THE KING Vs. SOUTHERN CANADA POWER CO , LTD

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Supreme Court of Canada dated 15 January 1936, reducing the amount of damages awarded by a judgment of the Exchequer Court of Canada, rendered on 29 December 1933, in favour of the appellant, from $80,923.20, with interest thereon from the date of the judgment, to $31,41803. There is a cross-appeal, also by special leave, by which the respondents in the original appeal seek to have the judgment of the Supreme Court reversed and the action dismissed. It will be convenient to describe the original appellant as "the Crown" and the original respondents as "the Power Company".

(2.) The litigation arises from the fact of the construction by the Power Company in the year 1925 of a large power plant and dam across the St. Francis River in the Province of Quebec about two and a half miles above a railway line and bridge belonging at the material time to the Crown in right of the Dominion of Canada, and managed by the Canadian National Railways Company. It is not in dispute that the power, plant and dam were erected according to plans approved by the Minister of Public Works of Canada pursuant to the provisions of a law of Quebec, generally known as the Watercourse Act (Revised Statutes of Quebec, 1925, Ch. 46). By S. 12 of that Act, it is provided in reference to any dam or similar structure in a river constructed pursuant to the provisions of the Act that, "the owner or lessee of any such work shall be liable for all damages resulting therefrom to any person, whether by excessive elevation of the floodgates or otherwise." The action was brought by the Crown for damages alleged to have been caused by a disastrous rush of water and ice in the spring of 1928 by which damages of different kinds were occasioned to a railway embankment near the town of Drummondville, to rolling stock and in other ways. The learned trial Judge (Angers, J.), after a trial which lasted fourteen days and at which more than a hundred witnesses gave evidence, came to the conclusion, which he stated in a very careful judgment, that the Power Company's dam "was responsible for the wash-out of the railway embankment at Drummondville on Sunday. 8 April 1928", and he awarded to the Crown the sum of $80,923.20 as damages.

(3.) On the appeal to the Supreme Court of Canada, that Court by a unanimous decision agreed with the trial Judge that the Power Company's dam was responsible for the washing out of the railway embankment. As will be seen, there was a difference of opinion on other matters arising on the appeal; but the question whether the tremendous rush of water and ice which occasioned some at least of the damage, was caused by the interference of the Power Company with the natural condition of the St. Francis River, is a pure question of fact. Their Lordships see no reason for departing from their long established rule in relation to concurrent findings of fact, and they must accordingly deal with this appeal upon the basis that this difficult question has been decided adversely to the Power Company. It will accordingly be necessary to state the facts only so far as they are relevant to the other questions that arise on the appeal.