Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell

Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott-Russell
Collection
Supreme Court Judgments
Date
1999-09-17
Report
[1999] 3 SCR 281
Case number
25898
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Action
Notes
SCC Case Information: 25898
Decision Content
Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell, [1999] 3 S.C.R. 281
Florent Des Champs Appellant
v.
Conseil des écoles séparées catholiques de
langue française de Prescott-Russell, Suzanne
Charette, Roch Lalonde, Ronald Lalonde, R.
Serge Lalonde, Hélène Leblanc, Pierre Leblanc,
Jean Lemay, Paul Paradis, Marcel Perras,
Gilles Taillon, François Théoret and Jean-Paul Scott Respondents
Indexed as: Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell
File No.: 25898.
1998: November 10; 1999: September 17.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ.
on appeal from the court of appeal for ontario
Limitation of actions -- Public Authorities -- School Board -- School Board declaring superintendent’s position redundant and transferring him to non-supervisory position -- Superintendent commencing action eight months after events giving rise to cause of action -- Whether six-month limitation period in s. 7 of Public Authorities Protection Act applicable to bar action -- Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7.
The respondent School Board declared two of three superintendent positions redundant under s. 7 of Regulation 309 of the Education Act and the appellant, a superintendent, was transferred to a position as a principal of a school. He ceased to be a full-time administrator and was required to go back to the classroom to teach. Almost eight months after the events giving rise to the cause of action, he commenced an action claiming entitlements under s. 7(2) of Regulation 309. The Board brought a motion to have the action dismissed based on a six-month limitation period under s. 7 of the Public Authorities Protection Act. The motions judge dismissed the motion but the Court of Appeal set aside his decision, concluding that the action was barred by the six-month limitation period.
Held (Major J. dissenting): The appeal should be allowed.
Per L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ.: Section 7 of the Public Authorities Protection Act does not protect public authorities as a matter of status and not all actions by a public authority fall within the protection of s. 7. For s. 7 to apply, the right being asserted by a plaintiff must be correlative to a public duty or power imposed on the public authority. Public authorities may have duties and powers that are of a private or subordinate nature. In determining whether to apply s. 7, a court will have to consider the action at issue and its relationship with the nature of the statutory power or duty of the public authority. A statute may authorize a wide range of activities of which only some could be considered public for purposes of applying s. 7. An action in fulfilment of a statutory mandate that lacks a public aspect or that is a subordinate or incidental action or of a private interest is not protected by s. 7 of the Act.
A court considering applying s. 7 of the Act or a similarly worded limitations statute may wish to determine: whether the defendant is a public authority within the class of entities or individuals for whom limitations protection was intended; what the public authority was doing and pursuant to what duty or authority; whether the public authority’s power or duty is properly classified as entailing a public aspect or connotation or a private executive, private administrative or subordinate aspect; whether the activity of the public authority that is the subject matter of the complaint is inherently of a public nature or more of an internal or operational nature having a predominantly private aspect; and, from the plaintiff’s perspective, whether the plaintiff’s claim or alleged right correlates to the exercise by the defendant of a public authority or to the breach of a public duty or complains about an activity of a public character. If the answer to the latter question is in the affirmative, the limitation period applies.
In this case, the Board’s reorganization was a public initiative. Delivery of an educational program is a responsibility owed by the Board to all members of the public alike. The appellant’s alleged injury, however, was created by the Board’s implementation of the reorganization and raises only labour relations issues against the Board as the appellant’s employer. The Board’s action, upon which the appellant’s claim is based, was distinct, separate, subordinate and incidental to the Board’s execution of its public duty and powers. The Board should not be permitted to aggregate a number of discrete actions under a generalized appeal to the public interest in order to widen the application of s. 7 of the Act. The Board’s action was not the inevitable consequence of the downsizing. The six-month limitation period does not apply. The motions judge’s order, that s. 7 of the Act is inapplicable, is reinstated, permitting the action to proceed against the Board.
Per Major J. (dissenting): The Board’s action in this case was in direct execution of its public authority and is subject to s. 7 of the Public Authorities Protection Act. The appellant’s claim falls within the six-month limitation period and should not be allowed to proceed.
