Rubis v. Gray Rocks Inn Ltd., [1982] 1 SCR 452

SUPREME COURT OF CANADA

Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452

Date: 1982-04-05

Anastasia Rubis Appellant in continuance of suit;

and

Gray Rocks Inn Limited Respondent.

File No.: 14147.

1981: March 11; 1982: April 5.

Present: Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Negligence — Girl falling from hotel window — Function of screen — Radiator in front of window trap or apparent danger — Presumption of art. 1054 C.C. — Special provisions of art. 1055 C.C. — Mistake to refer to common law categories of invitee, licensee and trespasser in civil law — Role of an appellate court — Civil Code, arts. 1053, 1054, 1055.

On September 2, 1964 appellant, who was then four years old, was injured by falling from a window of the hotel operated by respondent. Appellant apparently managed to climb onto a radiator located under the window, leaned against the screen and the latter gave way. The Superior Court held that the screen was defective and, relying expressly on arts. 1054 and 1055 and by implication on art. 1053 of the Civil Code, held respondent liable. The Court of Appeal reversed this judgment.

Held (Estey and McIntyre JJ. dissenting): The appeal should be dismissed.

Per Beetz, Chouinard and Lamer JJ.: The Court of Appeal properly undertook to review the conclusions to be drawn from the facts as found by the trial judge. In imposing on respondent the very heavy burden of the presumption created by art. 1054 C.C., the judge committed a grave error capable of vitiating his conclusions. Article 1054 does not apply when the damage results not from the action of the thing itself but from the action of the person who has control over it.

Article 1055 is also not applicable, because the construction defect and the want of repairs covered by this provision must be looked at in light of the purpose for which the building is to be used. The uncontradicted evidence established that the only purpose of the screen is to prevent mosquitoes and birds from getting into the room, not to protect its occupants from a possible fall. The accident therefore occurred because the screen was

[page 453]

used for a purpose contrary to that for which it was intended.

The positioning of the window and the radiator did not constitute a trap making the occupier liable under art. 1053 C.C. A trap is in general an intrinsically dangerous situation, and the danger should not be apparent but hidden. In the case at bar, if the situation of the premises involved a danger, since the radiator facilitated access to the window, then the danger was apparent and it was the victim's parents who had a duty to protect her.

Per Estey and McIntyre JJ., dissenting There appears to be no basis in the factual record for the Court of Appeal either td interfere with the decision and conclusions of the trial judge and to disregard the critical finding, based on the evidence, that the accident occurred because the screen "was defective in that it opened too easily". The trial judge made the correct determinations in assessing responsibility, and respondent could properly be held liable. Article 1053 C.C. is applicable in the case at bar, as respondent has by fault by omission allowed appellant to be exposed to a great danger: the screen of the room which she occupied with her parents did not provide a minimum degree of safety because of its defective condition.

[Quebec Railway, Light, Heat and Power Company v. Vandry, [1920] A.C. 662; City of Montreal v. Watt and Scott Limited, [1922] 2 A.C. 555; City of Montreal v. Salaison Maisonneuve Ltée, [1954] S.C.R. 117; Jalbert v. Cité de Sherbrooke, [1962] S.C.R. 94; Curley v. Latreille (1920), 60 S.C.R. 131; Fisher v. Ouimet (1937), 75 C.S. 340; Lavoie v. Shatsky (1940), 68 Que. K.B. 514; Mongeau v. Sylvestre, [1944] C.S. 276; Castle des Monts Inc. v. Dame Segal, [1966] Que. Q.B. 653; Centre Commercial Lévis Inc. v. Mlle Leclerc, [1973] C.A. 837; Leznek v. City of Verdun, [1940] $.C.R. 313; Bourassa v. Grégoire (1926), 42 Que. K.B. 154; Poulet v. Hébert, [1950] C.S. 315; Caron v. Archambault, [1955] R.L. 438; Hamel v. Hamel, [1958] C.S. 304; Guimond v. Modzelewski, J.E. 79-166; City of Ottawa v. Munroe, [1954] S.C.R. 756; Mersey Docks and Harbour Board v. Procter, [1923] A.C. 253; Drapeau v. Gagné, [1945] Que. K.B. 303; Girard v. City of Montreal, [1962] C.S. 361; Hôtel Montcalm Inc. v. Lamberston, [1965] Que. Q.B. 79; Larivée v. Canadian Technical Tape Limited, [1966] Que. Q.B. 700; Perron v. Provost, [1959] Que. Q.B. 531; Indermaur v. Dames, (1866) L.R. 1 C.P. 274; Robert Addie and Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358; Hamel v. Chartré, [1976] 2 S.C.R. 680; Riel v. Murrren Co. Ltd.,[1971] C.A. 367;

