Hamel v. Brunelle and Labonté, [1977] 1 SCR 147

SUPREME COURT OF CANADA

Hamel v. Brunelle and Labonté, [1977] 1 S.C.R. 147

Date: 1975-06-26

Dame Fernande Hamel (Plaintiff) Appellant; and

Paul Brunelle and Noël Labonté (Defendants) Respondents.

1975: March 12; 1975: June 26.

Present: Martland, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL .FROM THE COURT OF APPEAL FOR QUEBEC

Damages—Compensation to widow and children of victim—Loss incurred by estate—Civil Code, art. 1056

Appeal—Amendment awarding greater compensation than that claimed at trial level—Code of Civil Proce­dure, art. 203, 500, 523—Supreme Court Act, R.S.C. 1970, c. S-19, s. 50.

As the result of a car accident in which her husband was killed, appellant brought an action against the two respondents, whom the Quebec courts found to be joint­ly and severally liable. In the Superior Court plaintiff obtained $51,082 personally, and claimed and obtained $21,000 as tutrix of her three minor children and $10,000 as curatrix of her unborn child. The trial judge added that if a larger amount had been claimed for the children, he would have awarded $53,894.45. Defendants having appealed with a view to reducing the amount of damages awarded, plaintiff made an inciden­tal appeal in accordance with art. 500 of the Code of Civil, Procedure and claimed: (a) an addition of $15,000 as representing the loss incurred by the estate; (b) that she be allowed, in accordance with the terms of art. 523 of the Code of Civil Procedure, to amend her declara­tion to increase the amount claimed for her children to a total of $53,894.45, in order that the Court of Appeal might award the full amount of damages that the trial judge had estimated.

In a majority decision, the Court of Appeal reduced the compensation payable to the widow to $35,000, and unanimously refused to reduce the compensation payable to the children, and to allow the claim for the loss incurred by the estate and the motion to amend.

Hence the appeal by the widow. When this Court pointed out that it had already decided that the assets of the estate must not be taken into account in determining

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the compensation, appellant withdrew her claim under the head of the estate.

Held (de Grandpré J. dissenting in part): The appeal should be allowed,

Per Martland, Pigeon, Dickson and Beetz JJ.: For the reasons given by de Grandpré J., the amount awarded in the trial court to the widow personally should be restored.

The motion to amend was made in accordance with art. 523 of the Code of Civil Procedure and refused by the Court of Appeal solely for the reason that "the claim, subsequent to the judgment of the Superior Court, would be higher than at first instance and beyond what the trial judge could adjudicate, C.C.P. art. 468". Article 523 is part of a reform the general intention of which is expressed in art. 2 of the Code of Civil Proce­dure. To deny a motion to amend made in appeal, on the grounds that by admitting it the Court would be allow­ing something that the Superior Court could not allow, is entirely contrary to the legislator's intention in enact­ing the new Code. When all the provisions of the new Code of Civil Procedure regarding amendments are read together, it becomes clear that the legislator's real intention was that in appeal as at trial, all amendments needed in order to rule on the dispute objectively should be allowed.

Even under the former Code of Civil Procedure, it was well established that necessary amendments were not to be denied without good reasons. In the case at bar respondents did not suggest any except that given by the Court of Appeal. There is no reason to believe that if at trial appellant had claimed a higher amount for her children, defendants would have introduced evidence that they refrained from introducing. If the amendment is allowed, the amount of damages assessed by the trial judge for each child should be allowed.

Per de Grandpré J. dissenting in part: On the reduc­tion by the Court of Appeal in the compensation awarded to the widow there is reason to apply the principle expressed on many occasions by this Court, namely, that a Court of Appeal may not intervene in the assessment of damages except "when the amount awarded is so excessive or so insufficient that it represents a wholly erroneous estimate".

The motion to amend is based on art. 523 of the Code of Civil Procedure. Does this article enable the Court of Appeal to amend the contract of record to the point of

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granting the claimant a larger compensation than that mentioned in the original statement? It does not appear that this Court has ever used its powers under s. 50 of the Supreme Court Act to arrive at such a conclusion. If the conclusions of the action had claimed $53,894.45 for the children rather than $31,000, it is reasonable to conclude that several of the premises of the trial judge that were not supported by evidence might have been subjected to critical examination.