The Act must be applied to any action intended by the legislature to fall within the categories enumerated in the statute. The scope of s. 7 has been narrowed to actions performed in direct execution of a public authority’s public purpose. Determining whether an action is directly related to or is incidental to a public authority’s powers and duties requires careful line-drawing. The decision to declare the appellant’s position redundant and to transfer him was an action taken in direct execution of the Board’s public purpose. The action of downsizing can have both a public and a private aspect but the private aspect does not remove it from the protection of s. 7 of the Act. There is no basis to carve out an exception for lawsuits based on the private aspects of actions done in direct execution of public duties.
The focus is on the action about which the appellant complains. There is no meaningful distinction between the action of downsizing and “downsizing” the appellant’s position in particular. Such a distinction would allow any public action to be deconstructed into sub-actions, some of which could be described as in‑house implementations or minor functions. The fact that the Board chose the appellant instead of a colleague does not strip the action of its public nature. A public authority’s ability to rely on s. 7 of the Act does not depend on the identity of the plaintiff.
Cases Cited
By Binnie J.
Applied: Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275, rev’g 75 D.L.R. (3d) 348, aff’g 71 D.L.R. (3d) 56; Bradford Corp. v. Myers, [1916] 1 A.C. 242; followed: Cloudfoam Ltd. v. Toronto Harbour Commission, [1968] 2 O.R. 497, aff’d [1969] 2 O.R. 194; Sharpington v. Fulham Guardians, [1904] 2 Ch. 449; not followed: Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 56 O.R. (2d) 160; Lacarte v. Board of Education of Toronto, [1954] O.R. 435; Riddle v. University of Victoria (1979), 95 D.L.R. (3d) 193; Moffatt v. Dufferin County Board of Education, [1973] 1 O.R. 351; Stewart v. Lincoln County Board of Education (1972), 8 O.R. (2d) 168; Goodwin v. Oxford County Board of Education (1980), 30 O.R. (2d) 359; Wright v. Board of Education for the City of Hamilton (1977), 16 O.R. (2d) 828; Cossette v. Ombudsman (1980), 28 O.R. (2d) 92; explained: Griffiths v. Smith, [1941] A.C. 170; referred to: Tolson v. Kaye (1822), 3 Brod. & B. 217, 129 E.R. 1267; Deaville v. Boegeman (1984), 14 D.L.R. (4th) 81; Re Colledge and Niagara Regional Police Commission (1983), 44 O.R. (2d) 289; Clarke v. Ottawa Board of Education (1975), 54 D.L.R. (3d) 321; Re Beauchamp and Town of Espanola (1981), 122 D.L.R. (3d) 149, aff’d (1981), 128 D.L.R. (3d) 766; Collier v. Lake Superior Board of Education (1986), 14 C.C.E.L. 183; Molloy v. Ontario (Human Rights Commission) (1992), 41 C.C.E.L. 101; McGonegal v. Gray, [1952] 2 S.C.R. 274; Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452; Government of Malaysia v. Lee Hock Ning, [1974] A.C. 76; Comstock International Ltd. v. The Queen in right of Ontario (1981), 126 D.L.R. (3d) 323; Clarke v. St. Helens Borough Council (1915), 85 L.J. (K.B.) 17; Hanna v. Ontario Hydro (1982), 37 O.R. (2d) 783; Schnurr v. Royal Ottawa Hospital (1986), 56 O.R. (2d) 589; Compton v. Council of the County Borough of West Ham, [1939] Ch. 771; McManus v. Bowes, [1938] 1 K.B. 98.
By Major J. (dissenting)
Bradford Corp. v. Myers, [1916] 1 A.C. 242; Griffiths v. Smith, [1941] A.C. 170; Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275; Sharpington v. Fulham Guardians, [1904] 2 Ch. 449; McGonegal v. Gray, [1952] 2 S.C.R. 274; Moffatt v. Dufferin County Board of Education, [1973] 1 O.R. 351; Comstock International Ltd. v. The Queen in right of Ontario (1981), 126 D.L.R. (3d) 323; Clarke v. Ottawa Board of Education (1975), 54 D.L.R. (3d) 321; Lacarte v. Board of Education of Toronto, [1954] O.R. 435; Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452; Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 56 O.R. (2d) 160.
