Cour Suprême du Canada
Ratté v. Provencher, [1964] S.C.R. 606
Date:
1964-06-29
Dame Therese Ratté (Plaintiff)
Appellant;
and
Théodore Provencher (Defendant) Respondent.
1964: February 27, 28; 1964 : June 29.
Present: Taschereau C.J. and Cartwright,
Fauteux, Abbott and Spence JJ.
ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE,
PROVINCE OF QUEBEC.
Motor vehicle—Collision—Credibility of witnesses—Expert
evidence—Burden of proof—Preponderance of evidence—Finding of trial judge
reversed by Court of Appeal.
As a result of the death of her husband in an accident
involving his automobile and a truck driven by the defendant, the plaintiff was
awarded damages by the trial judge. The only eyewitness to the accident was the
defendant, and his account of what happened was vague and confused. Having
refused to accept the defendant's evidence, the trial judge relied upon
inferences drawn from the circumstances and upon theories advanced by two
expert witnesses. The Court of Appeal held that the plaintiff had not satisfied
the burden of proof which was hers and consequently set aside the judgment. The
plaintiff appealed to this Court.
Held (Fauteux and Abbott JJ. dissenting): The appeal
should be allowed and the judgment at trial restored.
Per Taschereau C.J. and Cartwright and Spence JJ.: The
duty of the Appeal Court was to consider whether the trial judge, who had the
advantage of hearing and seeing the witnesses, had come to a conclusion which
could not have been reached by a reasonable man. In civil proceedings, the
party who has the burden of proof is not called upon to establish his
allegations so rigorously as to leave no room for doubt. It is sufficient if he
has produced such a preponderance of evidence as to show that the conclusion he
sought to establish was the most probable of the possible views of the facts.
In this case, the trial judge who had the advantage of hearing and seeing the
witnesses and who carefully considered all the evidence, including the direct
evidence of the defendant, the evidence as to the circumstances, and the
opinion of the experts, had weighed the probabilities and had come to a
conclusion which was a reasonable one.
Per Fauteux and Abbott JJ., dissenting: Where a
judgment upon facts has been rendered by a Court of first instance, and a first
Court of Appeal has reversed that judgment, a second Court of Appeal should
interfere with the judgment on the first appeal only if clearly satisfied that
it was erroneous. This the appellant has failed to do.
APPEAL from a judgment of the Court of Queen's Bench,
Appeal Side, Province of Quebec,
reversing a judg-
[Page 607]
ment of Lizotte J. Appeal allowed, Fauteux and Abbott JJ,
dissenting.
Perrault Casgrain, Q.C., for the plaintiff,
appellant.
Jacques de Billy, Q.C., for the defendant,
respondent.
The judgment of Taschereau C.J. and Cartwright and Spence
JJ. was delivered by
Spence J.:—In
this case two actions were tried together; the action of Provencher v.
Lavoie and the present action. Lizotte J. gave reasons in very considerable
detail in the Provencher v. Lavoie action. In that action, Provencher as
plaintiff had the onus and Lizotte J. said in the course of his judgment:
D'ailleurs, dans la présente cause, le poids de la preuve était à la charge
du demandeur, qui n'a certainement pas supporté son fardeau.
Lizotte J. then then turned to give judgment in the action
of Ratte v. Provencher, the subject of this appeal.
The largest part of his brief reasons therein are concerned with the quantum of
damages but the learned trial judge did say:
Pour les raisons données et les motifs exprimés
par le jugement dans la cause 18,503 C.S.R. Théodore Provencher vs Les Héritiers collectivement de feu
Blaise Lavoie, la Cour en vient à la conclusion que le défendeur est
responsable des dommages éprouvés par la demanderesse.
Then, lest it be thought that the learned trial judge
had failed to note that the onus had shifted in this action to the present
appellant, he continued:
Il est vrai qu'ici le poids de la preuve est déplacé,
mais la Cour est convaincue que la preuve faite est amplement suffisante pour
tenir le défendeur responsable.
Thereby demonstrating that in the paragraph first
quoted the learned trial judge had relied on Provencher's failure to discharge
the onus in the action in which he was plaintiff as only one of the reasons for
dismissing the action and that he was of the opinion that the appellant, here Ratté,
in her action, had discharged this burden.