[page 454]

Eaton v. Moore, [1951] S.C.R. 470; Canadian National Railways v. Lancia, [1949] S.C.R. 177; Cité de Verdun v. Yeoman, [1925] S.C.R. 177; Desrosiers v. The King (1920), 60 S.C.R. 105; Hallé v. Canadian Indemnity Company, [1937] S.C.R. 368; Hood v. Hood, [1972] S.C.R. 244; Pelletier v. Shykofsky, [1957] S.C.R. 635; Dorval v. Bouvier, [1968] S.C.R. 288; Voyageur Provincial Inc. v. Guidolin, [1977] 2 S.C.R. 1112, referred to.]

APPEAL from a judgment of the Court of Appeal of Quebec, [1975] C.A. 903*, reversing a judgment of the Superior Court. Appeal dismissed, Estey and McIntyre JJ. dissenting.

A. J. Campbell, Q.C., and Jacob Rothman, for the appellant.

J. Vincent O'Donnell, Q.C., for the respondent.

English version of the judgment of Beetz, Chouinard and Lamer JJ. delivered by

BEETZ J.—The appeal is from a unanimous decision of the Court of Appeal, which reversed a judgment of the Superior Court ordering respondent to pay damages of $37,250 to George Rubis, appellant's father, in his capacity of tutor to his minor daughter Anastasia, with interest from the date of service and costs.

Anastasia Rubis, now of legal age, submitted a motion in continuance of suit to which her father and respondent consented. This motion is allowed and the style of cause is amended by substitution of the name of appellant for that of her father.

The quantum of damages is not in dispute. However, appellant is asking that the additional indemnity provided for by the second paragraph of art. 1056c of the Civil Code, in effect on January 1, 1972, be added.

I—Facts

There is also little dispute as to the facts, but the Court of Appeal and the Superior Court drew different conclusions from them. Colas J. of the Superior Court summarized them as follows:

[page 455]

The Plaintiff, his wife and his two children then aged respectively 4 (Anastasia) and 2 years old were registered as guests at the hotel owned by the Defendant from Monday, August 31st, 1964. As appears from advertising samples produced as exhibit P-7, and from Mr. Wheeler's testimony, the hotel in question is a first class family hovel. They all occupied the same room with adjoining bathroom situated four floors above the ground level. In that room there were two large windows side by side, as appears from the various photographs filed in the Court record (exhibits P-5, P-6, P-10, D-2). Each window measured 3 feet 4 inches in width and was equipped with an aluminum screen. A model of the type of screen installed at the said hotel was filed as exhibit D-1.

On September 2, 1964, shortly before noon, the members of the Rubis family were in their hotel room. Mr. Rubis was shaving while Mrs. Rubis was resting on her bed and playing with her children. Then Mrs. Rubis decided to prepare a bottle of milk for her two-year child and entered the bathroom in order to clean the nipple. As the bathroom was quite small Mr. Rubis still wiping his face with a towel, stepped from the bathroom into the bedroom. He then saw the feet of his daughter Anastasia disappearing out of the window and the screen swing back into place. Anastasia landed on the ground below, suffering serious injuries.

As appears from the model filed as D-1, the screen consists of an aluminum mesh held in an aluminum frame. The frame is equipped with upper and lower attachments. The upper attachment fits into the window frame and acts as pivots, allowing the screen to swing outward from the bottom. The bottom of the screen is kept closed by small metal bolts or pins which slide into small receptacles in either side of the window frame.