Statutes and Regulations Cited
Education Act, R.S.O. 1990, c. E.2.
Financial Administration Act, R.S.C., 1985, c. F-11 .
Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7.
Public Authorities Protection Act, 1893 (U.K.), 56 & 57 Vict., c. 61.
R.R.O. 1990, Reg. 309, s. 7.
Authors Cited
Ontario Law Reform Commission. Report of the Ontario Law Reform Commission on Limitation of Actions. Toronto: Department of the Attorney General, 1969.
APPEAL from a judgment of the Court of Appeal for Ontario, [1997] O.J. No. 125 (QL), allowing an appeal from a decision of the Ontario Court (General Division) (1993), 16 O.R. (3d) 278, which dismissed a motion to dismiss the action. Appeal allowed, Major J. dissenting.
Denis J. Power, Q.C., and Steven Welchner, for the appellant.
Paul S. Rouleau and Bruce Hutchison, for the respondents.
The judgment of L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci and Binnie JJ. was delivered by
1 Binnie J. – Many if not most public authorities in this country are shielded from litigants to some extent by special statutory limitation periods. The public policy underlying these limitations is that public authorities ought not to be unduly prejudiced by the passage of time. Timely notice will promote the timely investigation and disposition of claims in the public interest. After the expiry of a limitation period, the public authority can consider itself free of the threat of legal action, and need not preserve or seek out pertinent evidence. Its fiscal planning can proceed free of the disrupting effect of unresolved claims against the public purse. Historically, limitation statutes were referred to as “statutes of repose” or “statutes of peace” (Tolson v. Kaye (1822), 3 Brod. & B. 217, 129 E.R. 1267, at p. 1269, and Deaville v. Boegeman (1984), 14 D.L.R. (4th) 81 (Ont. C.A.), at p. 86). The six-month limitation under s. 7 of the Public Authorities Protection Act, R.S.O. 1990, c. P.38 (the “Act”), recognizes the special nature and responsibilities of public authorities. However, here the appellant says that applying the limitation to bar his wrongful dismissal claim overshoots the purpose of the statute. He says the fact he works for a public sector employer should not truncate the limitation period from six years to six months. This type of claim, he says, does not engage the “public” aspect of the respondent Board’s powers and duties. I think his objection is well founded. The s. 7 defence was rightly rejected by the motions judge in this case and his ruling in that regard should be restored. The appeal should therefore be allowed.
I. Nature of the Claim
2 This appeal concerns an employment dispute between the appellant, Florent Des Champs, and the Roman Catholic Separate School Board of Prescott-Russell. The appellant started work for the Board as a teacher in 1971. Over the years, he progressed through the ranks until, in July 1989, he was appointed one of several superintendents of the French Language Roman Catholic Separate School Board. Three years later, as a result of a reorganization of educational services, the Board’s responsibilities were significantly reduced. This led to two of the Board’s three superintendent positions being declared redundant. The appellant was one of the superintendents selected to fill a redundancy and he claims he was downgraded to a lesser position contrary to his contractual entitlement which, he says, incorporates the provisions of R.R.O. 1990, Reg. 309, made under the Education Act, R.S.O. 1990, c. E.2. The School Board sought to have his action dismissed on the strength of s. 7 of the Act. It lost before the motions judge but succeeded before the Ontario Court of Appeal.
II. History of the Dispute
3 In 1992, under a rationalization of French language educational services, the respondent Board was relieved of certain responsibilities in relation to English language separate schools in its area. It concluded that the remaining work could be done by one of its existing three superintendents. The Board responded to this “downsizing” of its role by purporting to exercise its statutory powers under s. 7 of Regulation 309. Regulation 309 authorizes the Board to declare redundancies in the implementation “of a long range organizational plan of operation”. It is common ground that no such plan existed in Prescott-Russell at the relevant time. The validity of the Board’s procedure is an issue in the law suit. The Board’s concern for cost control, however, was certainly in the public interest.