Even if it were possible to allow the amendment, the compensation suggested by the trial judge was errone­ous. The respect merited by the trial judge's calculation does not extend to the part which exceeds the amount claimed, where he did not exercise his power to order a reopening of the hearing, thereby enabling the parties to submit all the facts to the Court. The figure of $31,000 for the four children is realistic. If we add it to the compensation of $51,082 awarded to appellant personal­ly, we get a total which is more than nine times the deceased's annual income, the very highest amount possible.

[Watt v. Smith, [1968] S.C.R. 177; Pantel et al. v. Air Canada, [1975] 1 S.C.R. 472, followed; Frank v. Alpert, [1971] S.C.R. 637, 17 D.L.R. (3d) 491; Basarsky v. Quinlan, [1972] S.C.R. 380, 24 D.L.R. (3d) 720; Ladouceur v. Howarth, [1974] S.C.R. 1111, 41 D.L.R. (3d) 416; Witco Chemical Co. v. Oakville, [1975] 1 S.C.R. 273, 43 D.L.R. (3d) 413; Racicot v. Cartier, [1961] Que. Q.B. 596; City of Quebec v. Labrecque, [1947] Que. Q.B. 411; Conway v. City of Quebec, [1942] Que. Q.B. 366; Workmen's Compensa­tion Commission v. Rheault, [1952] Que. Q.B. 28; Attorney General v. Vallières, [1959] C.S. 140; Lussier v. Marquis, [1960] Que. Q.B. 20, reversed at [1960] S.C.R. 442; Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95, referred to; Burland v. City of Montreal (1903), 33 S.C.R. 373, discussed.

APPEAL from a judgment of the Court of Appeal of Quebec reducing the compensation awarded to appellant personally in the Superior Court and setting aside the motion to amend sub­mitted to the Court of Appeal. Appeal allowed, de Grandpré J. dissenting in part.

G. G. Boudreau, for the appellant.

J. M. Cantin, Q.C., for the respondent Brunelle. B. Gratton, for the respondent Labonté.

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The judgment of Martland, Pigeon, Dickson and Beetz JJ. was delivered by

PIGEON J.—The facts of this case are summa­rized by de Grandpré J. I agree with him except with regard to the damages claimed by plaintiff-appellant for her children. In her action she claimed $21,000 as tutrix of her three minor chil­dren, and $10,000 as curatrix of her unborn child. She became the latter's tutrix when he was born. The trial judge ruled on this part of the claim as follows:

[TRANSLATION] As explained above, the Court considers that the father would have spent an average of $1,000 a year for each of his children until they reached age twenty-four. In this figure of $1,000, the Court includes everything with which a father provides his children-a home, accommodation, food, recreation, education and so on.

In other words, he would have provided each of his children with this amount for the following periods and totals:

 

 

 

These amounts should be reduced by the same per­centage as the amount awarded to plaintiff, namely, ten per cent. Thus each child would be entitled to the following capital sums:

Céline	$10,420.64
Louise	$11,215.99
Jean	$11,539.04
Michel	$12,418.78

Consideration must also be given to the loss of the children's father as a source of counsel, guidance, moral support and affection. The Court concluded that despite the difficulty of assessing this loss in financial terms, it would award $100 a year for each year that the children were in school. Thus it would award $1,800 to Céline, $2,000 to Louise, $2,100 to Jean and $2,400 to Michel, making the grand total for each child as follows:

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In the case of the three oldest children, these amounts must of course be reduced proportionally because the amount claimed was only $21,000. The Court thus arrives at the following figures:

Céline	$6,566.90
Louise	$7,102.67
Jean	$7,330.43

 

In the case of Michel, the full amount claimed—$10,000—applies.

After the inscription in appeal by each of the defendants (respondents in this Court), plaintiff made an incidental appeal in accordance with art. 500 of the Code of Civil Procedure of Quebec:

500. Without prejudice to his right to bring an appeal himself in the manner and within the delay provided by articles 494 and 495, the respondent may make an incidental appeal, without formality other than a simple declaration, served on the adverse party and filed at the same time as his written appearance, that he will demand the reversal, in his favour, of the judgment appealed from. Such declaration must set out the con­clusions sought.

In the declaration made in accordance with these provisions, plaintiff asked that she be alllowed to amend her statement of claim to increase the amount claimed for her children to a total of $53,894.45 instead of $31,000, in order that the Court award them the full amount of damages that the trial judge estimated they had suffered as a result of their father's death. The motion to amend was made in accordance with art. 523 of the Code of Civil Procedure, the first paragraph of which reads as follows:

523. The Court of Appeal may, if the ends of justice so require, permit a party to amend his written proceedings, to implead a person whose presence is necessary, or even, in exceptional circumstances, to adduce, in such manner as it directs, indispensable new evidence.