This type of screen was in current use in the building industry when the construction of the hotel was carried out in 1955-56 and is still in current use. It has also been established that the said screen was manufactured by a reputable manufacturer.

However, according to Mr. Rubis' testimony, the screen wits fastened to the window with a pin which went into the window sill. He added that the hole into which the pin was going "was very much enlarged, it was quite large, it was not like it was supposed to be, and the pin was small, so with the slightest touch the

[page 456]

screen would open". Mr. Rubis has also said that he pushed the screen himself after the accident in order to find out how the accident occurred and then he noticed how easily the screen was opening.

[…]

Another fact needs to be mentioned in this case: The window where the defective screen was, had underneath it a radiator measuring 19½ inches in height and having a projection of 2 3/4 inches from the wall. The height of the window sill from the floor was 27 1/4 inches.

The victim retained no recollection of the accident and the evidence did not establish just how it occurred. Appellant's theory, apparently accepted by the trial judge, is that the child, who was about three feet tall, managed to climb onto the radiator, leaned against the screen through the open window and the pins gave way.

This hypothesis is plausible, but other equally plausible possibilities may also be imagined. For example, the child might have lost her balance on the narrow radiator and fallen against the screen with all of her weight. She could also have managed to open the screen by playing with the pins.

In holding respondent liable, the trial judge relied on art. 1053 of the Civil Code, though she did not expressly cite it, and on arts. 1054 and 1055, to which she referred expressly. Article 1053, the first paragraph of art. 1054 and the last paragraph of art. 1055 read as follows:

1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

1054. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of persons under his control and by things he has under his care.

[…]

1055....

The owner of a building is responsible for the damage caused by its ruin, where it has happened from want of repairs or from an original defect in its construction.

[page 457]

II—Article 1054

The trial judge clearly erred in law in relying on art. 1054 to find respondent liable. Counsel for the appellant had to admit this himself at the hearing. Article 1054 creates a presumption of liability against anyone having a thing in his care when the damage is caused by the positive and independent action of that thing: Quebec Railway, Light, Heat and Power Company v. Vandry, [1920] A.C. 662; City of Montreal v. Watt and Scott Limited, [1922] 2 A.C. 555; City of Montreal v. Salaison Maisonneuve Ltée, [1954] S.C.R. 117; Jalbert v. Cité de Sherbrooke, [1962] S.C.R. 94. However, this provision does not apply when the damage results not from the action of the thing itself but from the action of the person who has control over it: Curley v. Latreille (1920), 60 S.C.R. 131, at p. 140.

In the case at bar, it is not possible to speak of the independent action of the screen, which was really set in motion by the victim, and there cannot be liability under art. 1054.

By this error, the trial judge improperly imposed on respondent the very heavy burden of the art. 1054 presumption, which it can only shift by establishing that it was impossible to prevent the accident.

Such an error is capable of vitiating the conclusions arrived at by the Superior Court, and in my view it justified the Court of Appeal in undertaking to review the conclusions to be drawn from the facts as found by the trial judge.

III—Article 1055

The trial judge found the screen defective in that it opened too easily, the defectiveness resulting from its having been in use for some nine years. This finding was based primarily on the testimony of the victim's father, who examined the screen after the accident in order to determine what had caused it.

George Rubis testified, first, that the pins of the screen were set in openings pierced directly into the window frame, and that these openings were

[page 458]

very much enlarged. He was given a photograph taken at the time of the hearing. This photograph showed that the pins were set not in the window frame but in an aperture or catch, pierced into metal plates which were themselves held by screws in the window frame. George Rubis replied, first, that these metal plates were not there at the time of the accident. He was then shown photographs which he took himself at that time and which, it is true, are not as clear as the first one: he finally said, in answer to questions put by his own counsel, that he might not have noticed the metal plates because of the paint covering them.