4 The relevant reorganization was described in the Board’s resolution of April 27, 1992, as follows:
[translation]
Resolution No. 104
WHEREAS the French Language Roman Catholic Separate School Board of Prescott-Russell was required to take on three superintendents from the Prescott-Russell Board of Education on January 1, 1989 following the reorganization;
WHEREAS the superintendents of the French Language Roman Catholic Separate School Board of Prescott-Russell were required to supervise French and English language schools following the reorganization, and supervisory services for the English language Roman Catholic Section were subsequently contracted from the Carleton Roman Catholic School Board;
WHEREAS two separate school boards, a French language and an English language board, were created on December 1, 1991;
WHEREAS shortly the French Language Roman Catholic Separate School Board of Prescott-Russell will no longer have to provide services to the Prescott and Russell County Roman Catholic English Language Separate School Board; and
WHEREAS the French Language Roman Catholic Separate School Board of Prescott-Russell intends to use its available financial resources as judiciously as possible.
The Board thus resolved:
[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the educational authority of the French language Roman Catholic separate schools of Prescott-Russell declare two superintendent positions redundant.
Adopted.
5 By subsequent resolution, the Board selected the appellant and a colleague for transfer to other duties:
[translation] That following the approval of the Minister of Education and pursuant to the provisions of Regulation 276, the French Language Roman Catholic Separate School Board of Prescott-Russell transfer superintendents Rhéal M. Bazinet and Florent Y. Des Champs to positions for which they are qualified with administrative and supervisory responsibilities as similar as possible to those of their previous positions.
6 On May 29, 1992, the appellant was assigned to be principal of École St-Luc in Curran, Ontario for the following school year. He reported to École St-Luc under protest, on August 24, 1992. He ceased to be a full-time administrator. He was required to go back to the classroom to teach. He considered that he had been unfairly dealt with.
7 The appellant commenced the present action against the Board, its trustees, and the Director of Education on December 22, 1992, almost eight months after the events giving rise to his cause of action.
8 The various defendants, including the Board, brought a motion to dismiss the action on the basis that, not having been commenced within six months of the date the cause of action arose, it was statute‑barred by virtue of s. 7(1) of the Act. As stated, this position was rejected by the motions judge but was accepted by the Ontario Court of Appeal. It took almost seven years for the “preliminary motion” to reach this Court.
III. Judgments
Ontario Court (General Division) (1993), 16 O.R. (3d) 278
9 On November 25, 1993, Desmarais J. held the special six-month limitation period did not apply. Applying the decision of this Court in Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275, he asked himself whether the conduct complained of was “in broad terms . . . public in nature or private in nature”, and concluded that the conduct complained of did not entail a public aspect but “more of an internal or operational nature having a predominantly private aspect” (p. 282). He therefore rejected the limitations defence. He also struck out the action against the individually named defendants, allowing the matter to proceed against the School Board only.
Ontario Court of Appeal, [1997] O.J. No. 125 (QL)
10 The appeal was allowed by the Ontario Court of Appeal on January 20, 1997. In a short endorsement, the court classified the case as one where the Board had declared the position of superintendent redundant and, pursuant to its statutory powers, transferred the appellant to the position of school principal. Relying on its own prior decision in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985), 56 O.R. (2d) 160, the court gave effect to the limitations defence and dismissed the action. In its view, the “acts complained of are not subordinate acts to the public duty” (para. 2) but were directly within the sphere of public action protected by the statute.
IV. Relevant Statutory Provisions
11 Public Authorities Protection Act, R.S.O. 1990, c. P.38
7. – (1) No action, prosecution or other proceeding lies or shall be instituted against any person for an act done in pursuance or execution or intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution of any such duty or authority, unless it is commenced within six months next after the cause of action arose, or, in case of continuance of injury or damage, within six months after the ceasing thereof.
