Supreme Court of Canada
Montreal v. Vaillancourt, [1977] 2 S.C.R. 849
Date: 1976-05-05
City of Montreal (Defendant) Appellant;
and
Donalda Vaillancourt (Plaintiff) Respondent.
1976: March 19; 1976: May 5.
Present: Judson, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Municipal law—Action against a municipality for damages—Notice mailed within fifteen days of accident and received on the seventeenth day—Saturday not a holiday—Time limits only start to run on date of discovery of accident—Post Office Act, R.S.C. 1970, c. P-14, s. 41—Interpretation Act, R.S.Q. 1964, c. 1, ss. 52 and 61—An Act to revise and consolidate the Charter of the City of Montreal, 1959-60 (Que.), c. 102, arts. 1088 and 1170—Code of Civil Procedure, arts. 6, 8 and 165(4).
Respondent’s husband fell on a sidewalk of the City of Montreal on January 26, 1973 and died a few hours later. Approximately ten days after the accident, on about February 5, the actual cause of her husband’s death was made known to respondent, it being the accident and not a heart condition as she had first believed. Fourteen days after the accident, on Friday, February 9, counsel for the respondent sent appellant the notice stipulated in the Charter of the City of Montreal. The letter was not received until Monday, February 12, seventeen days after the accident. On the basis of art. 1088 of the Charter, appellant filed a motion to dismiss the action. This was granted by the Superior Court, but the judgment was quashed by the Court of Appeal. Hence the appeal to this Court.
Held: The appeal should be dismissed.
This Court cannot accept the Court of Appeal’s conclusion that, on the basis of Magann v. Auger (1901), 31 S.C.R. 186, and art. 41 of the Post Office Act, appellant satisfied the requirements of art. 1088 of the Charter of the City of Montreal by mailing its registered letter on the fourteenth day following the accident. Magann can be relied on only if the parties have expressly or implicity appointed the Post Office as their agent.
This Court also cannot accept the conclusion that when the time limit of fifteen days expires on a Saturday, it is extended until the next following juridical day
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(Monday in the case at bar). Even though the Code of Civil Procedure considers Saturday a non-juridical day, it is the general law found in the Interpretation Act which is applicable, and it uses the word “holiday”, not “non-juridical day”. Nowhere in this provision is Saturday defined as a holiday.
Nevertheless, although this Court does not accept the reasoning of the Court of Appeal or respondent’s conclusion concerning the extension of the time limit, it dismisses the appeal for another reason. Respondent indicated in her declaration, which must, for the time being, be taken as true, that the real cause of her husband’s death only came to her attention on about February 5. The notice imposed by the legislator in both the Charter and the Cities and Towns Act is a very heavy burden on claimants and must be interpreted so as not to make the exercise of the right aleatory. If, in the case at bar, the starting point of the time limit is the date of the accident and not the date of discovery, the limit becomes so short as to be practically a denial of the right of action. This would be an extravagant conclusion. Therefore, one must conclude that the limit did not start to run until around February 5 and that, consequently, receipt of the letter by appellant on the twelfth of the same month satisfied the requirements of art. 1088 of the Charter.
Magann v. Auger (1901), 31 S.C.R. 186; City of Montreal North v. Bougie, [1970] C.A. 148, distinguished; Charlebois v. Baril, [1928] S.C.R. 88; Vaillancourt v. The Eastern Townships Regional School Board, [1974] C.A. 172, followed; Blair v. City of Montreal (1940), Que. K.B. 255; City of Quebec v. Baribeau, [1934] S.C.R. 622; Rhéaume v. City of Quebec, [1959] S.C.R. 609; Méthot v. Montreal Transit Commission, [1972] S.C.R. 387; City of Ile Perrot v. Goulet-Wiseman, [1977] 1 S.C.R. 175, referred to.
APPEAL from a judgment of the Court of Appeal of Quebec[1] reversing a judgment of the Superior Court allowing a motion to dismiss the action. Appeal dismissed.
Jean Badeaux, Q.C., for the appellant.
Allen Feldman, for the respondent.
The judgment of the Court was delivered by
DE GRANDPRÉ J.—By its motion to dismiss, defendant-appellant is seeking to have plaintiff‑respondent deprived of her right of action on the
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grounds that the notice of accident was not received by the City within fifteen days of the event, but seventeen days thereafter (art. 1088 of the Charter of the City of Montreal). The suit claims damages as a result of the death of respondent’s husband, who died a few hours after falling on a sidewalk of the municipality on Friday, January 26, 1973. On Friday, February 9, a notice was sent to the City as stipulated by its Charter, by registered mail, but this letter was not received until Monday, February 12. The motion to dismiss the action was granted by the Superior Court in a judgment without reasons (December 17, 1973), but this judgment was quashed by the Court of Appeal. Appellant obtained leave to enter an appeal to this Court.