[Page 608]
There had been only one eye-witness to the accident which
caused the death of the late Lavoie, the defendant Provencher. The learned
trial judge, after carefully reviewing the latter's evidence and quoting from
it extensively, came to the conclusion that he could accept it only in so far
as it established Provencher's nervousness, vagueness of memory and inability
to explain. The learned trial judge was of the opinion that at a critical time
in the accident,
A ce moment, il avait perdu le contrôle
de sa voiture et même semble-t-il le contrôle de son esprit.
a definite finding of an act of negligence on
Provencher's part. In so proceeding, the learned trial judge was taking
advantage of the opportunity to hear and consider the witnesses and decide on
the credibility of their evidence.
The learned trial judge then turned to the two remaining
parts of the evidence, i.e., the testimony of witnesses as to their
investigations on the scene and the area surrounding it as well as the
vehicles, and secondly, evidence given by the experts, Dr. Gravel and Mr. Royer, for the plaintiff and the defendant, respectively.
The judgment of the Court of Queen's Bench (Appeal Side) appears to proceed on the basis
that neither of these witnesses having given evidence from their own
observation but merely from what they had learned, and their evidence
concerning inferences from such facts and the theories they developed from
them, the Court in Appeal was as well qualified to decide whether it would
accept such theories as was the learned trial judge. The effect of the two
written judgments in the Court of Queen's Bench (Appeal Side) would seem to be
summarized in the statement of Montgomery J.:
The burden of proof was upon Respondent, and while it may
well be that the learned trial judge was correct in dismissing Appellant's
action, where the burden of proof was upon him, I am of the opinion that
Respondent's action should have been dismissed for lack of sufficient proof
that some fault of Appellant caused Lavoie's automobile to strike the guard
rail.
I have come to the conclusion that the judgment of the Court
of Appeal of Queen's Bench is in error for these reasons:
Firstly, the learned trial judge heard much evidence of the
facts in addition to the expert testimony, weighed it
[Page 609]
and assessed both its credibility and its probative value.
Some of the facts, the learned trial judge regarded as most important; for
example, the evidence of the various witnesses as to Provencher's speed when
passing through the Village of Ste. Angele. It should be
noted they not only gave evidence as to Provencher's speed but also that they
noticed no automobile resembling that driven by the late Lavoie following
Provencher shortly behind him. Therefore, in all probability, and that is
sufficient at any rate in a civil action, Lavoie's vehicle was in front of
Provencher's and could not have been attempting to pass Provencher's at the
time of the accident. Again, the learned trial judge was called upon to
consider the evidence of Constable Levesque as given at the trial in reference
to the tire marks crossing the centre line of the road, south of the scene of
the impact, and to contrast it with the constable's different evidence at the
coroner's inquest. Indeed, the evidence of the defendant Provencher given at
trial also differed from his evidence at the coroner's inquest. Much of the
evidence at trial as to circumstances was such that it could only be
appreciated and assessed properly by the trial judge who heard it and his
finding thereon should not be interfered with.
It is most significant to me that the learned trial judge
first cited and analyzed this evidence as to circumstances in his reasons, only
then turned to the consideration of the evidence given by the expert witnesses
and concluded that the theory of Dr. Gravel coincided exactly with his own view
as to what occurred. I am of the opinion that the learned trial judge would
have arrived at the same conclusion if he had not had the advantage of Dr.
Gravel's evidence.
Secondly, one of the expert witnesses, Dr. Gravel, whose
theories were accepted by the learned trial judge, had made five different
inspections of the scene of the accident. The first of these was on the 14th or
15th of October 1955, only about two weeks after the accident, when he had the
opportunity to personally observe many of the signs of the accident at the site
and to inspect both vehicles at a nearby garage. Dr. Gravel was therefore in a
position to give evidence upon what he actually had seen himself and to use
[Page 610]
his accurate first-hand knowledge of these observations to
evolve his theory. Mr. Royer, the expert witness called by
the defendant, on the other hand, went to the bridge site but he could not say
when and the learned trial judge found:
Sur ce pont, on lui a dit qu'il était arrivé
un accident, mais il n'a vérifié aucun vestige, aucune trace, n'a pas préparé
de plan, ni pris de mesures, contrairement à ce qu'a fait le docteur Gravel.