The amendment was refused solely for the reason stated as follows by Lajoie J.A.:

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[TRANSLATION] This motion to amend, which was made for the first time in the Court of Appeal, should be dismissed. If it was allowed, the claim, subsequent to the judgment of the Superior Court, would be higher than at first instance and beyond what the trial judge could adjudicate, C.C.P. Art. 468.

In my opinion, the Court of Appeal by deciding in this manner, did not exercise its discretion, but rather refused to exercise it. In all cases where a motion to amend is made for the first time in the Court of Appeal, the object is necessarily to obtain something that the Superior Court could not grant, since the latter cannot adjudicate beyond what is claimed and alleged. Thus, if we accept the reasoning of the Court of Appeal, the provision of the Code of Civil Procedure, 1965 which expressly authorizes the amendment of written proceedings at the appeal level becomes meaningless. The text cannot be referring to cases in which a motion to amend was presented and denied in the Superior Court, because in such cases the provision would not be necessary, since the Court of Appeal already had the power to revise interlocutory judg­ments. In addition, there is no doubt that the article was enacted precisely to make it possible to amend the pleadings at the appeal level. In their report, the Commissioners said:

This same article 523 grants, moreover, to the Court of Appeal, in a general way, powers similar to those possessed by the Supreme Court, which is only proper, as the judges of the Supreme Court have themselves pointed out.

De Grandpré J. has reviewed the decisions of this Court that have allowed amendments. In those cases it was definitely assumed that the power to authorize amendments included those requested for the first time in this Court. The text in ques­tion, now s. 50 of the Supreme Court Act, reads as follows:

50. (1) At any time during the pendency of an appeal before the Court, the Court may, upon the application of any of the parties, or without any such application, make all such amendments as are necessary for the purpose of determining the appeal, or the real question or controversy between the parties as disclosed by the pleadings, evidence or proceedings.

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(2) An amendment referred to in subsection (1) may be made, whether the necessity for it is or is not occasioned by the defect, error, act, default or neglect of the party applying to amend.

Article 523 of the Code of Civil Procedure, 1965 is part of a reform the general intention of which is expressed as follows in art. 2.

2. The rules of procedure in this Code are intended to render effective the substantive law and to ensure that it is carried out; and failing a provision to the contrary, failure to observe the rules which are not of public order can only affect a proceeding if the defect has not been remedied when it was possible to do so. The provisions of this Code must be interpreted the one by the other, and, so far as possible, in such a way as to facilitate rather than to delay or to end prematurely the normal advancement of cases.

The Commissioners said on this article:

This text sets forth expressly the manner in which the rules of the new Code are to be applied and interpreted. This provision, which is in conformity with the spirit of the reform, will assist, in the opinion of the Commissioners, in giving to procedure the new orientation which is desired.

In my opinion, to deny a motion to amend made in appeal, on the grounds that by admitting it the Court would be allowing something that the Supe­rior Court could not allow, is entirely contrary to the legislator's intention in enacting the new Code. The article that prohibits the Court from adjudicating beyond the conclusions is not new. When there was no provision for amendment while a case was before the Court of Appeal, the latter was clearly bound by the old rule. The only remedy for the litigant in a case where an amendment was necessary for justice to be done was to bring the case all the way to this Court where, through a singular legal anomaly, he could hope to obtain what the Court of Appeal did not have power to grant him. Such was the situation that the legislature sought to correct by enacting the new Code in accordance with a recommendation to this effect by the Commissioners.

In my opinion, it is important to intervene to ensure compliance with the intention of the

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Quebec legislator to repeal the old maxim that "form takes precedence over substance". To cite only recent decisions, the rejection of unjust for­malism was the reason for this Court's intervention on questions of procedure in: Frank v. Alpert[1], Basarsky v. Quinlan[2], Ladouceur v. Howarth[3], Witco Chemical Co. v. Oakville[4]. When a decision on a question of form results in a litigant losing his rights, it ceases to be a question of form and becomes a question of law. It is a question of form only as long as a remedy is possible, not when a right is lost. For this reason, in the case at bar, the point cannot be treated as a mere question of procedure.

