Morin v. Morin et al., [1979] 2 SCR 205

Supreme Court of Canada

Morin v. Morin et al., [1979] 2 S.C.R. 205

Date: 1979-05-22

Roméo Morin (Defendant, Respondent) Appellant;

and

Rosaire Morin and René Morin (Plaintiffs, Appellants) Respondents.

1978: December 12; 1979: May 22.

Present: Martland, Ritchie, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Interpretation—Construction of statute—Unsatisfied judgment fund—Amount recoverable—Deduction for amounts recovered from other sources—Two claimants in respect of same accident—Limit of fund $35,000—Motor Vehicle Act, R.S.N.B. 1973, c. M-17, ss. 323, 336—Interpretation Act, R.S.N.B. 1973, c. I-13, s. 22.

Rosaire M. obtained judgment against Roméo M. for $30,500 (exclusive of costs) arising out of a motor vehicle accident. He received from the provincial government benefits valued at $4,199.85 by way of hospital and medical services and claimed the balance of $26,300.15 from the Unsatisfied Judgment Fund under s. 323 of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17. René M., injured in the same accident, obtained judgment against Roméo M. for $9,800, received benefits valued at $676 and claimed the balance of $9,124 from the Fund. The appeal was concerned exclusively with the true interpretation of s. 336 of the Act regulating the amounts which can be paid from the Fund in respect of two plaintiffs injured in the same accident. The Queen’s Bench Division and the Appeal Division differed in deciding the method to be used in determining what amount should be paid from the Fund. The trial judge held that s. 336(1) meant that individual judgments should be lumped together and the total benefits received by the claimants from other sources should be deducted from the $35,000 maximum and the balance distributed between the respondents. The Appeal Division favoured the alternative contention advanced by the present respondents.

Held: The appeal should be allowed.

Highway Victims’ Indemnity Fund v. Martineau, [1978] 1 S.C.R. 247, has no application. In that case there was only one claimant but two sources of recovery; in this case there are two claimants but only one fund. Section 336(1) was properly construed by the trial

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judge. Further, the word “creditor” as it occurs in s. 336(1) should be read as including “creditors” in accordance with s. 22 of the Interpretation Act, R.S.N.B. 1973, c. I-13.

Highway Victims’ Indemnity Fund v. Martineau, [1978] 1 S.C.R. 247 distinguished.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1], allowing an appeal from a judgment of Léger J.[2] in the matter of an application for an order directing payment out of the Unsatisfied Judgment Fund. Appeal allowed.

David M. Norman, Q.C., for the appellant.

Alexandre Des chênes and Richard G. Shaw, for the respondents.

The judgment of the Court was delivered by

RITCHIE J.—This appeal, brought with leave of this Court, is concerned exclusively with the true interpretation to be assigned to the language used in s. 336 of the Motor Vehicle Act, R.S.N.B. 1973, c. M-17, (hereinafter called the “Act”), regulating the amounts which the Provincial Secretary is required to pay out of the Unsatisfied Judgment Fund established by the Act in respect of two plaintiffs sustaining injury in the same accident who have fully complied with all the prerequisites for such payment. The relevant portions of the section in question read as follows:

336(1) There may not be paid out of the Fund

(a) any amount for interest on a judgment or interest on costs,

(b) any amount in respect of a judgment in favour of a person who ordinarily resides outside of New Brunswick, unless such person resides in a jurisdiction that provides substantially the same benefits to persons who ordinarily reside in New Brunswick, but no payment shall include an amount that would not be payable by the law of the jurisdiction in which such person resides,

(c) more than thirty-five thousand dollars, exclusive of costs, for injury to or the death of one or more persons or damage to property resulting from any one

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accident occurring on or after May 1, 1965, except that payments with respect to damages for damage to property shall be limited to claims for damages in excess of one hundred dollars,

But, where the judgment creditor recovers or is or was entitled to recover, from any source, for or in respect of any injury, death or damage to person or property arising out of the operation, care or control of the motor vehicle by the owner or driver against whom the judgment was obtained whether or not in the action damages were claimed for or in respect of the injury, death or damage or where he receives or is or was entitled to receive, from any source, compensation or services or benefits with a pecuniary value for or in respect of the injury, death or damage, the amount so recovered or received and the amount that he is or was entitled to recover or receive and the amount of compensation and pecuniary value of any services or benefits received or that he is or was entitled to receive, if the amount of damages included in his judgment

(d) is less than the maximum amount payable under paragraph (c) shall be deducted from that amount and the difference only may be paid out of the Fund, and

(e) is greater than the maximum amount payable under paragraph (c), shall be taken into consideration to the extent that the judgment creditor shall not recover or be or have been entitled to recover an amount, or receive or be or have been entitled to receive compensation or pecuniary value of services or benefits from other sources and from the Fund in excess of thirty-five thousand dollars.

