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Feldstein vs. Alloy Metal Sales Ltd.

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 2, Number 4 (April 1963) Article 13Feldstein vs. Alloy Metal Sales Ltd.C. R. BallFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationBall, C. R.. "Feldstein vs. Alloy Metal Sales Ltd.." Osgoode Hall Law Journal 2.4 (1963) : 530-533.http://digitalcommons.osgoode.yorku.ca/ohlj/vol2/iss4/13OSGOODE HALL LAW JOURNALactions. Will the Canadian Courts express the view that sinceSimonin v. Nalcc was wrongly decided, when there is no foundationfor jurisdiction in either a void or voidable marriage based oncelebration within the jurisdiction thus overruling Spencer v. Ladd59and Reid v. Francis?60 Will the Canadian courts overrule the decisionin Gower v. Starrett61 and draw a distinction between void andvoidable marriages and hold, as did the House of Lords, thatthere is no jurisdiction on the basis of celebration within the juris-diction in the case of a voidable marriage? Or will subsequentCanadian decisions adopt the reasoning in Gower v. Starrett62 andfind no distinction between void and voidable marriages and furtherhold that though the "rule" in Simonin's case, though wrongly de-cided, is to be applied in both void and voidable marriages? Thefinal question raised is whether or not the Ontario courts will reversetheir earlier position 63 and subsequently assume jurisdiction on thebasis of residence or even celebration within the province or whetherthey will continue to limit their jurisdiction in voidable marriagesto the sole ground of domicile within the province? It is submittedthat in view of the fact that the analogy between divorce and voidablemarriages expressed in Inverclyde v. Inverclyde64 and followed inFleming v. Fleming65 was disapproved of in Ramsay-Fairfax v.Ramsay-Fairfax66 the Ontario courts will be less reluctant to extendtheir jurisdiction in nullity actions especially since the House ofLords has held Inverclyde v. Inverclyde67 to be wrong insofar as itrefused to recognize residence as a grounds for jurisdiction.68 Theapproach to be eventually taken by the Canadian courts and theeffect of the Ross-Smith decision on this approach must be patientlyawaited until the issues are raised before them.RON RuBiNoFFOHARTLEY NATHAN"FELDSTEIN VS. ALLOY MTETAL SALES LTD.-NEGLIGENCE--VICARIOUSLIABiLrrY-GRATuITous PASSENGERS-SECTION 105, ONTARIO HIGH-WAY TRAFFIc Act-An article, Section 105: Ontario Highway TrafficAct in Volume 2, Part 3 of the Osgoode Hall Law Journal'briefly reviewed the operation of the "gratuitous passenger" sectionof the Ontario Highway Traffic Act2 placing special emphasis on the5 9 Supra, footnote 50.60 Supra, footnote 52.61 Supra, footnote 51.6 2 Supra, footnote 51.63 Fleming v. Fleming [1934] 0.1 588.6 4 Supra, footnote 54.65 Supra, footnote 63.6 6 Supra, footnote 57.67 Supra, footnote 54.6s Ross-Smith v. Ross-Smith [1962J 1 All E.R. 344, p. 354.*Messrs. Rubinoff and Nathan are in the third year at Osgoode HallLaw School.12 O.H.L.J. (1961-62) p. 322.2 lS.O. 1960, c. 172, s. 105.(VOL. 2:508Case Commentdecision of the Ontario Court of Appeal in Harrison v. Toronto Motor(ar and Krug.3In a recent decision, Feldstein v. Alloy Metal Sales Ltd. andMathews,4 Mr. Justice Ferguson was faced with an almost identicalfactual situation as was the Ontario Court of Appeal in the Harrisoncase but he came to an opposite conclusion.The facts of the Feldstein case can be set out briefly. Mrs.Feldstein, an employee of Alloy Metal Sales was injured while apassenger in one of her employer's automobiles. Alloy's office waslocated some distance from downtown Toronto and it was the com-pany's policy to provide free transportation service for employeeswho wished to shop downtown during their lunch hour. The co-defendant, Mathews, a servant of Alloy Metal, was employed as achauffeur to drive the company station wagon on these noon-hourexcursions. Mrs. Feldstein was found to have been injured as a resultof the negligence of Mathews, and he in turn was found to have beenacting within the