The decision of the Court of Appeal deprives four orphans of a substantial portion—more than $22,000—of the compensation to which, in the judgment of the Superior Court, they were entitled on account of their father's death. The principle governing amendments in this Court, which the authors of the new Quebec Code of Civil Proce­dure took as their guide, is that it is immaterial that the necessity for the amendment was "occa­sioned by the defect, error, act, default, or neglect of the party applying to amend": the Court may nevertheless allow it in order to "determine the real question" between the parties.

There is another important difference between the provisions of the former Code of Civil Proce­dure and those of the Supreme Court Act, on which the new Code is based. The latter never contained any restriction, and consequently this Court did not hesitate to use them to change the nature of the demand, as in Burland v. The City of Montreal[5]. Under art. 522 of the former Code of Civil Procedure, any amendment to change the nature of the demand was expressly prohibited, and this provision was interpreted with the utmost rigor. Even in 1961 the Court of Appeal, citing several earlier decisions, held in Racicot v. Cartier[6], that no amendment could be allowed in

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order to allege that a motor car accident had been caused by the owner's agent and not by the owner driving himself, on the ground that this was "to change the nature of the demand". In 1947, in City of Quebec v. Labrecque[7], the Court of Appeal affirmed a judgment refusing on this ground an amendment claiming the cancellation of an entire sale agreement instead of one clause only.

For a long time, several Quebec judges denied any amendment to increase the amount claimed, and held that an incidental demand was required. Such was the decision of the Court of Appeal in Conway v. City of Quebec[8]. Despite the decision to the contrary in Workmen's Compensation Com­mission v. Rheault[9], there were still many judges opposed to any amendment for this purpose, as may be seen in Attorney General v. Vallières[10]. An important consequence of this attitude was that those judges who denied an amendment and insisted on an incidental demand, also regarded the latter as a fresh issue, so that in their opinion the short prescription period was applicable to the claim in excess of the amount claimed by the original action. The Court of Appeal's judgment dismissing on that view an incidental demand in Lussier v. Marquis[11], prompted an intervention by the Legislature (1959-60 (Que.), c. 98, s. 4). It later turned out that this was mere surplusage, because the decision was reversed unanimously in this Court (Marquis v. Lussier [12]).

It is only by the new Code that the prohibition of amendments changing the nature of the demand was repealed, art. 203 reading as follows:

203. No amendment may be made which would be useless or contrary to the ends of justice, or which would result in an entirely new demand having no connection with the original demand.

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The Commissioner's Report makes the following comment:

The present restrictions to the right to amend have been abolished, and a single limit has been set out: no amendment will be allowed which will be useless or contrary to the interests of justice, or which would give rise to an entirely new demand having no connection with the original demand (Art. 203). The Commissioners are of the opinion that once the parties are before the Court, they should be permitted, if necessary, to amend their proceedings in such a way as to set forth the whole of the true dispute that divides them. This is a principle admitted by most of the modern systems of law; and moreover, it is undeniable that the rule of Article 522 C.P., as interpreted by the Courts, introduces an obsolete and undesirable formalism.

In my opinion, when all the provisions of the new Code of Civil Procedure regarding amend­ments are read together, it becomes clear that the legislator's real intention was, as the Commissioners suggested, that in appeal as at trial, all amend­ments needed in order to rule on the dispute objectively should be allowed; in other words, that procedure be the servant of justice not its mistress. It is true that this is a discretionary power, but it must not be overlooked that this is a judicial discretion. Consequently, the Court is under a duty to exercise it and it is in effect to refuse to exercise it than to do so on grounds unfounded in law (Smith & Rhuland Ltd. v. The Queen[13]). Moreover, even under the former Code of Civil Proce­dure, it was well established that necessary amend­ments were not to be denied without good reasons.

Can a valid reason be found for denying the amendment in the case at bar? Respondents did not suggest any. They relied only on the reason given by the Court of Appeal. If the trial judge, rather than delivering the judgment when he did, had ordered the reopening of the hearing, as art. 463 of the Code of Civil Procedure allows him to do "even of his own motion", would defendants have had any valid ground of objection to the amendment? I do not think so. If they had contended that, against the higher claim they could have introduced evidence that they did not offer,

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they would have had to say what this evidence was and why they had not introduced it. They would have had great difficulty in doing so. Moreover, the facts to be taken into account in determining the damages payable to the children are, apart from their age, essentially the same as those to be considered in determining the damages payable to appellant personally. This part of the claim was not admitted in full and was contested in all courts. There is no reason to believe that, if in the pleadings plaintiff had also claimed a higher amount for her children, the defendants would have introduced evidence that they have refrained from introducing. In any case, if they wished to raise this argument, they should have done so before the Court of Appeal and in this Court. This they failed to do. It must be presumed that it was because they had no sound basis for any such argument.