R.R.O. 1990, Reg. 309
7. -- (1) In this section, “redundant” in respect of the position of a supervisory officer means no longer required to be filled by reason of,
(a) the implementation by a board of a long range organizational plan of operation in respect of schools or of supervisory services that eliminates the position or merges it with another position;
. . .
(2) Where a board declares the position of a supervisory officer redundant, the board shall,
(a) give the supervisory officer at least three months’ notice in writing that the position has been declared redundant;
(b) transfer the supervisory officer to a position for which he or she is qualified, with supervisory and administrative responsibilities as similar as possible to those of his or her previous position; and
(c) pay the supervisory officer for at least one year following the date of the transfer with no reduction in his or her rate of salary.
V. Analysis
12 A few general observations should be stated at the outset. The wording of s. 7 of the Act indicates that the legislature did not intend to throw the protective net of s. 7 around public authorities in Ontario as a matter of status. The reference to the “intended execution of any statutory or other public duty or authority” (emphasis added) limits the protection to public duties and powers and confirms inferentially that a public authority may well have other duties and powers that are essentially of a private nature. In drawing the line between the public aspects and private aspects, the general principle is that the wording of s. 7 is to be read narrowly and against the party seeking its special protection. This produces an inevitable line drawing exercise that requires the court to examine the nature of the statutory power or duty imposed on the defendant public authority as well as the character of the particular conduct about which the plaintiff complains. The School Board, to take this case, is required to provide educational services to the public. In order to carry out its program, it has to build schools and hire teachers. If the Board were sued by an injured child for operating an unsafe school, or by parents for wrongly refusing to admit their child to classes, the claims would properly engage the public duties of the school, and be covered by the special limitation. On the other hand, a claim by a disgruntled builder under a school construction contract, or an unpaid caterer who had provided food services, would stand on a different footing. Although the subject matter of their claim clearly relates to the execution by the school of its public mandate, it is incidental thereto. The builder or caterer would be asserting private rights under private contracts. Their claims would not be within the intended scope of the disability imposed by the special limitation period.
13 For purposes of this analysis, it does not matter whether the claim arises in contract or in tort. The analysis is directed to whether the claim, whatever it is, “correlates” to a public power or duty exercised or owed by the authority.
14 These observations follow from a consideration of the decided cases, not all of which are readily reconcilable. Arnup J.A. has traced the roots of the Ontario legislation back to a 1609 English statute entitled An Acte for ease in pleading against troublesome and contencious Suites prosecuted against Justices of the Peace, Maiors, Constables and certain other his Majestie’s Officers, for the lawfull execucion of their Office, 7 Jas. 1, c. 5 (see Re Colledge and Niagara Regional Police Commission (1983), 44 O.R. (2d) 289 (C.A.), at pp. 294 et seq., and the historical appendix starting at p. 312). As Aylesworth J.A. noted in Lacarte v. Board of Education of Toronto, [1954] O.R. 435 (C.A.), at p. 451: “Many eminent judges have given eloquent expression to the difficulty of determining precisely what acts or classes of act are excluded by the statute.”
15 At least three different views emerge from the case law about the proper scope of s. 7 of the Act:
16 (i) The first, and most expansive, view is that the limitation applies whenever the cause of action relates to the exercise or failure to exercise a statutory or prerogative power. As most public authorities are creatures of statute, this view includes within the limitation almost everything done by the public authority. The acts of a public authority, on this view, must of necessity be for a public purpose and in furtherance of a public policy (see, e.g., Henry J. in Berardinelli v. Ontario Housing Corp. (1976), 71 D.L.R. (3d) 56 (Ont. H.C.), at p. 59). Some support for variants of this view is found in the decision of the Ontario Court of Appeal, in Lacarte, supra, and in the majority decision of the British Columbia Court of Appeal in Riddle v. University of Victoria (1979), 95 D.L.R. (3d) 193, and in their progeny.