The contractor Daoust, who installed the screen, stated that if the wire mesh of the screens was changed often enough, even annually, the frame of the screens ought to last about twenty years. The engineering consultant Wiggs, who participated in preparing plans for the hotel, stated that " ... nine years for a screen is not very much".

On the other hand, the evidence for the defence tended to show that these screens are designed to open very easily, so that they do not obstruct the exit of occupants in the event of fire and also to make cleaning the windows easier; according to this evidence, the fact that the catches in which the pins are located were oval and not round gives them a somewhat worn appearance, but this form is intended to facilitate movement of the pins.

Finally, it should be noted that the evidence did not establish whether the child's fall through the screen may have affected the solidity of the latter: the child's father examined the screen after the accident but, according to his testimony, neither he nor his wife touched either the screen or the open window in the two days before the accident, during which they occupied this hotel room.

Even assuming, for purposes of argument, that the trial judge committed no manifest error in

[page 459]

concluding that the screen was worn,' there still remain two obstacles to the application of art. 1055 of the Civil Code to the circumstances of the case at bar.

The first difficulty is as follows: can it be said that wear and tear on the screen is equivalent to the ruin of the latter within the meaning of art. 1055?

This may be doubtful, because even when worn the screen remained attached at the top to the window frame. It did not become detached from the building. It did not fall. It remained in place.

Some commentators have argued, and there is some judicial authority for the proposition, that art. 1055 does not apply unless material forming part of the building falls. Thus, for example, J. Pineau and M. Ouellette-Lauzon write in Théorie de la responsabilité civile, 1977, at p. 127:

[TRANSLATION] Ruin of a building

This means the partial or total collapse of a building. It is not necessary for it to be completely ruined, for the building to collapse completely; it is not necessary for the solidity of the building as a whole to be compromised. It suffices if material which is an integral part of the building falls, if some part of the building becomes detached: a tile that falls off, a chimney that collapses, a cornice or shutter that becomes loose, a stair rail that collapses, a glass door which shatters.

See also the following judgments and decisions, which require more than mere old age or defectiveness of a part of a building for art. 1055 to apply: Fisher v. Ouimet (1937), 75 C.S. 340; Lavoie v. Shatsky (1940), 68 Que. K.B. 514; Mongeau v. Sylvestre, [1944] C.S. 276; Castle des Monts Inc. v. Dame Segal, [1966] Que. Q.B. 653; Centre Commercial Lévis Inc. v. Mlle Leclerc, [1973] C.A. 837.

However, it is not necessary to resolve this first problem. It was not actually argued, and the second problem, which was argued both in the Superior Court and the Court of Appeal as well as in this Court, is controlling.

[page 460]

The construction defect and the want of repairs to which art. 1055 of the Civil Code applies must be seen in light of the purpose for which the building is to be used. If the victim of an accident makes a use of the building or of a part of the building that is contrary to the purpose for which it was intended, he cannot hold the owner liable for damage which results from its ruin. The law on this point is well settled. Thus, in Leznek v. City of Verdun, [1940] S.C.R. 313, a window washer who held onto the transom of a window fell to the ground because the transom, which was old and rotten, gave way. The jury divided liability: according to its verdict, the owner was at fault for not having kept the building in a good state of repair, and the victim for using the transom for a purpose for which it was not intended. This Court held that, in these circumstances, the owner of the building could not be held liable. Rinfret J., as he then was, gave the unanimous reasons of the Court. After citing the third paragraph of art. 1055, he wrote at pp. 317-18:

We may disregard that part of the article which deals with "an original defect in its construction," since the answer of the jury is limited to the "want of repairs."

Now the interpretation given to that article has been invariably that the want of repairs must be looked at from the viewpoint of the purpose for which the building or part of building was intended.

[TRANSLATION] A lack of maintenance or a construction defect is judged having regard to the use made of the part of the building to the ruin of which the damage requiring compensation is due (Aubry and Rau, Fifth Ed. Tome 6, page 433).

Planiol (vol. 6, No. 609) says that the proprietor should not be held responsible

[TRANSLATION] if he proves that the defect or decay with age would not have led to the ruin but for the wrongful act of the victim.