For those reasons, I conclude that the Court of Appeal erred in dismissing the motion to amend, that it should have granted it and that this is a proper case for ordering that the amendment be deemed to be made without further formality and without costs. If the amendment is allowed, I think the amount of damages assessed by the trial judge for each child should be allowed and the amount of the damages awarded to appellant personally should be restored for the same reasons.

Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court against the respondents jointly and severally but vary it by allowing the claim to be amended so that the amount thereof and the judgment be increased to the total sum of $104,976.45 being $51,082.00 for the plaintiff personally, and $53,894.45 in her capacity as tutrix of her four children consisting of $12,220.64 for Céline; $13,215.99 for Louise; $13,669.04 for Jean and $14,818.78 for Michel; the whole with interest from the date of service of the writ and costs throughout.

DE GRANDPRÉ J. (dissenting):—As the result of a car accident in which Fernand Labonté was killed, his widow and children brought an action

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against the two respondents, whom the Quebec courts found to be jointly and severally liable. This finding has been accepted and the only matter before this Court is the amount of damages payable to the claimants.

The Superior Court made the following findings in this regard:

$51,082 to the plaintiff personally;

$31,000 to the plaintiff as the representative of her children.

The trial judge added that if a larger amount had been claimed for the children, he would have awarded them a total of $53,894.45.

The three parties took the case to the Quebec Court of Appeal. If we leave aside the matter of liability, the following conclusions were sought:

(a) the persons responsible for the accident, respond­ents in this Court, sought a reduction in the amount of damages awarded to the widow and her children;

(b) the claimants, appellants in this Court, sought to have the judgment of the lower Court modified on two points:

(i) the addition of $15,000, as representing the loss incurred by the estate because of what was essen­tially a forced sale of the farm, as a result of Fernand Labonté's death;

(ii) by increasing to $53,894.45 the compensation payable to the children; to this end a motion to amend was submitted to the Court of Appeal under the terms of art. 523 of the Code of Civil Procedure.

In a majority decision, the Court of Appeal reduced the compensation payable to the widow from $51,082 to $35,000, and unanimously refused to reduce the compensation payable to the chil­dren. It also unanimously dismissed the motion requesting leave to amend the proceedings, so that the $53,894.45 mentioned by the trial judge could be recovered.

The widow and her children are the only appel­lants in this Court. They submit that the Court of Appeal erred on three grounds:

(1) by reducing the compensation payable to the widow;

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(2) by not awarding the $15,000 for the loss allegedly resulting from the forced sale of the farm;

(3) by refusing the motion to amend submitted under the terms of art. 523. C.C.P.

I agree with appellant on the first point. The principle that must be followed in the case at bar has been expressed on many occasions, in particu­lar in Watt v. Smith[14], in which, as in the case at bar, the Court of Appeal had substituted its assessment for that made by the lower Court. Pigeon J., speaking for the whole Court, commented as follows at p. 181:

[TRANSLATION] In view of these judgments, should this Court make another assessment in order to determine whether or not they are correct? I do not think so. In my opinion, this Court must consider whether the Court of Appeal applied the principle that an appellate tribunal is required to follow in such cases. That principle is not to determine whether, had it been in the place of the lower court, it would have awarded the same amount; this is essentially the same as considering whether the amount awarded exceeded that justly owing. What it has to determine is whether the amount awarded is so excessive or so insufficient that it represents a wholly erroneous estimate.

It is true that the trial judge's calculations are not entirely consistent with the rules that the courts must follow in determining compensation claimed under art. 1056 of the Civil Code. However, in order to rule on the appeal with regard to the compensation due the widow it is not necessary to go into the relevant rules in detail, particularly since some of them will be considered below with reference to the compensation due the children. Nevertheless, though I am unwilling to accept completely the reasoning that led the trial judge to a finding that plaintiff is personally entitled to compensation of $51,082, I am not convinced that this finding was so erroneous that it required intervention by the Court of Appeal.

The second point, namely the loss that the estate allegedly sustained as a result of the forced sale of the farm, was withdrawn by appellant when the Court pointed out to her that, just as the assets of

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the estate must not be taken into account in determining the compensation claimed under art. 1056 C.C., similarly the loss that the estate may sustain as a result of the death cannot constitute a head of damages. (See Pantel et al v. Air Canada[15]).