It is first of all necessary to quote art. 1088:
Notwithstanding any legislative provisions inconsistent herewith, no right of action shall exist against the city for the damages resulting from bodily injury caused by an accident, or for damages to moveable or immoveable property, unless within thirty days from the date of such accident or damages, and, in the case of accident and damages caused by a fall on the sidewalk or the roadway, unless within fifteen days from the date of such accident, the city has received a written notice containing the particulars of the damages sustained, indicating the surname, Christian names, occupation and address of the person who has suffered the same, giving the cause of such damages and specifying the date and place where the same occurred.
No action for damages or for compensation shall be instituted against the city before the expiration of thirty days from the date of the receipt by the city of the notice prescribed in the preceding paragraph.
The absence of such notice shall not, however, deprive the victim of an accident of his right of action, if he proves that he has been hindered from giving it by irresistible force or for any other similar reason deemed valid by the judge or the court but no reason shall be declared valid if the victim of the accident has been able to communicate with some relation, friend or acquaintance during the course of the fifteen days specified by the first paragraph or if, within such delay, he has signed a transfer of a part of his claim in favour of a third party.
The Court of Appeal’s finding is based on s. 41 of the Post Office Act, R.S.C. 1970, c. P-14, which reads as follows:
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Subject to the provisions of this Act and the regulations respecting undeliverable mail, mailable matter becomes the property of the person to whom it is addressed when it is deposited in a post office.
Basing itself on Magann v. Auger[2], and on the interpretation of that case in City of Montreal North v. Bougie[3], the Court of Appeal concluded that since the registered letter was mailed on the fourteenth day after the accident and thereby became the “property” of the City under the terms of s. 41, the City is deemed by law to have received the notice at that time, even though the notice was not actually received until the seventeenth day after the accident. I cannot agree with this finding.
Magann deals with a very specific question, namely, the place of formation of a contract when the parties have selected the mail as the means of communicating an offer and its acceptance. This was a very specific case and this narrow rules cannot be extended generally to all cases, as was pointed out in Charlebois v. Baril[4]. I can do no better than to cite the holding:
Held that the decision of this court in Magann v. Auger (31 Can. S.C.R. 186), holding that the mailing of the plaintiffs letter of acceptance to the defendant constituted communication of it to him, has no application to a case where the offer is communicated, as in the present case, not by mail, but by other means. The Magann Case was one of contract by correspondence; and, the offer having been sent by mail, that was held to constitute a nomination by the sender of the post office as his agent to receive the acceptance for carriage to him. To make a contract the law requires communication of offer and acceptance alike either to the person for whom each is respectively intended or to his authorized agent.
This principle, that s. 41 of the Post Office Act may be relied on only if the parties have expressly or implicitly appointed the Post Office as their agent for the relevant purposes, has been reaffirmed on several occasions in several cases arising from various circumstances. Reference need only
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be made here to Vaillancourt v. The Eastern Townships Regional School Board[5], especially at p. 173.
Respondent maintained that since the City Charter contains provisions which allow it, for example, to send tax bills to taxpayers by mail, it thereby appoints the Post Office as its agent for all legal purposes. This argument must be rejected because, in themselves, such legislative provisions cannot constitute the express or implied consent required by the authorities. This is especially true as the Charter has the following to say about municipal notices in art. 1170:
Any special notice which, under this chapter, is required to be given to any person may, unless otherwise provided, be served upon him at his residence or place of business in the city. If he has no residence or place of business in the city, he may signify his address in writing to the city clerk, in which case any notice may validly be sent to him to that address by registered mail. A person who has no residence or place of business in the city and has not so signified his address to the clerk shall not be entitled to such notice.
Thus the rule is that in matters of special notice by the City, service is required. Consequently it cannot be held that matters of special notice to the City, as in this case, the rule is so different as to constitute the Post Office the City’s agent.
Appellant is thus right in maintaining that the Court of Appeal’s finding cannot be supported by the Post Office Act. In saying this, I am not expressing any opinion on the situation in terms of s. 622 of the Cities and Towns Act, R.S.Q. 1964, c. 193, dealt with in City of Montreal North v. Bougie cited above, except to emphasize that I see a major difference between the word “give”, found in the Cities and Towns Act, and the word “receive”, found in the Charter of the City of Montreal.
Respondent submits a second argument in support of the Court of Appeal’s finding, namely, that Saturday and Sunday must not be counted in calculating time limits, since they are considered
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non-juridical days. Because of its finding on the first point, the Court of Appeal did not think it necessary to deal with this point. Respondent cites the third paragraph of art. 8 of the Code of Civil Procedure:
In computing any delay fixed by this Code or any of its provisions, including the delays for appeal:
…
3. Saturday is considered a non-juridical day, as are the 2nd of January and the 26th of December.
She contends that since the courts have held (see Blair v. City of Montreal[6], City of Montreal v. Choquette, unpublished decision of June 4, 1973, No. 14642 C.A., Montreal, for which leave to appeal was denied by this Court on October 2, 1973[7]) that a notice of accident is not late if it is received on the sixteenth day when the fifteenth day is a Sunday, the same reasoning applies when the fifteenth day is a Saturday. Are Saturday and Sunday wholly equivalent? I think not.