17 (ii) A second more restrictive view is that the limitation applies only where the act complained of relates to duties owed to that “public” which the general operations of the public authority were intended to benefit (or burden), as opposed to acts which are indistinguishable in substance from transactions in the private sector (such as breach of a contract between a government ministry and its supplier). Judicial support for this more limited view is found in Clarke v. Ottawa Board of Education (1975), 54 D.L.R. (3d) 321 (Ont. Co. Ct.); Re Beauchamp and Town of Espanola (1981), 122 D.L.R. (3d) 149 (Ont. Div. Ct.), aff’d (1981), 128 D.L.R. (3d) 766 (Ont. C.A.), per MacKinnon A.C.J.O.; the dissenting judgment of Taggart J.A. in Riddle, supra; as well as trial level judgments in Collier v. Lake Superior Board of Education (1986), 14 C.C.E.L. 183 (Ont. Dist. Ct.); and Molloy v. Ontario (Human Rights Commission) (1992), 41 C.C.E.L. 101 (Ont. Ct. (Gen. Div.)).
18 (iii) A third and even more restrictive view holds that not only is the limitation confined to the “direct performance” of statutory powers and duties owed to the public, but it excludes acts in furtherance of that performance which are of an internal or operational nature, having a predominantly private aspect. This view has been endorsed by this Court over the years, notably in McGonegal v. Gray, [1952] 2 S.C.R. 274, and especially in Berardinelli, supra, where Estey J. said, at p. 280, that s. 7 (formerly s. 11) “. . . attracts a strict interpretation and any ambiguity found upon the application of the proper principles of statutory interpretation should be resolved in favour of the person whose right of action is being truncated”. Estey J. went on to observe: “There is little doubt about the presence of ambiguity and uncertainty of meaning in the section”. On a policy level, Estey J. held at p. 284 that a broader interpretation in that case would have created an objectionable double standard, i.e., “different conditions of owner liability for two apparently similar housing facilities”.
19 One might have expected that in a well-ordered system of justice the third and narrowest view, having on at least two occasions been endorsed by this Court, would have prevailed. What seems to have happened, however, is that in the mid-1950s a series of wrongful dismissal "teacher cases" became detached from the main body of jurisprudence under s. 7 of the Act and related statutes. I do not share Major J.’s view that the “teacher cases” are of no consequence to the case at bar. They established a contrary line of jurisprudence which led directly to the decision in appeal: the court below, relying solely on Gallant, supra, summarily found that the acts complained of were “not subordinate acts to the public duty”. The disposition of the present appeal requires a review of the correctness of these authorities. The fork in the road seems to have been created by the decision of Aylesworth J.A. of the Ontario Court of Appeal in Lacarte, supra, a decision to which I will return shortly.
20 I propose first to take the observations listed at the outset and identify some relevant support in the case law.
1. Classification of Statutory Duties Into Those of a “Public” Character and Those of a Predominantly “Private” Character
21 Not all of the statutory authority exercised and duties performed by a “public authority” fall within the protection of the statute. The cases suggest two related approaches, namely (i) the nature of the statutory power or duty relied upon by the defendant and (ii) the nature of the correlative right being asserted by the plaintiff.
(i) Is the Statutory Power or Duty Relied Upon by the Defendant Public Authority of a Public or Private Nature?
22 The statutory powers and duties of a public authority are classified as either “public” within the meaning of s. 7, or of “a private executive or private administrative application or are subordinate in nature” (per Estey J. in Berardinelli, supra, at p. 283). In part, this classification turns on asking to whom the duty is owed, per Lord Buckmaster L.C. in Bradford Corp. v. Myers, [1916] 1 A.C. 242 (H.L.), at p. 247:
In other words, it is not because the act out of which an action arises is within their power that a public authority enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply. [Emphasis added.]
Public authorities, for example, exercise certain powers and are subject to specified duties of an internal government nature under the Financial Administration Act, R.S.C., 1985, c. F-11 , and their provincial counterparts. These are not duties which in any meaningful sense can be said to be “owed to all the public alike”. On the other hand, there will be other powers and duties which are owed to members of the public, as was the duty to provide safe public housing in Berardinelli itself, which are nevertheless not classified as “public” within the scope of the limitation period, because they are considered “subordinate in nature” to the public authority’s public role. Estey J.’s classification of powers and duties that are of a “private executive or private administrative application or are subordinate in nature” (p. 283 (emphasis added)) must therefore be read disjunctively.