We come then to appellant's last ground. The first paragraph of art. 523 of the Code of Civil Procedure reads as follows:

The Court of Appeal may, if the ends of justice so require, permit a party to amend his written proceedings, to implead a person whose presence is necessary, or even, in exceptional circumstances, to adduce, in such manner as it directs, indispensable new evidence.

In their report, the Commissioners make the following observation:

This same article 523 grants, moreover, to the Court of Appeal, in a general way, powers similar to those pos­sessed by the Supreme Court, which is only proper, as the judges of the Supreme Court have themselves pointed out.

This leads me to quote the relevant subsection of s. 50 of the Supreme Court Act:

(1) At any time during the pendency of an appeal before the Court, the Court may, upon the application of any of the parties, or without any such application, make all such amendments as are necessary for the purpose of determining the appeal, or the real question or controversy between the parties as disclosed by the pleadings, evidence or proceedings.

When read in its context, does art. 523 of the Code enable the Court of Appeal to amend the contract of record to the point of granting the claimant a larger compensation than that men­tioned in the original statement? The parties did not cite any authority on the point and it does not appear that this Court has ever used its powers under s. 50 to arrive at such a conclusion.

By way of example, I should mention that this Court has used s. 50 in order to:

—enter the names of all the parties concerned in the proceedings in order to dispose of the litiga­tion—City of Montreal v. Hogan, 31 S.C.R. 1;

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—correct a clerical error—Hill v. Hill, 34 S.C.R. 13;

—treat as duly constituted a continuance of suit that could contain a formal defect—The North Shore Power Company v. Duguay et uxor, 37 S.C.R. 624;

—enable appellant to raise a new point of law based on errors allegedly made by the trial judge in his charge to the jury during a civil liability proceeding—Landreville v. Brown, May 27, 1941, record No. 6886;

—deliver an order allowing errors in the translation of shorthand notes to be corrected—McArter v. Hill, June 20, 1951, record No. 7756, to which reference is made in the final judgment reported at [1952] 2 S.C.R. 154;

—add other conclusions to those mentioned by appellant in his notice of appeal—Levy v. Manley, judgment of April 24, 1974 in record No. 12,912 (reported at [1975] 2 S.C.R. 70).

On the other hand, a motion to amend was dismissed in a delictual action against the Crown. The purpose of the motion was to allege fault by a public servant, whose conduct had not been men­tioned in the original action—Gootson v. The King, judgment of April 27, 1948 in record No. 7387. According to the transcript, the Court held that "the amendment would introduce allegations setting up a new cause of action" (M.B. No. 10, p. 78). Similarly, leave to amend—the purpose of which was reference to new texts of Quebec Acts—was refused in a case that was brought before the Ontario Courts—Upper Ottawa Improvement Co. et al v. The Hydro-Electric Power Commission of Ontario, judgment of June 13, 1960 in record No. 9102, which is referred to in the final judgment reported in [1961] S.C.R. 486.

The furthest this Court has gone with regard to amendments was in Burland v. The City of Montreal[16]. The facts are summarized in the headnote as follows:

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The plaintiff brought his action to recover the value of a strip of land of which the defendant was illegally in possession. The courts below dismissed the action on the ground that the proper remedy was by action en bornage or au pétitoire. In order to cease litigation, the Supreme Court of Canada reversed the judgments of the courts below, directed that the record should be remitted to the trial court for the purpose of ascertaining the extent of the property affected by the trespass and ordered the restoration thereof to the plaintiff.

Taschereau C.J. gave the reasons for judgment at p. 374:

The judgments of the Superior Court and of the Court of Appeal concede that the respondent is, in fact, in possession illegally of a strip of the appellant's property, but they dismissed the action on the ground that the appellant's remedy is by an action en bornage or au pétitoire.

I would think that the controversy between the parties, as it appears upon the record, ought to be determined in the present case so as to avert any further litigation in the matter.

What is now the real controversy between the parties? (see sec. 63 of the Supreme Court Act) Nothing else than a controversy as to the extent of appellant's land which the respondent's contractors took possession of when they built, in 1892, a permanent sidewalk in front of it.