It would appear that Mr. Royer never
inspected the vehicles. Under these circumstances, it is not surprising that
the learned trial judge preferred to accept the evidence of Dr. Gravel whose
testimony he described in these words:
La cour doit admettre qu'elle a été vivement
impressionnée par le témoignage de cet expert qui n'affirme que ce qu'il peut
jurer, qui est bien prudent dans ses réponses, qui semble ne montrer aucun zèle,
qui possède certainement une belle intelligence et exprime son opinion que sur
ce qu'il a pu constater lui-même en examinant les traces, les vestiges, etc.
As an illustration of the much more convincing character of
the evidence of Dr. Gravel, there may be considered the critical issue of
whether Provencher overtook the late Lavoie from the rear and in a delayed
attempt to avoid his vehicle by turning out and passing it to the left struck
the left rear corner of that vehicle or, whether on the other hand, the late
Lavoie overtook and passed Provencher's truck, and in passing him or turning in
to the right thereby clipped the left front corner of the Provencher truck with
the right rear fender or bumper of his own vehicle. Upon that issue, Dr. Gravel
gave evidence after inspecting both vehicles and determining in his opinion
that the impact on the left rear corner of the Plymouth, the late Lavoie's
automobile, was a heavy one. On either the theory advanced by Dr. Gravel or
that advanced by Mr. Royer there had been no other heavy
impact directly on the rear left corner of the Lavoie vehicle. Mr.
Royer, on the other hand, merely from an inspection of the photograph,
exhibit D-2, gave as his opinion that the impact on the left rear corner of the
Lavoie automobile was too light to have driven it into the bridge pillar.
Again, Mr. Royer refused to accept Dr. Gravel's theory
that the impression of the front of the Provencher truck on the right side of
the Lavoie automobile
[Page 611]
was made when the latter swung in an arc to the left after
its right front corner had been driven into the pillar by the impact of the
truck upon its left rear corner. Mr. Royer was of the
opinion that if the impact had been in that fashion the Provencher truck would
have continued past the Lavoie automobile on its left and never had an
opportunity to mark the right side of the vehicle. It would seem highly
unlikely that the Provencher truck could possibly have squeezed past the left
side of the Lavoie car on that bridge in the fraction of a second available
after the car was driven forward into the pillar and before it pivoted to the
left in the direct path of the truck.
These illustrations I have cited, and they may be
multiplied, to demonstrate that the learned trial judge had a perfectly sound
basis for accepting the explanation of Dr. Gravel. Indeed when, as he stated,
the learned trial judge had, apart from Dr. Gravel's opinion, come to the same
conclusion such considerations must have influenced him.
It is true that the evidence adduced by the appellant was
far from complete and irrefutable. As I have noted above, Montgomery J. in the
Court of Queen's Bench (Appeal Side) found it did not discharge the onus on the
plaintiff.
Hyde J., in the same court, said:
Much in the reconstruction by Dr. Gravel may be sound but it
does not satisfy me on the vital question in this case. I feel in no way bound
to accept it because the Court below did.
In my view, with respect, the learned judges of the Court of
Queen's Bench (Appeal Side) applied to the proof a standard beyond that
required in a civil action. That standard would seem to be exactly the same in
civil actions in Quebec as it is in common law jurisdictions and was put simply
and clearly by Duff J., as he then was, in Clark v. The King:
Broadly speaking, in civil proceedings the burden of proof
being upon a party to establish a given allegation of fact, the party on whom
the burden lies is not called upon to establish his allegation in a fashion so
rigorous as to leave no room for doubt in the mind of the tribunal with whom
the decision rests. It is, generally speaking, sufficient if he has produced
such a preponderance of evidence as to shew that the conclusion
[Page 612]
he seeks to establish is substantially the most probable of
the possible views of the facts.
In Rousseau v. Bennett,
the present Chief Justice of this Court, said at p. 92:
Mais la preuve peut établir des présomptions
de faits et l'article 1242 du Code
Civil nous dit comment elles doivent être appréciées. Cet article se lit
ainsi:—
«Les présomptions qui ne sont pas établies par
la loi sont abandonnées à la discrétion et au jugement du tribunal.»
Ce que la loi a voulu c'est que ces présomptions
soient laissées à la discrétion du juge qui voit et entend les témoins, et pour
qu'une Cour d'Appel intervienne dans l'exercice de cette discrétion, il faut nécessairement
trouver une erreur de la part du juge au procès, erreur qu'on ne trouve pas
dans le cas présent.