(See also Demogue, Obligation, vol. 5, pages 313 and 325); Bourassa v. Grégoire (1926), Q.R. 42 K.B. 154.

In this case, therefore, the respondent could be held legally responsible only for failure to keep the building in proper state of repair for the purpose for which it was intended.

[page 461]

Such is the meaning of paragraph 3 of article 1055 C.C.

[…]

Upon the finding of the jury that the appellant used the transom bar for a purpose for which it was not intended, the respondent was relieved of any legal responsibility under that article and the Court of King's Bench was right in reversing the judgment of the trial judge and in dismissing the action. The appeal ought, therefore, to be dismissed with costs.

As Rinfret J. pointed out, the Court of Appeal had already made a similar ruling in an almost identical case, Bourassa v. Grégoire (1926), 42 Que. K.B. 154. See also Poulet v. Hébert, [1950] C.S. 315; Caron v. Archambault, [1955] R.L. 438 (C.S.); Hamel v. Hamel, [1958] C.S. 304 and Guimond v. Modzelewski, J.E. 79-166 (C.S.).

Respondent had been arguing that the purpose of the screen in question was to keep mosquitoes, birds and bats from getting into the room while at the same time allowing air and light to pass through, but not to prevent falls or to stop people from getting out. The screen was therefore used for a purpose contrary to that for which it was intended.

The trial judge dismissed this submission as follows:

To answer this argument, one must examine in detail the use and function of a screen.

A screen essentially is a window, save and except for the fact that a window while closed does not permit air to enter a room while a screen does. In other respects, a screen like a window permits sunshine to enter a room and prevents insects, birds, etc., from entering. A screen and a window have an interchangeable function and during the more temperate periods of the year when fresh air is desirable, screens are utilized for the basic reasons already referred to.

It cannot be reasonably argued that a child cannot and should not look out through a window nor can it be reasonably argued that a child cannot or should not press his or her face or hands against a window in order to look out. This does in fact constitute normal behavior

[page 462]

and children are known to do these things particularly when an object or an event catches their interest. Assuming therefore, that in the event that a child pressed his or her face or hands against a window in order to look out, and is severely cut because the window falls apart, can it therefore be reasonably argued that the owner of the hotel or apartment is not responsible, on the premise that the window was being put to a use for which it was not intended or designed.

This contention cannot be accepted. A window must be constructed with certain inherent strengths in order to permit it to resist a certain minimum of pressure. It is evident that if an individual swings a bat or a broom and breaks a window and is injured as a consequence, no liability would result for the owner. A window may not be of sufficient strength to withstand such force. However, in an apartment building or a hotel for that matter, a window must be of sufficient strength to stand a minimum of force, i.e., a young child leaning up against a window in order to look out.

[…]

In summary therefore, the Court cannot accept in this particular case the argument of Defendant to the effect that since a screen is only for the purpose of preventing flies, dirt, etc., from coming in, and permitting sunlight to enter and is not intended or designed for any other purpose, a child injured as a consequence of a defective screen, should not be compensated.

If one assumes that a child can and will lean against a window and one will not accept the fact that a window will give way resulting in injuries to a child, under these circumstances, why must one arbitrarily accept the premises that a screen can give way if a child leans against it. In the opinion of the Court, there is no real distinction between a window and a screen in this regard.

The Court of Appeal disagreed with the trial judge on this point. Tremblay C.J. wrote:

[TRANSLATION] What was the use for which the screen was intended? As the uncontradicted evidence established, and the trial judge observed, it was to prevent mosquitoes and birds from getting into the room. This was its only purpose, and the screen in question was entirely and absolutely suited to the use for which it was intended.

[page 463]

And the Chief Justice concluded:

[TRANSLATION] The accident occurred because the child used it for a purpose for which it was in no way intended.

The evidence presented regarding the use for which the screen was intended was as follows.