His conclusions are on the following page:

At the trial, one of the witnesses put it at 473 feet and another one at 271 feet. So that, under the circum­stances, the record should be remitted back to the Superior Court for the purpose of ascertaining, by exp­ertise or otherwise, as the court thinks proper, what is the extent of the appellant's property which is covered by the said sidewalk, and ordering that the respondent should, within the delay fixed by the court, restore the said property to the appellant in exactly the same state as it was when the said sidewalk was constructed, all the necessary amendments of the pleadings being treated as having been made.

Read in the light of later decisions, this decision does not in my opinion warrant the conclusion that the motion to amend in the case at bar is justified. If the amendment had been refused in Burland, another action would have been necessary so that plaintiff would not be deprived of all his remedies. To avoid another proceeding, this Court decided to

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make the amendments necessary in order to resolve the real controversy between the parties, despite the fact that the nature of the action could be changed thereby. The record was remitted to the Superior Court so that the evidence could be completed.

In the case at bar, refusing the amendment would not deprive the plaintiff of all her remedies. The real controversy between the parties is the amount of compensation, and plaintiff, with full knowledge of the facts, simply chose to assess her damages with respect to her children at $31,000, which I consider a very realistic figure (as I shall attempt to show later). Would the parties, particu­larly the defendants, have submitted the same evidence if the conclusions of the action had claimed $53,894.45 for the children? Though unanswered, this question convinces me that the Court of Appeal was correct in not allowing the motion to amend.

Essentially, the evidence of the facts relating to the damages is found in plaintiff's testimony only. Alain Mayer, an agronomist, was also called on behalf of the plaintiff, but his testimony, and an accompanying document entitled [TRANSLATION] "Report on farming operations", throw no light on the question of the compensation due the children. In this regard plaintiff herself, apart from her general statement that the deceased was a good father, was in good health and had a declared income of approximately $9,000 a year, could add only one thing, namely that she and her husband intended to provide their children with [TRANSLA­TION] "as much education as possible and neces­sary, in accordance with their wishes". With this in mind, the parents had enrolled their children in a university bursary program. On another matter, plaintiff added that she did not have a budget for household expenses and she provided no informa­tion regarding the family's expenses.

She concluded her testimony at the examination on discovery by the following exchange with her counsel:

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[TRANSLATION] Q. And you are also claiming twenty-one thousand dollars ($21,000) for the three children who were born before your husband died?

A. Yes.

Q, And you are claiming ten thousand dollars ($10,000) for the child that had been conceived but was born after your husband's death?

A. Yes.

At the trial, at the end of her testimony in chief, she reaffirmed her position:

[TRANSLATION] Q. For your three children you are claiming twenty-one thousands dollars ($21,000)?

A. Yes.

Q. And for Michel, who had been conceived but was not born at that time?

A. I am claiming more for him, because he never had the opportunity to know his father and to benefit from his affection, and I think this is something that he may feel the effects of throughout his life. That is why I am claiming more for him.

It is not surprising that in view of this evidence, which is in every respect consistent with the allega­tions of the action, defendants did not introduce any evidence whatever regarding the damages sus­tained by the children. If the claim under this heading had been $53,894.45 rather than $31,000, it is reasonable to conclude that several of the premises of the trial judge that were not supported by evidence might have been subjected to critical examination. While not claiming to be an exhaus­tive list of all the possibilities (such a list would be useful only if based on a comprehensive examina­tion of the record, supplemented by research in various fields), in my opinion the following points might have been examined in detail:

(a) in a family composed of a father, a mother and four children, what portion of the gross income of $9,000 is used for the children at each stage of their lives?

(b) what are the probabilities of each child continuing his education, and to what age?

(c) in view of the social and economic context, what are the probabilities that the children, even

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if still in school, would still need their parents' financial assistance at ages 18, 20 and 22?

(d) what are the probabilities that an unforeseen calamity would befall the father or one of the children during the period considered by the trial judge?

(e) what was a reasonable return on capital on the financial market when the judgment of the lower Court was delivered?

Once again, the foregoing questions cover only part of the subject. Other areas could have been examined; for example, an actuary was not called. In the circumstances on the record, the Court of Appeal was correct in not granting the motion to amend.

