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Teetzel, J.

1908

MCNEIL

2.

LEWIS

The defendant is a foreign corporation, and by power of attorney appointed Mr. Vickers, who resides in Toronto, its true and lawful attorney, in the name and place and for the sole use and benefit of the company, to act as its attorney, and to sue and be sued, plead or be impleaded, in any court in Ontario, and on behalf BROTHERS, of the company and in Ontario to accept service of process and receive all lawful notices, and for the purposes of the company to do all acts and execute all deeds and other instruments relating to the matters within the scope of the power of attorney.

It was argued by Mr. Middleton that Mr. Vickers was merely an agent of the company for a limited and special purpose, and was not an officer within the meaning of the rule.

I am unable to accept this view. The purpose of the power of attorney was to comply with the Act respecting the Licensing of Extra-Provincial Corporations, 63 Vict. ch. 24 (O.),* thereby enabling the company to carry on business within Ontario.

The cause of action arose within Ontario, and Mr. Vickers is the only representative of the company upon whom service of process may be effected.

Although the company is a foreign corporation, I think that, having appointed its agent in Ontario and obtained a license to do business here, it was within the contemplation of the rule.

It seems to me that a person occupying the position of Mr. Vickers, able to bind the company in the important matters provided for in the power of attorney, is necessarily an officer of the corporation. The fact that his duties and powers are limited does not prevent the application of the rule. The limitation. of his authority does not affect the right of the plaintiff to examine him for discovery if he is, in fact, an officer.

The usual order will therefore be made directing Mr. Vickers to attend for examination at his own expense.

Costs of motion to plaintiffs in any event.

A. H. F. L.

* 63 Vict. ch. 24, sec. 8 (0.)-"The Lieutenant-Governor in Council may from time to time make regulations respecting the following matters, namely:

66 '(a)

(b) The appointment and continuance by the corporation of a per-
son or company as its representative in Ontario on whom
service of process, notices or other proceedings may be made,
and the powers to be conferred on such representative.

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"(c). 43-VOL. XVI. O.L.R.

LIMITED.

1908

June 8.

[RIDDELL, J.]

BALLENTINE V. THE ONTARIO PIPE LINE Co.

Negligence Independent Contractor Liability-Natural Gas Company—Ex-
ercise of Statutory Powers-Explosion-Collateral Negligence.

The defendant company, acting within their corporate powers and under the
statutory powers conferred by R.S.O. 1897, ch. 200, sec. 3, and ch. 199,
sec. 22, on such companies, instructed a contractor with whom they had a
contract to do such work for them, to make connection with the place of
business of the plaintiff's tenant for the supply of natural gas thereto. The
contractor's employees negligently allowed gas to escape while constructing
a trench for the service pipe from the defendants' main line, which had been
laid along a public street, thus damaging the plaintiff's property:-
Held, that the defendants were liable.

The statutory power to break up and dig trenches in streets implied the duty
of seeing that the gas was not allowed negligently to escape in dangerous
quantities, which duty the defendants could not rid themselves of by
delegating it to another. Such negligence was not merely collateral, but
was negligence in the very act the contractor was engaged to perform for
the defendants.

THIS was an action tried at the Hamilton non-jury sittings, before RIDDELL, J., on May 20th, 1908.

The facts of the case and the contentions of counsel are stated in the judgment.

G. Lynch-Staunton, K.C., for the plaintiff.

J. G. Gauld, K.C., for the defendants.

June 8. RIDDELL, J.-This is an action tried before me, without a jury, at the recent Hamilton Assizes. The parties agreed upon a statement of the facts, which I here subjoin.

"The plaintiff is a retail grocer, and is the owner of the premises on the north-east corner of John and Augusta streets in the city of Hamilton, the southerly portion of the premises being occupied by the plaintiff, and the northerly portion thereof being occupied by one Gordon, a butcher.

The defendants are incorporated under the laws of the Province of Ontario, and obtained from the city of Hamilton a franchise on the 26th day of September, 1904, and being by-law No. 400, the consent, permission and authority of the city to enter upon the streets, public alleys and public grounds of the city of Hamilton, to dig trenches and lay and bury therein, and maintain, operate, and repair mains and pipes for the transportation and

supply of natural gas in the said city of Hamilton, for fuel, heat- Riddell, J. ing and lighting purposes.

1908

v.

ONTARIO PIPE LINE

Co.

The company thereupon entered into a contract with one BALLENTINE Andrew Byrnes, a competent, careful, skilled and independent contractor, and experienced in the construction of natural gas plants, and the necessary services connected with the main lines for the purpose of supplying customers with natural gas, to furnish, construct and complete the defendants' gas plant distributing system in the city of Hamilton, according to the terms of the document produced, which was accepted by the defendant.

"While this contract with Andrew Byrnes was in force and a short time prior to the 6th day of December, 1905, the plaintiff's tenant, William Gordon, requested the defendant to make the necessary connection between the place of business of the said Gordon and the main line of the defendants, which had been laid on John street south, in front of the premises of the plaintiff and of the said Gordon, for the purpose of supplying the said Gordon with natural gas in the premises occupied by him.

