to consider the matter, firstly, apart from the doctrine of common employment and the provisions of The Workmen’s Compensation Act. Clerk and Lindsell on Torts, 12th ed., at p. 783, said:
At common law a master owes a duty to his servant to take reasonable care for his servant’s safety… This duty was described by Lord Herschell as “the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and …so to carry on his operations as not to subject those employed by him to unnecessary risk.” The classic statement of the duty is to be found in the speeches of Lord Wright and Lord Maugham in Wilsons & Clyde Coal Co., Ltd. v. English, [1938] A.C. 57 at 78 and 86.
At p. 86 of that case, Lord Maugham said:
The first proposition is that, subject as next mentioned, the employer is responsible to an employee for an accident caused by the negligence of any other employee acting within the scope of his authority. The maxim respondeat superior applies: Smith v. Baker, [1891] A.C. 325.
Schroeder J.A. in giving judgment in the Court of Appeal in Jurasits v. Nemes[9], at p. 174 said:
At common law a master did not warrant the safety of the servant’s employment. He bound himself to do no more than to take reasonable care to protect the servant against accidents.
Lord Abinger C.B., in Priestly v. Fowler[10], at p. 1032 said:
He [the employer] is, no doubt, bound to provide for the safety of his servant in the course of his employment to the best of his judgment, information, and belief.
I am, therefore, of the opinion that there is a duty by implied term of contract to the servant Harrison in the case of Harrison v. Toronto Motor Car Ltd. and Krug and to the plaintiff-respondent in this case, to take reasonable care to provide for the safety of that servant when he is engaged in the course of his employment and that there was by the negligence of the defendant Livesey in this case, a breach of that duty and a breach for which the appellant insurance company as the employer of Livesey is responsible in law.
The question then arises whether the appellant is protected by the doctrine of common employment. That doctrine was first enunciated by Lord Abinger C.B. in Priestly v. Fowler, supra.
The defence was carefully defined and limited in Radcliffe v. Ribble Motor Services Ltd.[11], where Lord Wright said at p. 247:
But the limitations which I have explained and which for purposes of this opinion I wish to emphasize are based on the fundamental principle that there must be an actual contract between the employer and employee so that it may be possible from the nature and circumstances of that contract to imply, though by a fiction of law, that the employee undertook the particular risks of the negligence of his fellow employees.
And at p. 249:
But it is clear on the authorities in this House that there is always the limit, however expressed, that it must be the same work in which the workmen are employed. They must be employed in common work, that is, work which necessarily and naturally or in the usual course involves juxtaposition, local or causal, of the fellow employees and exposure to the risk of the negligence of one affecting the other.
Gillanders J.A. in Harrison v. Toronto Motor Car Ltd. and Krug, supra, cited this and other authorities and was able to come to the conclusion that the plaintiff Harrison and the chauffeur McKenzie were not engaged in “common work” involving “juxtaposition, local or causal”, and exposure of the risk of negligence of one affecting the other and that therefore the defence of common employment did not apply.
The learned justice in appeal proceeded, however, at p. 16 to say:
If I am right in concluding that common employment is not applicable under the circumstances, it is not necessary to consider whether or not the appellant comes under Part II of The Workmen’s Compensation Act, in which case in any event, by virtue of s. 122 of that Act, common employment would have no application. It is, however, probably desirable to express my view on this point.
And then having considered the matter, at p. 17, said:
Under the circumstances here, the appellant, I think, falls within the provisions of Part II of the Act. In the present case, this Court is faced with the problem of whether the defence of common employment has been barred by the provisions of the said Workmen’s Compensation Act. Haines J. said in his reasons for judgment (at trial):
As for the defence of common employment I find that it is not available to the defendants by reason of the provisions of Part II of the Workmen’s Compensation Act, R.S.O. 1960, ch. 437, sec. 125.
In the Court of Appeal, Aylesworth J.A. said:
Here, but not in those decisions, the plaintiff was not a free agent as to his movements after completion of the work of adjustment upon which he and Livesey were engaged; he had been transported to the place where the work of adjustment occurred in the car of the defendant Livesey and for the very purpose of engaging in that endeavour; he was entitled as part of their joint work as employees of the other defendant, to be returned in the same vehicle to the place whence he came; his employment in that endeavour continued, in our view until that had been done.
I am of the opinion that in this particular case the two employees, the plaintiff Kearney and the defendant Livesey, were jointly engaged in the very same work. Of necessity they were in such juxtaposition as might involve one in the consequence of the negligence of the other. In short, the situation was the exact one in which the defence of common employment as outlined by Lord Wright in Radcliffe v. Ribble Motor Services Ltd., supra, would apply. That defence, of course, is no longer available in the United Kingdom because of the provisions of the various employers’ liability acts. The defence is, however, available in Ontario unless it is barred by the provisions of The Workmen’s Compensation Act. That statute now appears as R.S.O. 1960, c. 437, and the sections are word for word those in effect at the date of the accident. Firstly, it should be noted that s. 1 provides:
(j) “industry” includes establishment, undertaking, trade and business; and
(u) “workman” includes a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes a learner and a member of a municipal volunteer fire brigade, but when used in Part I does not include an outworker or an executive officer of a corporation.