scope of his duties at the relevant time.Section 105 of the Highway Traffic Act provides as follows:105(1) The owner of a motor vehicle is liable for loss or damage sus-tained by any person by reason of negligence in the operation of themotor vehicle on a highway unless the motor vehicle was without theowner's consent in the possession of some person other than the owneror his chauffeur, and the driver of a motor vehicle not being the owneris liable to the same extent as the owner.105(2) Notwithstanding subsection I, the owner or driver of a motorvehicle, other than a vehicle operated in the business of carrying pas-sengers for compensation, is not liable for any loss or damage resultingfrom bodily injury to, or the death of any person being carried in, orupon, or entering, or getting on to, or alighting from the motor vehicle.Section 105 (1) generally imposes a statutory vicarious liability uponthe owner of a motor vehicle for loss or damage occasioned by thenegligence of the driver of such motor vehicle. Section 105(2) ingeneral exempts the owner and driver from liability where the injuryis sustained by a passenger being carried in a vehicle "not operatedin the business of carrying passengers for compensation."The courts have found exceptions to the bar in 105(2) in threesets of circumstances summarily stated as follows: 5(1) Where there is a term of safe carriage in a private contract105 (2) will not bar the claim of the injured passenger.6(2) Where a servant-passenger is injured while in the course ofhis employment due to a master-owner's negligence in operating hismotor vehicle, 105 (2) does not bar the claim.73 [1945] 1 D.L.R. 286, [1945] O.R. 1. See also C. A. Wright (1945), 23Can. B. Rev. 344, and J. D. Morton (1958), 36 Can. B. Rev., p. 414.4 [1962] O.R. 476.5 Supr, footnote 1 at p. 332.6 Dorosz & Dorosz v. Kock, 28 D.L.R. (2d) 171. [1961] O.R. 422, affd.31 D.L.R. (2d) 139.7 Duchaine v. Armstrong d Legault [1957] O.W.N. 251.19631OSGOODE HALL LAW JOURNAL(3) Where there is a previously existing common law right,such as a master's vicarious liability for the torts of his servantcommitted during the course of his employment, 105(2) does notbar the cause of action against the master.8In the light of the foregoing summary and factual situation, theFeldstein decision can be reviewed. The basis of Mrs. Feldstein'sclaim is stated by Mr. Justice Ferguson as follows: 9The plaintiff's counsel puts her case on four grounds. Firstly she wasan employee of the defendant, Alloy Metal, at the time of the accident,and that she has, as an employee, a cause of action against her employerby virtue of s. 121 of the Workmen's Compensation Act, R.S.O. 1950, c.430 [now s. 124, R.S.O. 1960, c. 437). Secondly, she was being carriedpursuant to an express contract and not gratuitously. Thirdly, s. 50(2)is not a bar to the action because the plaintiff was a servant of thedefendant Alloy at the time and as a servant she has a cause of actionagainst her master for negligence. Fourthly, the defendants cannot availthemselves of the provisions of s. 50(2) because the vehicle does notcome within the exception mentioned, as it was in the plaintiff's con-tention, a vehicle carrying passengers for compensation.lOThe first claim under the Workmen's Compensation Act wasdismissed. Mrs. Feldstein's second claim based on a contract of car-riage was also denied, Mr. Justice Ferguson relying upon Jurasts v.Nemes' held that it was not sufficient for the contract of carriageto arise incidentally from the contract of employment. The "baby-sitter" case 2 in which liability was visited on the basis of contractwas distinguished.' 