"The defendants notified the said Andrew Byrnes to have the said service made in accordance with the contract existing between the defendants and the said Byrnes. The employees of the said Byrnes negligently allowed gas to escape, while constructing the necessary trench in which to lay the service pipe, and such gas finding its way into the cellar occupied by the said Gordon, became ignited with a light therein, causing an explosion, causing damage to the plaintiff's property."

The contract between the defendants and Byrnes is also put in; and it contains provisions that the defendants are to provide the necessary franchises and permits providing for the construction of the pipe lines in Hamilton; that "any injury done to persons or property during the construction of the said lines shall be borne by" Byrnes; that all of the construction work should "be done in first-class workmanlike manner, and subject to" the defendants' "inspection at all times," and that Byrnes should "conform to the inspection laws and ordinances and by-laws in force in the city of Hamilton as to the manner in which" he should "do the work and the conditions in which" he should "leave it after the same is completed"-"all the foregoing work"

Riddell, J.

1908

BALLENTINE

บ.

ONTARIO

to be "done at Byrnes' sole risk and expense," and the defendants "to have the right to inspect all" his "work.

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As I thought something might turn upon the precise contract made between Gordon and the defendants, I offered, on PIPE LINE my return to Hamilton, to take any evidence upon that point. (or any other) if the parties, or either of them so desired. None was offered; and the case stands as I have stated.

Co.

I have had the advantage of very careful and able arguments by counsel on both sides.

The plaintiff contends that the defendants are liable on two grounds: (1) because they were exercising statutory powers under R.S.O. 1897, ch. 199, secs. 22-29, especially sec. 26;* and (2) because they committed a nuisance by allowing the gas to escape during the installation.

The defendants contend that, having employed a competent, skilled and independent contractor to do the work required to be done in the construction of a plant in Hamilton, they are not liable to the plaintiff, and that he should seek his remedy against such contractor.

It is apparent, I think, that this is not the case of a nuisance allowed by the owner of property to exist upon his premises so as to warrant the application of the rule sic utere tuo ut alienum non lædas. There was no nuisance allowed to continue to exist "as connected with a man's house or with his fixed property," as Lord Wensleydale (then Baron Parke) says, in Knight v. Fox (1850), 5 Ex. 721, at p. 724.

From the other point of view the case is by no means free from difficulty; and it may well be contended that the authorities are not conclusive.

Mr. Beven, in his very valuable and accurate work, Negligence in Law (3rd Canadian ed., 1908), in book iv., ch. 3, discusses the limitations on an employer's liability where work is done under an independent contract. He truly says (p. 597): "For a time there was an inclination to favour the proposition that a person is answerable for injury arising in executing work that he has employed another to do; and to hold that the question whether a man were contractor or servant made no difference in the liability

*See infra, p. 663n.

Riddell, J.

1908

of his employer." For this proposition are cited: Bush v. Steinman (1799), 1 B. & P. 407; Sly v. Edgley (1806), 6 Esp. 6 (but "Espinasse is a notoriously untrustworthy reporter"); Matthew BALLENTINE v. West London Waterworks Co. (1813), 3 Camp. 403 (Campbell is one of the best).

The learned author continues: "The tendency then changed, and ultimately the view was adopted that limited the liability of the owner of premises to those acts which he definitely authorizes or that are in the nature of a nuisance which he permits." Very many cases are cited and considered by the learned author not confined to those dealing with the liability of the owners of land or other property; and it may be said, in general terms, that it seems to be established that where one person employs another, an independent contractor, to do an act which he himself might do, it is not the general rule that negligence upon the part of the contractor will render the employer liable. Many cases are discussed by the late Mr. Justice Gwynne in Walker v. McMillan (1881), 6 S.C.R. 241, pp. 275 seq.

I think, however, that the present case is governed by special considerations. The defendants are a corporation incorporated either under R.S.O. 1897, ch. 200, or 7 Edw. VII. ch. 34, its successor. Section 4 of R.S.O. 1897, ch. 200, is not repealed by the later Act, schedule E; and sec. 4 makes applicable to the defendants R.S.O., ch. 199 (inter alia), sec. 22.* The power to break up and dig trenches in streets is statutory, whether derived from sec. 3 of the ch. 200† or from sec. 22 of the ch. 199.

*R.S.O. ch. 199, sec. 22:-The company may break up, dig and trench so much and so many of the streets, squares, highways, lanes and public places of the municipalities for supplying which with gas or water, or both; the company has been incorporated, as are necessary for laying the mains and pipes to conduct the gas or water, or both, from the works of the company to the consumers thereof, doing no unnecessary damage in the premises, and taking care as far as may be to preserve a free and uninterrupted passage through the said streets, squares, highways, lanes and public places while the works are in progress.

† R.S.O. 1897, ch. 200, sec. 3:--Every such company may construct, maintain, complete and operate works for the production of steam, hot air or hot water, for purposes of power and heating, or for the production, sale and distribution of electricity or natural gas for purposes of light, heat and power, and may conduct the same by any means, through, under and along the streets, highways and public places of the city, town or other municipality; but as to such streets, highways and public places, only upon and subject to such agreement in respect thereof as shall be made between the company and the municipality and under and subject to any by-law of the council of the municipality passed in pursuance thereof.

v.

ONTARIO

PIPE LINE

Co.

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