With the greatest respect for all concerned, I am bound to say that the language employed in the drafting of this section is such as to make it difficult to determine the true intention of the Legislature and it is not surprising to find that the Queen’s Bench Division and the Court of Appeal of New Brunswick differed in deciding the method to be employed in determining what amount is intended to be paid out of the Fund in a case such as the present where two claimants (creditors) were injured in the same accident recovering judgments totalling more that $35,000 and each being entitled to compensation from other sources in an amount less than the $35,000 payable out of the Fund. The difference between the parties to this action is well summarized by Limerick J.A. in the

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course of the reasons for judgment which he delivered on behalf of the Court of Appeal which are now conveniently reported in (1978), 22 N.B.R. (2d) 204, where he said at p. 206:

The right of each of the appellants to recover some amount is not disputed. The Minister contends the individual judgments should be lumped together and, as they exceed in total $35,000, the total benefits received by the creditors from other sources should be deducted from the $35,000 maximum and the balance only, plus costs, be distributed between the appellants.

The appellants, on the other hand, contend that the amount or value each has received from other sources should be deducted from the amount of his individual judgment and, as these are each less than $35,000, the balance of his judgment up to a total of $35,000 would be paid out of the Fund.

The Judge adopted the contention of the Minister.

In the present case the plaintiff, Rosaire Morin, recovered judgment from Romeo Morin in the amount of $30,500 exclusive of costs and recovered $4,199.85 from other sources. Rene Morin on the other hand, recovered a judgment of only $9,800 and effected recovery from other sources in the amount of $676. In determining the amount which each was entitled to recover from the Fund under s.336, the learned trial judge, whose reasons for judgment are reported in (1978), 19 N.B.R. (2d) 275, adopted the contention of the Minister holding that the sum of recovery by both claimants (“creditors”) from other sources should be deducted from the $35,000 total available from the Fund and that the balance thereof then remaining should be distributed between the claimants. In the event the result of this reasoning in the present case was that the net liability of the Fund, reduced by the sum of contributions from other sources, was $30,124.15, and the learned trial judge decided that this amount should be divided pro rata between the plaintiffs: $22,798.57 plus costs to Rosaire Morin and $7,325.48 plus costs to Rene Morin.

In reaching this conclusion it will be seen that in assessing the amount to be deducted from other sources the learned trial judge took into account

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the sum of the amounts recoverable by each claimant (creditor) which entailed reading the word “creditor” as it occurs in s. 336 in the plural in accordance with the provisions of s. 22 of the Interpretation Act which is couched in the following well-known language:

22. In an Act or regulation…

(h) a word in the singular includes the plural and a word in the plural includes the singular.

In adopting the contention advanced on behalf of the present respondents, Mr. Justice Limerick, speaking on behalf of the Appeal Division of the Supreme Court of New Brunswick treated the amount of each creditor’s claim separately and held that the sums recovered by each from other sources should be deducted from the amount of each judgment and that the total of the two judgments after making such deductions should be recovered from the Fund. The result of this reasoning in the present case was to assess the claim of Rosaire Morin at an amount equal to his judgment ($30,500) less his recovery from other sources ($4,199.85) for a total of $26,300.15, whereas on the same basis, Rene Morin’s claim is valued at $9,124, being the amount of his judgment ($9,800) less $676.

This method of calculation results in a claim for $35,424.15 which is in excess of the total available in the Fund and Mr. Justice Limerick adopted the following reasoning in determining the amount to be paid out of it:

Adopting the reasoning of the Supreme Court in Martineau, by treating each judgment on an individual basis and finding the judgment of Rosaire Morin was less than $35,000, the amount received by him, viz. $4,199.85 must be deducted therefrom and his claim assessed at $26,300.15. The claim of Rene Morin, after deducting his recovery, is $9,124. The total of the two claims amounts to $35,424.15, a sum in excess of the maximum payable out of the Fund.

As the amount which each is to recover out of the Fund is to be calculated based on the amount represented by the difference between the judgment debt and the amount received from other sources, the payment out, (ignoring the 15¢), should be proportioned on that same basis viz.

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I am satisfied that the case of The Highway Victims Indemnity Fund v. Martineau[3], has no application to the present circumstances. What was at issue there was the liability of a $35,000 fund established under the Highway Victims Indemnity Act, R.S.Q. 1964 c. 232 for injuries sustained in an accident caused in part by an unknown driver. In that case there was only one claimant but there were two sources of recovery because the liability was found to be joint between the insured driver whose insurer paid the claimant an amount in excess of $35,000 and the “unknown driver” fund established by the statute. The question to be determined was whether the fund was released by the fact that the claimant had already been compensated in an amount exceeding $35,000.

Here there are two claimants and only one fund. What is at issue here is the right of these claimants to recover from the New Brunswick Unsatisfied Judgment Fund where each has effected recovery of less than $35,000 from other sources. Like the learned trial judge, I am of opinion that s. 336(1) of the Act is to be construed as meaning that individual judgments should be lumped together and the total benefits received by the claimants from other sources should be deducted from the $35,000 maximum and the balance distributed between the respondents. In this regard also I share the view of Mr. Justice Léger that the word “creditor” as it occurs in s. 336(1) should be read as including “creditors” in accordance with s. 22 of the Interpretation Act. I would accordingly allow this appeal and restore the judgment of the learned trial judge.

In accordance with the provisions of the order granting leave to appeal to this Court, the appellant will pay the respondents’ costs in this Court.

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Appeal allowed with costs, judgment at trial restored.

Solicitor for the appellant: David M. Norman, Fredericton.

Solicitors for the respondents: Michaud, LeBlanc, Robichaud & Deschênes, Shediac.