Supreme Court of Canada
Quebec Workmen’s Compensation Commission v. Lachance, [1973] S.C.R. 428
Date: 1971-10-05
Quebec Workmen’s Compensation Commission (Defendant) Appellant;
and
Marie-Ange Lachance (Plaintiff) Respondent.
1970: October 27; 1971: October 5.
Present: Fauteux C.J. and Abbott, Martland, Hall and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Motor vehicle—Traffic accident—Death of an employee—Resolutions making employees subject to the provisions of the Workmen’s Compensation Act, R.S.Q. 1941, c. 160, as amended—Right of action under art. 1056 of the Civil Code—Effect of contract between the employer and the employee—Widow’s personal income and share of the estate of the husband in assessing damages—Pension Act, R.S.Q. 1941, c. 13 as amended.
The husband of the plaintiff died in an automobile accident. When the accident occurred, the victim was riding in an automobile driven by D, which they were using in the performance of their work for which they were employed by the Quebec Workmen’s Compensation Commission. D’s fault is admitted and his liability under the general law is not in dispute, nor that of the Commission.
The plaintiff sued the Commission and D under art. 1056 of the Civil Code for the damages, and obtained a judgment ordering them jointly and severally. The Court of Appeal affirmed the judgment of first instance.
The Commission contends that the plaintiff had no remedy under the general law since by resolution it had made all its employees subject to the provisions of the Quebec Workmen’s Compensation Act “for any accident sustained by its members and employees arising out of or in the course of the work”. Secondly the Commission claims that during his lifetime the husband waived all recourse against the Commission. Finally, the Commission submits that the sum awarded for damages is unwarranted in law and exorbitant in fact.
Held: The appeal must be dismissed.
The defendant did not have the power to place itself or its employees and their dependants within
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the purview of the Workmen’s Compensation Act by these resolutions or to make the provisions of this Act binding on it and its employees with respect to the legal consequences of an industrial accident which might be sustained by a member of its staff.
The right of action conferred by art. 1056 of the Civil Code is personal to the individuals mentioned therein, and independent of any right of action which could be exercised by the victim during his lifetime, or by his legal representatives on his death. Nor is it possible in this case to set up against plaintiff any contract conducted between her husband and the defendant, if any such contract exists, to relieve the latter of any liability with respect to him.
Regarding the amount of damages, allowance cannot be made for the widow’s personal income, or her share in her husband’s estate. Nor can the pension which the widow could claim for the death of her husband be taken into account, whether this pension derives from the Workmen’s Compensation Act or the Pensions Act.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal side, province of Quebec, dismissing an appeal from a judgment of the Superior Court of Quebec. Appeal dismissed with costs.
André Gagnon, Q.C., for the defendant, appellant.
Georges Emery, Q.C., for the plaintiff, respondent.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—Fernand Chrétien, the husband of respondent Marie-Ange Lachance, died in an automobile accident which took place on February 20, 1963, on the outskirts of the village of Notre-Dame-de-la-Doré in the province of Quebec, leaving two children below legal age, Paul and René, in addition to his wife. When the accident occurred, the victim was riding in an automobile driven by Clément Dussault, which they were using in the performance of the work for which they were employed by the Quebec Workmen’s Compensation Commission.
Personally as well as in her capacity as tutor for Paul and René, respondent sued the Commission and Dussault under art. 1056 of the
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Civil Code for the damages resulting from this death; following a jury trial presided over by Pierre Letarte J. she obtained a judgment ordering them jointly and severally to pay her $47,000 personally and $28,000, consisting of $12,000 for her son Paul and $16,000 for her son René, in her capacity as tutor.
Each defendant appealed from this judgment. However, as the points at issue were the same in both appeals, the parties agreed to proceed only with the Commission’s appeal.
The Court of Appeal, then constituted by Montgomery, Rivard and Brossard JJ., dismissed this appeal and affirmed the award, although Montgomery J. would have reduced by $15,000 the amount of damages awarded to respondent personally. The majority opinion was prepared by Brossard J. and wholly concurred in by Rivard J.
Hence the present appeal by the Commission.
It is to be noted that Dussault’s fault is admitted and his liability under the general law is not in dispute, nor is that of the Commission.
The first and principal contention submitted is that respondent Lachance had no remedy under the general law since the Commission, by two resolutions, one in November 1945 and the other in February 1956, had made all its employees subject to the provisions of the Quebec Workmen’s Compensation Act “for any accident sustained by its members and employees arising out of or in the course of the work”.
The Superior Court and the Court of Appeal held that the Commission did not have the power to place itself or its employees and their dependants within the purview of the Workmen’s Compensation Act by these resolutions, or to make the provisions of this Act binding on it and its employees with respect to the legal consequences of an industrial accident which might be sustained by a member of its staff.
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We all respectfully concur in these conclusions, as we informed the parties at the hearing when we dispensed with pleading on this point by counsel for the respondent.
Secondly and alternatively, appellant claims that during his lifetime respondent’s husband waived all recourse against the Commission. In support of this, appellant pleads that it adopted the aforementioned resolutions at its employees’ request; that these were published; that respondent’s husband in particular, in view of the nature of his duties, could not have been unaware of their existence or have misunderstood their legal consequences; that by subsequently continuing to work for the Commission he had agreed to be bound by the Workmen’s Compensation Act, and to derive all benefits therefrom as part of his salary and working conditions; and that in the circumstances this acceptance amounted to a waiver. From this appellant concludes that respondent, who accepted the estate of her deceased husband ab intestato, is bound by this waiver.