L'honorable Juge de première instance a jugé
suivant la balance des probabilités, ce qui est la preuve requise en matière
civile, et je crois que le jugement de la Cour d'Appel est erroné en droit
quand cette dernière conclut qu'il n'y a pas de présomption tellement forte
qu'elle exclut toute autre possibilité. Ce n'est pas ce que la loi
requiert. Il y a une distinction fondamentale qu'il faut faire entre le droit
criminel et le droit civil. En matière criminelle, la Couronne doit toujours
prouver la culpabilité de l'accusé au delà d'un doute raisonnable. En
matière civile, la balance des probabilités est le facteur décisif.
* * *
Les tribunaux doivent souvent agir en pesant
les probabilités. Pratiquement rien ne peut être mathématiquement prouvé. (Jérôme
v. Prudential Insurance Co. of America ((1939) 6 Ins. L.R. 59 at 60), Richard
Evans & Co. Ltd. v. Astley ((1911) A.C. 674 at 678), New York Life
Insurance Co. v. Schlitt ((1945) S.C.R. 289 at
300), Doe D. Devine v. Wilson (10 Moore P.C.
502 at 532)).
In Champagne v. Labrie,
Rivard J. said at p. 487:
Les présomptions qui résultent des faits sont
laissées à l'appréciation du tribunal, à sa discrétion et à son jugement (C.C.,
art. 1238, 1242).
Il n'est pas besoin de rappeler que notre Code
civil n'impose pas au tribunal les directives que prescrit le Code Napoléon
dans l'exercice de la discrétion que la loi lui laisse en cette matière (Code
Napoléon, art. 1353).
* * *
Je crois que le premier juge en appréciant
cette preuve de circonstances a décidé suivant la prépondérance des probabilités
et qu'il n'y a pas lieu pour cette Cour d'intervenir sur ce point.
To balance these probabilities, the trial judge may
draw-inferences: Simpson v. London, Midland and Scottish Rlwy. Co., per Viscount Dunedin at
p. 357.
[Page 613]
The duty of the appellate court was put by Davis J. in Danley
v. C.P.R.,
quoting Lord Shaw in Kerr v. Ayr Steam Shipping Co. Ltd.:
is a very different, a strikingly different, one. It is to
consider whether the arbitrator appointed to be the judge of the facts and
having the advantage of hearing and seeing the witnesses, has come to a
conclusion, which conclusion could not have been reached by a reasonable man.
For the reasons which I have outlined, I am of the opinion
that the learned trial judge who had the advantage of hearing and seeing the
witnesses and who carefully considered all the evidence, including the direct
evidence of the respondent, the evidence as to the circumstances, and the
opinion of the experts, has weighed the probabilities and has come to a
conclusion which is a reasonable one. I would, therefore, allow the appeal with
costs and restore the judgment of Lizotte J.
The judgment of Fauteux and Abbott JJ. was delivered by
Abbott J. (dissenting):—This
action arose out of a collision between two automobiles which occurred on
September 30, 1955, in which the driver of one of the vehicles, the husband of
the appellant, was killed. The facts are fully set out in the judgments below
and in the reasons of my brother Spence, which I have had the advantage of
considering.
The only surviving witness of the accident was the
respondent Provencher, the driver of one of the cars involved. The learned
trial judge found his evidence vague and confusing as to what happened at the
time of the collision and refused to accept it. In maintaining the appellant's
action therefore, he relied upon inferences drawn from the circumstances
surrounding the accident and upon theories as to how it happened, advanced by
two expert witnesses. That judgment was unanimously reversed by the Court of
Queen's Bench.
The burden of proving negligence was upon the appellant, and
the learned judges in the Court below refused to
[Page 614]
accept the inferences made by the learned trial judge as to
the manner in which the accident occurred.
It is well settled, of course, that where a judgment upon
facts has been rendered by a court of first instance, and a first court of
appeal has reversed that judgment, a second court of appeal should interfere
with the judgment on the first appeal only if clearly satisfied that it is
erroneous. Demers v. Montreal Steam Laundry Company; Pelletier v.
Shykofsky.
The appellant has failed to satisfy me that the judgment of
the Court below is erroneous and I would therefore dismiss the appeal with
costs.
Appeal allowed with costs, Fauteux and Abbott JJ.
dissenting.
Attorneys for the plaintiff, appellant: Casgrain
& Casgrain, Rimouski.
Attorneys for the defendant, respondent: Gagnon, de Billy, Cantin & Dionne, Quebec.
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