23 An example of the usual sort of case where the limitation clearly applies is Cloudfoam Ltd. v. Toronto Harbour Commission, [1968] 2 O.R. 497 (H.C.), aff’d [1969] 2 O.R. 194 (C.A.). In that case, the defendant port authority stored cargo arriving by ship at its terminal in Toronto harbour in the open air. When the shipments were picked up by the plaintiff owner, they were discovered to be soaked with rain and irretrievably damaged. The plaintiffs alleged that the defendant was negligent in storing the goods without protection from the weather. The defendant claimed the benefit of the Act. The Toronto Harbour Commissioners had been established in 1911 to operate the harbour including the provision of terminalling and cargo services. The cargo terminal was part of its mandate to serve the public and the plaintiff, a cargo owner, was a member of the “public” for whose benefit the facility had been created. The limitations defence rightly applied. For a similar case, see Firestone Tire and Rubber Co. (S.S.) Ld. v. Singapore Harbour Board, [1952] A.C. 452 (P.C.).
24 An examination of the earlier English cases whose “line of distinction” was adopted by Rand J. in McGonegal, supra, at p. 289, provides insight into his ruling. (For all practical purposes, the wording of the applicable English limitation, repealed in 1954, was the same as s. 7 of the Ontario Act.)
25 Myers, supra, involved an action against a municipality whose employees had “shot” a ton of coke through the plaintiff’s shop window. The municipality pointed out that it was required to supply natural gas to its inhabitants, and that a by-product of the manufacture of natural gas was coke. Coke, once brought into existence, had to be disposed of. The preferred method of disposal was to sell it to people who could burn the coke for heat. The municipality thus reasoned that marketing coke was “an act done in pursuance or execution or intended execution of any other statute, or of any public duty or authority” (p. 251), and argued that no liability should attach to such incidental mishaps as precipitating a quantity of coke through the window of a customer’s shop. In an argument similar to the one made by the Board in this appeal, the municipality in Myers argued (at p. 243):
A public authority directed to do a particular act is directed to do everything which is incidental to the doing of that act.
. . .
If a statute directs the performance of a specific duty and leaves the mode of performance to be selected by the public authority, an act done in working out the selected mode is an act is done in the execution of the statutory duty.
26 The Lord Chancellor disagreed, concluding that the “public” duty of the municipality did not extend to disposition of a by-product in its production of natural gas. The negligent delivery of coke to the shopkeeper was too remote from the execution of the public mandate for which Parliament had intended protection. The initiative was held to be intra vires, but was held not to be in the “direct” discharge of a duty owed to “all the public alike”. It makes no difference, the Lord Chancellor said (at p. 246), whether the claim is formulated in contract or in tort. In context, I think “all the public alike” means the class of people for whose benefit or burden the public authority was conferred. It need not be everybody in the jurisdiction. A statute that laid special duties on the public authority in respect of the cargo owners in Cloudfoam, for example, was not on that account excluded from the protection of the statute.
(ii) Is the Right Being Asserted by the Plaintiff “Correlative” to a Public Duty Imposed on the Public Authority?
27 The usefulness of considering the precise nature of the plaintiff’s claim in assessing the public or private character of the defendant’s duty was signalled in an earlier English decision on which Myers relied, namely Sharpington v. Fulham Guardians, [1904] 2 Ch. 449. In that case, the defendants were a public authority constituted as guardians of the poor and they had undertaken to convert an old mansion into a receiving house for poor children. The provision of such a receiving house was within the statutory powers and duties of the defendants. The plaintiff, a builder, sued for contract extras. As stated above, the statute under which the defence of limitation was raised contained a provision almost identical to s. 7 of the Act. Clearly, the building renovations were intra vires the public authority and referable to its “public” mandate. However, the defence was rejected by Farwell J. at p. 456:
The public duty which is here cast upon the guardians is to supply a receiving house for poor children; a breach or negligent performance of that duty would be an injury to the children, or possibly to the public, who might be injured by finding the children on the highway. In order to carry out this duty they have power to build a house or alter a house, and they accordingly entered into a private contract. It is a breach of this private contract that is complained of in this action. It is not a complaint by a number of children or by a member of the public in respect of the public duty. It is a complaint by a private individual in respect of a private injury done to him. The only way in which the public duty comes in at all is, as I have pointed out, that if it were not for the public duty any such contract would be ultra vires. But that would apply to every contract. [Emphasis added.]