The engineer Wiggs described the purpose of these screens:

These windows are designed for three reasons: one reason to keep the birds out, because people usually object to birds in their bedrooms, and they even object more seriously to bats which will very commonly go into a lot of rooms if there is no screen on. Besides keeping birds and bats out of bedrooms, it also keeps flies out of bedrooms, I mean the large flies, not the small mosquitoes, but the large house flies, so in conclusion it serves the purposes of keeping out bats, birds and house flies:

[…]

Q. Now, Mr. Wiggs, were the fly screens intended to prevent people from getting out of the windows?

A. No, because you could shove the fly screen out readily, the fly screens are of course intended to prevent flies and bats from coming in.

Q. Was it intended that the fly screens would be strong enough to keep people in?

A. No.

The witness Frank MacDowell, an architect for the National Railways, testified to the same effect:

Q. And do some of your hotels have fly screens?

A. Yes, they surely do.

Q. And are these fly screens made of sufficient strength to prevent people from getting out, jumping out or falling out of windows?

A. No, the primarily use of these fly screens is to prevent the infiltration of insects.

The contractor Daoust said:

[TRANSLATION] ... the screen is not there for nothing, it is there to stop flies and insects from getting in: it is not there to protect anyone. It is really only an ornament.

[page 464]

Finally, the witness Stanley Shanks, who had worked for Cresswell-Pomeroy Ltd., the manufacturer of these screens, answered a question put to him by counsel for the respondent:

Q. What was it designed to do, what was it intended to do?

A. It was designed to keep out the flies and insects.

And in cross-examination:

Q. To your knowledge did the Cresswell-Pomeroy Company ever run any tests on that particular screen, was it tested in so far as its resistance to certain forces was concerned?

A. No, at least I don't think it ever was.

This uncontradicted evidence is all that was presented on the use for which the screen was intended. I think it is worth mentioning that the use ascribed to it by the witnesses is in accordance with that given in the definition in Petit Robert, 1979 edition:

[TRANSLATION] 1° Curtain of gauze or muslin put around beds to keep out mosquitoes. 2° Frame of wire gauze placed at windows and doors to keep mosquitoes and flies from entering a house.

(I note in passing that the same dictionary mentions that in Canada "moustiquaire" [screen] is a masculine noun, and I have used it in this judgment in the masculine.)

In the passage cited above regarding the intended use of a screen, the trial judge expressed her own opinion on the use to which a screen should be put and, with respect, it seems to me that she is. substituting this personal opinion for the conclusion which follows from the uncontradicted evidence as to the actual use of the screen in question.

Shortly before that, the trial judge had written: Normally, one can count on the safety and strength of screens to prevent small children from falling from a window.

If this reasoning is carried to its logical conclusion, it would follow that it would not have been careless for the parents of the child to leave her on the window sill if they had seen her there, since on this view it should be possible to rely on the

[page 465]

strength of screens to prevent a small child falling through a window or on a four-year old child being unable to open them.

I prefer the point of view stated by Lajoie J.A. when he observed:

[TRANSLATION] Little Anastasia managed to reach the window, and from there fall to the ground, because she momentarily escaped from supervision. I do not think that if the parents had seen their daughter climb onto the radiator they would have relaxed and let her do it in reliance on the safety and strength of the screen. This demonstrates that, in the mind of any reasonable man, the grating did not have the intended use now attributed to it.

I would add that even if the screen had nthe safety and strength of a closed' glass window, we have no assurance that it would have prevented a child from falling if she had tumbled into the window, as happened in City of Ottawa v. Munroe, [1954] S.C.R. 756, a decision of this Court on facts which occurred in Ontario, but which the Court of Appeal cited because of the similarity in the facts and the concept of a trap, a point to which I will return.

In my view, the Court of Appeal properly held that art. 1055 of the Civil Code does not apply to the circumstances of the case at bar.