And ss. 123 to 125 provide:
123. Subject to section 126, sections 124 and 125 apply only to the industries to which Part I does not apply and to the workmen employed in such industries, but outworkers and persons whose employment is of casual nature and who are employed otherwise than for the purposes of the employer’s trade or business, who are employed in industries under Part I but who are excluded from the benefit of Part I, are not by this section excluded from the benefit of sections 124 and 125.
124.—(1) Where personal injury is caused to a workman by reason of any defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with, intended for or used in the business of his employer or by reason of the negligence of his employer or of any person in the service of his employer acting within the scope of his employment, the workman or, if the injury results in death, the legal personal representatives of the workman and any person entitled in case of death have an action against the employer, and, if the action is brought by the workman, he is entitled to recover from the employer the damages sustained by the workman by or in consequence of the injury, and, if the action is brought by the legal personal representatives of the workman or by or on behalf of persons entitled to damages under The Fatal Accidents Act, they are entitled to recover such damages as they are entitled to under that Act.
(2) Where the execution of any work is being carried into effect under any contract, and the person for whom the Work is done owns or supplies any ways, works, machinery, plant, buildings or premises, and by reason of any defect in the condition or arrangement of them personal injury is caused to a workman employed by the contractor or by any subcontractor, and the defect arose from the negligence of the person for whom the work or any part of it is done or of some person in his service and acting within the scope of his employment, the person for whom the work or that part of the work is done is liable to the action as if the workman had been employed by him, and for that purpose shall be deemed to be the employer of the workman within the meaning of this Act, but any such contractor or subcontractor is liable to the action as if this subsection had not been enacted but not so that double damages are recoverable for the same injury.
(3) Nothing in subsection 2 affects any right or liability of the person for whom the work is done and the contractor or subcontractor as between themselves.
(4) A workman shall not, by reason only of his continuing in the employment of the employer with knowledge of the defect or negligence that caused his injury, be deemed to have voluntarily incurred the risk of the injury.
125.—(1) A workman shall be deemed not to have undertaken the risks due to the negligence of his fellow workmen and contributory negligence on the part of a workman is not a bar to recovery by him or by any person entitled to damages under The Fatal Accidents Act in an action for the recovery of damages for an injury sustained by or causing the death of the workman while in the service of his employer for which the employer would otherwise have been liable.
(2) Contributory negligence on the part of the workman shall nevertheless be taken into account in assessing the damages in any such action.
It will be seen that the determination of whether the respondent is entitled to plead the provisions of s. 125 as barring the defence of common employment depends on whether the respondent is a “workman”. Section 125 applies only to an industry to which Part I does not apply. Then, was the business of the appellant Co-operators Insurance Association an “industry”? In Lewis v. Nisbet & Auld Ltd.[12], at p. 345, Crocket J., giving judgment for a majority of this Court and in dealing with some of the words in the present s. 124 “by reason of any defect in the condition or arrangement of the ways, works, machinery, plant buildings or premises…”, said:
It will be seen at once that the enactment is a special one which was clearly passed to extend the liability of the employer in favour of the workman. It is an enactment, therefore, which ought not to be narrowly construed against the workman. No court has any right to add to it any condition which its language does not clearly express or necessarily imply. Rather is it the duty of a court, as said by Brett, M.R., in Gibbs v. Great Western Ry. Co. (1884) 12 Q.B.D. 208, at p. 211, in construing a section of the Imperial Employers’ Liability Act (1880) to construe it “as largely as reason enables one to construe it in their (the workmen’s) favour and for the furtherance of the object of the Act.”
I accept that as a proper canon of interpretation in order to construe the meaning of the words “workman” and “industry”, and I am of the opinion that that course has been followed by the Courts of Ontario in construing this statute. In Jarvis v. Oshawa Hospital[13], Raney J. held that a hospital was an “industry” within the words “establishment, undertaking, trade and business” and that a pupil dietitian employed at the hospital at a salary of $8 a week was a “workman”.
In Humphreys v. The City of London[14], Middleton J.A. in the Court of Appeal considering the question of whether a relief recipient required by the municipality as a term of obtaining relief to perform duties as directed by the municipal officers was a “workman” said at p. 301:
The Workmen’s Compensation Act is intended to apply to all workmen and all employees, save in a case of farming or domestic or menial servants. These