This case was quoted with approval by Lord Atkinson in Myers where he stated, at p. 260:
Every word of that judgment, which, in my view, as in that of the learned Lords Justices in the Court of Appeal, is sound in principle and consistent with authority, is applicable in the present case.
28 Identification of the community for whose benefit the statutory power or duty exists may help in the classification of the statutory power or duty as public or “predominantly private”. Once the classification of the power or duty is determined to be public, any claim against the public authority “correlative” thereto attracts the protection of the special limitation period. Examples of school situations where the plaintiff came within the “public” intended to be benefited include Griffiths v. Smith, [1941] A.C. 170 (H.L.) (a parent injured attending a school exhibition of her son’s classroom work), and Moffatt v. Dufferin County Board of Education, [1973] 1 O.R. 351 (C.A.) (a child injured by an unsafe assignment by his teacher to move a piano).
29 The correlative right approach was first proposed by Lord Shaw of Dunfermline in Myers, at pp. 263-64:
If there be a duty arising from statute or the exercise of a public function, there is a correlative right similarly arising. A municipal tramway car depends for its existence and conduct on, say, a private and many public Acts, and the corporation in running it is performing a public duty. When a citizen boards such a car, in one sense he makes, by paying his fare, a contract; but the boarding of the car, the payment of the fare, and the charging of the corporation with the responsibility for safe carriage are all matter of right on the part of the passenger, a public right of carriage which he shares with all his fellow citizens, correlative to the public duty which the corporation owes to all. . . .
But where the right of the individual cannot be correlated with a statutory or public duty to the individual, the foundation of the relations of parties does not lie in anything but a private bargain which it was open for either the municipality or the individual citizen, consumer, or customer to enter into or to decline. [Emphasis added.]
It will be noted that in Lord Shaw’s illustration there was “in one sense, . . . by paying [a] fare . . . a contract”, nevertheless the limitation applied because the contractual claim could be correlated “to the public duty which the corporation owes to all”. The “correlative right” approach usefully highlights the analysis that must be made of a plaintiff’s statement of claim in these cases, and, with respect, I do not share Major J.’s concern (at para. 94) that this approach will remove “all claims in contract from the protection of the statute” or will exclude “most tort claims as well” (para. 95). It is true, as my colleague points out at para. 99, that the Court has to look at the conduct of the public authority within this framework of public powers and duties, but that is another way of saying that the application of the statute ultimately turns on the precise characterization of the plaintiff’s claim.
30 The linkage between plaintiffs’ rights and correlative public duties developed in Sharpington and refined in Myers was not only reflected in McGonegal and Berardinelli but is emphasized in more recent English decisions such as Government of Malaysia v. Lee Hock Ning, [1974] A.C. 76 (P.C.). In that case, the Government of Malaysia had entered into contracts with the respondent contractor for the construction of classrooms at primary schools. A sum fell due for payment to the contractor under a contract. The Government pleaded that the claim was barred by the provision of s. 2 of the Public Authorities Protection Ordinance, 1948 (Malaysia), No. 19, the action not having been commenced within 12 months of the default complained of. In rejecting the defence, Lord Kilbrandon said, at p. 84:
Here the right of the contractor, as in Sharpington ... is correlated not with a statutory right or duty, which is the provision of education, but with the obligations entered into by the authority in their contract with him.
. . .
In other words, to use Lord Shaw of Dunfermline’s test, the rights of their customers were correlated with a statutory duty owed to them as members of the commercial community in whose interests the statutory functions were to be perform