Article 6 lists non-juridical days for all procedural matters governed by the Code. It is only by extension and for purposes of the Code of Civil Procedure that Saturday “is considered a non‑juridical day”. The Commissioners’ Report on arts. 7 and 8 clearly establishes the limited scope of this provision:
The fact of assimilating Saturday to a non-juridical day in the calculation of a procedural delay permits taking into account the habit of lawyers of not opening their offices on Saturdays. It has been suggested that Saturday should be treated in all cases and for all purposes as a Sunday, but there are objections to so doing. First of all it is necessary to think of the interests of a party whose right might be on the point of being prescribed. It is also necessary to take into account that in certain urgent circumstances it may be desirable that some juridical act may be done on a Saturday. Finally, would it not perhaps be too much to add to the non-juridical days the fifty-two Saturdays in the year? However, it might be appropriate to make an exception for the Court of Appeal, but in such case an independent provi-
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sion of law can easily be adopted if it is considered appropriate.
A notice of an accident is not a mere procedural measure. The leading case of The City of Quebec v. Baribeau[8], established this and it has been affirmed many times since. As examples may be mentioned Rhéaume v. City of Quebec[9], and Méthot v. Montreal Transit Commission[10]. Thus it is not the Code of Civil Procedure that is applicable in the case at bar, but the general law found in the Interpretation Act, R.S.Q. 1964, c. 1, s. 61, which uses the word “holiday”, not “non-juridical day”. Nowhere in this provision is Saturday defined as a holiday. Under the general law, Saturday is thus a day like any other, which clearly is not the case with Sunday and the other holidays listed in the Interpretation Act. It is precisely because Sunday and these other days are holidays, and s. 52 of the Interpretation Act states:
If the delay fixed for any proceeding or for the doing of anything expire on a non-juridical day, such delay shall be extended until the next following juridical day. (emphasis mine)
that the Court of Appeal in Blair and Choquette came to the conclusion that, in the circumstances of these cases, the time limit was extended to the following day. That is not the situation in the case at bar and I must conclude that, when the time limit of fifteen days expires on a Saturday, it is not “extended until the next following juridical day”.
In her pleading before this Court, respondent has for the first time raised the following point:
—the motion to dismiss appellant’s action presupposes that the facts alleged are true (art. 165(4) C.C.P.);
—article 8 of the declaration attached to the writ alleges:
THAT it was only approximately ten (10) days following the accident that the actual cause of the death of the late Arthur Thomas Lovett was made known to
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the Plaintiff, it being theretofore reported in the Police report and the said Arthur Thomas Lovett was believed to have died from a heart condition and Plaintiff was only able to communicate with legal counsel at the earliest, on the afternoon of February 8th 1973;
—hence the starting point of the time limit for the notice could only be around February 5, so that the letter received by the City on February 12 was received within the legal limit.
There is no doubt that the two premises of this syllogism are correct. Is the conclusion also correct? I think so.
There is no doubt that the legislator imposed a very heavy burden on claimants in cases covered by art. 1088 of the Charter. This burden is in derogation of the general law in matters of delictual liability, and as such must be interpreted so as not to make the exercise of the right aleatory.
Furthermore, it must be remembered that the legal provision requiring notice of an accident admits of exceptions; in other words, the obligation to give notice is not absolute. Cases can arise which allow the claimant to proceed anyway with his action without giving notice. This has been decided inter alia by this Court in City of Ile Perrot v. Goulet-Wiseman[11], which, though decided under the Cities and Towns Act, expresses the rule which must guide us in our study of appellant’s Charter. I quote the following from it:
…if no notice has been given, and if this failure has sufficient justification, the victim is relieved of his obligation and may institute proceedings without any other previous condition.
The case at bar is halfway between the ordinary case in which the victim is able to give the prescribed notice immediately after the accident occurs and the case considered in Ile Perrot, in which the victim was relieved of her obligation because she was not able to give the necessary notice within the prescribed time limit. In the case at bar, since the facts came to the claimant’s attention some ten days after the accident (this is
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indicated in her declaration which must, for the time being, be taken as true), she was obviously not relieved of the obligation created by art. 1088 of the Charter. On the other hand, if this obligation has as its starting point not the date of discovery but the date of the accident, we arrive at the situation where the time limit for acting granted to the claimant becomes so short as to be practically a denial of the right of action. This would be an extravagant conclusion which I could not agree with.
I do not see why in matters of prescription the law would recognize the existence of cases which suspend its running while in matters of notice, this would not be true. Even if the notice of accident is not a proceeding, it is impossible for me to consider it more strictly than the prescription. In my opinion it follows that since the period did not start to run until February 5, receipt of the letter by the City on the twelfth satisfied the requirements of art. 1088 of the Charter.
For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Côté, Péloquin & Bouchard, Montreal.
Solicitors for the respondent: Frumkin, Feldman & Glazman, Montreal.