3 The third claim as stated by Mr. Justice Fergusonseems to rely on a master's direct liability for the safety of his servant.It is submitted that this claim was rightly dismissed if based on apreviously existing common law liability of a master for the safetyof his servant since no such duty exists. The fourth claim was dis-missed on the basis of a statement made by Mr. Justice Laidlaw inJurasits v. Nemes.14 In that case it was held that the test of whetheror not a vehicle was being operated in the business of carrying pas-sengers for compensation was to consider the real and primaryobject of operating the motor vehicle. Mr. Justice Ferguson foundthat the real and primary object of operating the company stationwagon was not to carry passengers for compensation and thereforeit did not fall within the exception to s. 105 (2).What is difficult to understand is why Mrs. Feldstein was unableto recover on the same basis as did Miss Harrison in Harrison v.Toronto Motor Car and K=g'5 namely, on the basis of a master'sliability for the negligence of his servant while in the course of hisSHarrison v. Toronto Motor Car and Krug, supra, footnote 3.9 [1962) O.R 476 at p. 479.10 It is to be noted that section 50(2) referred to by Mr. Justice Fergusonis now section 105(2), Highway Traffic Act, R.S.O. 1960, c. 172.11 (1957) 8 D.L.R-. (2d) 659, [19571 O.W.N. 166.12 Dorosz & Dorosz v. Koch, supra, footnote 6.13 See A. M. Linden (1962) 40 Can. B. Rev. 284, for a discussion of thisclaim dealt with in previous cases.14 (1957) 8 D.L.RL (2d) 659 at page 666.15 Supra, footnote 3.[voL 2:508Case Commentemployment. In that case, Miss Harrison was a nurse being carriedin a motor vehicle driven by a servant of the defendant Krug, themaster of the plaintiff nurse. She was injured due to the negligenceof the driver while he was in the course of his employment. TheHarrison decision turned on the vicarious liability of the master forthe negligence of his servant, the driver. The court reasoned thatsec. 105 (2) was to be strictly construed and therefore did not abrogateany existing common-law rights. The distinguishing facts in theHarrison case, namely that the employer Krug was present in theautomobile and that Miss Harrison was in the course of her employ-ment were held to be immaterial to the decision. It was decidedsolely on the basis of vicarious liability, the existing common lawright held not to be abrogated by s. 105(2). These facts being im-material, Mrs. Feldstein was therefore in the same position as MissHarrison. They both were passengers in a vehicle operated by adriver, employed by the owner of the vehicle, and both were injuredby the negligence of the driver in the course of his employment. Itis submitted that there is no distinction between the two cases andin fact none is made in the judgment. Mr. Justice Ferguson merelymentioned the Harrison case, albeit with approval, and then set itaside without further comment.The doctrine of precedent and stare decisis is a fundamentalprinciple in Anglo-Canadian jurisprudence. When faced with a priordecision of his own appellate court on the same point of law, a trialjudge is obligated either to follow that decision or to make a carefuldistinction in coming to a contrary result. As anomalous as theHarrison decision might appear to be, that in itself is not sufficientto justify a contrary decision.1 6C. R. BALL*RUNNYmEDE IRON & STEEL VS. ROSSEN ENGINEERING & CONSTRUCTIONCo. LTD.-SALE OF GOODS-MIXED SHIPMENTS OF GOODS OF A DIF-FERENT DESCRIPTION-SECTION 29(3) ONTARIO SALE OF GOODS ACT-The purpose of this comment is to consider the effect of the recentdecision of the Supreme Court of Canada in Runnymede Iron & SteelLtd. v. Rossen Engineering & Construction Co. Ltd.1 on the law inrelation to the sale of goods in Ontario. The facts were that Runny-mede Iron made a contract with Rossen whereby the former was topurchase all the "relaying rail" obtained from a salvage operationbeing carried out by the latter at Hawk Lake. It is of some importancethat it was conceded that the contract was one for the sale of goodsby description and that the description was "relaying rails." After16It is to be noted that no appeal was taken from this decision, as asettlement was made out of court.*Mr. Ball Is in the third year at Osgoode Hall Law School.1 (1962), 30 D.L.R. (2d) 410 (S.C.C.), revg. [19542 O.R. 153 (Ont. CA.).1963]

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Feldstein vs. Alloy Metal Sales Ltd.

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