Moreover, even if it were possible in principle to allow the motion, I agree with Lajoie J.A.'s obser­vation that the compensation suggested by the trial judge would have been [TRANSLATION] "wholly erroneous". I have already cited the decision of this Court in Watt v. Smith. In my opinion, the respect merited by the trial judge's calculation does not extend to the part which exceeds the amount claimed, where, as in the case at bar, he did not exercise his power to order a reopening of the hearing, thereby enabling the parties to submit all the facts to the Court. Moreover, the principle in Watt is tempered by another which has long been recognized by the courts, and was expressed as follows by Spence J. in Gorman v. Hertz Drive Yourself[17], at p. 18:

To summarize the jurisprudence established by this Court, this Court will not vary damages adjudged by the court of appeal in a province which had varied those assessed by the trial judge 'except in the most exceptional circumstances', and it would further appear that the so-called exceptional circumstances are those where this Court is of the opinion that the court of appeal had committed an error in principle.

In my opinion, Lajoie J.A.'s observation regard­ing compensation for the children is even more important in view of the fact that the trial judge's errors affected his calculations. His starting point was a net annual income of $9,000, which I have accepted for the purposes of my analysis. On that

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basis, the trial judge put forward four propositions that have no basis in the evidence, namely that:

(1) the $9,000 must be divided as follows:

father     $2,700

mother   $2,300

children (4) $4,000

(2) each child was entitled to an average of $1,000 until completion of his university educa­tion, at age 24:

(3) the capital needed to provide the children with the financial assistance for this period must be determined on the basis of a five per cent return;

(4) this capital must be reduced by ten per cent in order to cover unforeseen events.

I shall not comment on the first two propositions though there is much that might be said about them. In my opinion, this rigid mathematical approach does not reflect reality, which is much more uncertain. For example, this approach makes no provision for earnings from student employment, the trend toward free education, and the accessibility of grants. In addition, the proportion of the family's income allotted to the children was definitely too high. However, I shall simply com­ment on the errors contained in the last two propositions:

(a) as the Court of Appeal rightly pointed out, an interest rate of five per cent at the time of the trial, namely December 1970, was not at all realistic. We need only mention that on Decem­ber 15, 1971, less than six weeks after the judgment of the Superior Court was delivered, Order in Council No. 4302, passed under the terms of the Revenue Department Act, set the legal interest rate at eight per cent. At the time of the trial and judgment, the interest rate was six per cent;

(b) with respect to unforeseen events, it is not necessary to determine in a case of this sort whether they should be set at thirty, forty or fifty per cent. However, in my view it is well established that thirty per cent is a strict minimum.

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With regard to financial assistance, the trial judge

(a) using an interest rate of five per cent, cal­culated $50,771.59 for the four children; had he used an interest rate of six per cent, the total would have been reduced by one-fifth-to $40,617.27.

(b) in order to take into account the unforeseen events of all types involving the father and each of the four children, this total should have been reduced at the very least by thirty per cent, to give a figure of $28,432.09.

This figure of $28,432.09 for financial assistance would have been increased by the very substantial amount of $8,300 for moral support, thus giving a grand total of $36,732.09. If all the factors to which I referred are taken into account, including the questions raised by the first two propositions of the trial judge, this total is a maximum. I have no hesitation in concluding that the figure of $31,000 claimed in the action for the four children is realistic.

Another way of examining the validity of this conclusion is to add the compensation awarded to plaintiff personally, namely $51,082, to that which I would award to the children, namely $31,000, giving a total of $82,082. This figure is more than nine times the deceased's annual income. In Watt, Pigeon J., speaking for the whole Court, stated at p. 181:

[TRANSLATION] This is approximately nine times the deceased's annual income. If it can be assumed that half of a father's annual income is likely to be used to support his wife and children because his salary can be attached for this purpose to that extent (C.C.P. art. 553, last paragraph), can it be said that by awarding an amount approximately eighteen times this fraction of the deceased's annual income as compensation for his death, the Superior Court awarded an amount so exces­sive that it must be regarded as a wholly erroneous estimate of the damage? Although this amount is clearly the very highest justifiable, I do not think that it can be said to be an obviously excessive amount.

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In awarding more than $82,000 in the case at bar, the courts have approved the very highest amount possible. Therefore, I find that the Court of Appeal's conclusion with regard to the compen­sation due the children is entirely consistent with the applicable legal principles.

For all these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court against the respondents jointly and severally, the whole with costs in all courts.

Appeal allowed with costs, DE GRANDPRÉ J. dissenting in part.

Solicitor for the appelant: Gérard G. Boudreau, Sherbrooke.

Solicitors for the respondent, Brunelle: Gagnon, de Billy, Cantin, Dionne & Martin, Québec.

Solicitors for the respondent, Labonté: Allaire, L'Heureux, Gratton & Blain, Montréal.