It is sufficient, to dispose of this second contention, to note that the right of action conferred by art. 1056 of the Civil Code is personal to the individuals mentioned therein, and independent of any right of action which could be exercised by the victim during his lifetime, or by his legal representatives on his death. In short, respondent holds this right of action by law and not from her husband, such right being no part of the latter’s estate. Robinson v. C.P.R.; Miller v. Grand Trunk Co. Nor is it possible in this case to set up against respondent any contract concluded between her husband and the Commission, if any such contract exists, to relieve the latter of any liability with respect to him. Canadian Pacific Railway Co. v. Mrs. McGinn.
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Finally, appellant submitted that the sum awarded for damages is unwarranted in law and exorbitant in fact. In law, appellant contends that in assessing the damages authorized by art. 1056 of the Civil Code allowance must be made for the financial position of the individual seeking redress of the loss caused by the death, and more particularly, for the financial benefits that may accrue to him as a result of it. Consequently, it adds that the trial judge erred in law by excluding from the record, as not required in the circumstances, any evidence that might relate to respondent’s personal income, or to the share in the estate or the pension which she and the children could claim for the death of Fernand Chrétien. In fact, notwithstanding this decision, the record indicates that the widow and children are the heirs in law of the victim’s estate; that respondent annually received between $1200 and $1300 as investment income; and that she received a monthly pension from the province, which she herself sets in her testimony at $96. The record is silent on the value of the victim’s estate and the type and value of respondent’s investments.
The Court of Appeal, like the Superior Court, refused to uphold appellant’s contentions. Montgomery J., dissenting in part, expressed the opinion that the trial judge had erred in law in refusing to admit any evidence on the point in the record. He felt, however, that justice could be done between the parties by subtracting from the amount awarded to the widow personally the sum of $15,000, which in round figures represents the cost of a pension of $96 monthly, or $1152 annually.
Let us say, regarding the reasons given in support of the majority judgment, that Brossard J., in his lengthy review of the point, referred especially to the 1886 decision of this Court in Grand Trunk Railway Co, v. Beckett, to the 1906 judgment of the Privy Council in Miller v. Grand Trunk Railway Co. of Canada, to H. &
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L. Mazeaud’s Traité de Responsabilité Civile, 4th ed., vol. 3, p. 513, nos. 2398 and 2398-2, from which he cited lengthy passages that I do not feel need be repeated here, and to the analogy he finds between the nature of the pension right and that of the right to an insurance benefit, which under art. 2468 of the Civil Code—incorporated in the Civil Code in 1942 and approving the existing case law—can in no way lessen or alter the civil liability; the learned judge came to the conclusion that appellant could not rely, in support of a reduction or lessening of its responsibility, on facts which do not concern it, and which would have come into existence on the death of Fernand Chrétien in any case, independently and with no relation to the tortious nature of the event resulting in damage.
In the case at hand I must say that, with all respect for the opposite view, I concur in the conclusions of the majority opinion. Allowance definitely cannot be made for the widow’s personal income, which had accrued to her before the death of her husband. Nor can the share of the estate devolving on the widow and children be taken into account, without making those responsible for the event that produced the damage benefit from the providence of the deceased and from the savings he was able to accumulate for the benefit of his heirs, and without in this way making him indirectly, through his legal representatives, bear a portion of the damages attributable to those who committed, or who are answerable for, the quasi‑delict which resulted in his death. On this point it is worth referring to Meredith, Civil Law on Automobile Accidents, p. 256, and to Frenette, L’incidence du décès de la victime d’un délit ou d’un quasi-délit sur l’action en indemnité, p. 59 et seq. With regard to the pension it is to be noted, as appears from the record, particularly the pleadings, the testimonies, and the arguments presented by the parties at the hearing, as well as the summary made of it by the trial judge, and from the factums or arguments sub-
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mitted in this Court, that we are dealing with a pension whose origin is not contractual but legislative, authorized either by the Quebec Workmen’s Compensation Act, R.S.Q. 1941, c. 160 as amended, or by the Pensions Act, R.S.Q. 1941, c. 13 as amended, as these two statutes were at the time of the death of Fernand Chrétien. To decide the question before us there is no need, in my opinion, to consider whether payment of the pension is to be based on the Workmen’s Compensation Act or on the Pensions Act. If, on the one hand, it is based on the Workmen’s Compensation Act, this is necessarily because, upholding the validity of its resolutions, the Commission logically felt itself obliged to pay the pension specified by the provisions of this statute, to which it purported to subject its own personnel. Thus, having already expressed the opinion that the Commission did not have this power, it follows that respondent has no right to claim a pension from the Commission nor has the latter any right to pay her such a pension under this statute, and that accordingly the question whether such a pension must be taken into account in assessing the damages authorized by art. 1056 of the Civil Code becomes purely academic. If, on the other hand, as I believe, this is a pension paid to an employee’s widow under the Pension Act, it follows that being a contributory pension, it is not to be taken into account in assessing these damages, as was ruled by the Judicial Committee of the Privy Council in Miller v. Grand Trunk Co., supra.
Lastly, regarding appellant’s claim that the amount of damages awarded is based on an erroneous, and in any event exaggerated, computation, I have nothing to add to the reasons given for dismissing this claim in the Court of Appeal, and I see no need to reiterate the consistent rulings of this Court concerning the justification for disturbing the quantum of damages awarded by the two provincial Courts.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
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Solicitor for the defendant, appellant: André Gagnon, Montreal.
Solicitors for the plaintiff, respondent: Blain, Piché, Godbout, Emery, Blain & Vallerand, Montreal.
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