IV—Article 1053

As I mentioned earlier, the trial judge did not expressly refer to art. 1053. However, she held that the screen, which she found to be defective, with the window next to the radiator, together constituted a trap for the child and her parents. She explained her point of view as follows:

The window being so near such a radiator and being easily reachable by a child of approximately 36 inches constituted an attraction for a child specially of the age of Anastasia: Consequently, the defective screen of such window constituted a trap for Anastasia who must have climbed on the radiator in order to be able to lookout from the window. Then the only possible explanation for this accident is that the child, once on the radiator, had only to press on the defective screen which opened and let her fall down.

It constituted also a trap for parents taking care of their children. Normally, one can count on the safety

[page 466]

and strength of screens to prevent small children from falling from a window. And specially so in a hotel which is advertising itself as a first class family hotel. Having not noticed anything wrong with the window and the screen in question, Mr. and Mrs. Rubis could not easily have foreseen this most unfortunate accident.

Tremblay C.J., with whom Lajoie J.A. concurred, took a different view. He wrote:

[TRANSLATION] The condition of the premises was clearly apparent and, if it presented a danger, the danger was apparent and Anastasia's parents should have protected her from it.

The concept of a trap, an ambush, a pitfall, is especially associated in the common law with an occupier's liability towards anyone in the position of a licensee:

A licensee takes premises, which he is merely permitted to enter, just as he finds them. The one exception to this is that, as it is put shortly, the occupier must not lay a trap for him or expose him to a danger not obvious nor to be expected there under the circumstances.

Lord Sumner in Mersey Docks and Harbour Board v. Procter, [1923] A.C. 253, at p. 274.

While the class of licensee is peculiar to the common law, the concept of a trap is not, and is found in civil law not as a legal classification but as one of the many factual situations whose existence it may be possible to attribute to fault by the occupier, to his action or to his negligence, and which may make him liable under the general rule stated in art. 1053 of the Civil Code. This is why the Quebec courts often consider whether a given situation amounts to a trap, in order to decide whether the occupier committed any fault in allowing that situation to exist.

The infinite variety of factual situations makes it impossible to define exactly what constitutes a trap. However, we can say that a trap is in general an intrinsically dangerous situation. The danger should not be apparent but hidden: for example, a door opening not onto a regular stairway, as might be expected, but onto vertical steps like those of a scaffold: Drapeau v. Gagné, [1945] Que. K.B. 303;

[page 467]

a stake fixed in the grass of a path and hidden by it: Girard v. City of Montreal, [1962] C.S. 361; but not a step in a well-lit corridor: Hôtel Montcalm Inc. v. Lamberston, [1965] Que. Q.B. 79. The concept of a trap generally includes some connotation of abnormality and surprise, in view of the circumstances; for example, a hole in the roof of a building under construction is not a trap for a workman working on the roof: Larivée v. Canadian Technical Tape Limited, [1966] Que. Q.B. 700; see also Perron v. Provost, [1959] Que. Q.B. 531.

Like the Court of Appeal, I am unable to see any trap in the condition of the premises as described by the trial judge and the witnesses, and as appears clearly on several photographs. The window in question is an ordinary window, as is the radiator underneath. Radiators are normally and regularly placed in such a position. An open window is of course capable of attracting the attention of a small child, but almost all situations involve some risk when one is dealing with small children. If, as the trial judge found, the situation of the premises involved a danger, since they facilitated access to the window, then the danger was apparent to the victim's parents, and it was they who had a duty to protect her without relying on the safety and strength of the screen, which was not intended to be used to keep children indoors. In my opinion, there can be no more question of a trap in the case at bar than in City of Ottawa v. Munroe, supra; and respondent committed no fault by leaving in place a screen which, with due respect to the trial judge, was not defective in terms of the use for which it was intended.

Appellant had the burden of proving that respondent was at fault, and she has not succeeded in doing so.

V—Invitees, licensees and trespassers in civil law

Counsel for the appellant argued that appellant was an invitee, and he referred the Court to a great many common law precedents. At common law, the duties owed by the occupier to persons on

[page 468]

the premises vary depending on whether these persons fall into certain abstract categories, invitees (Indermaur v. Dames, (1866) L.R. 1 C.P. 274; (1866) 14 L.T.R. 484), licensees (Mersey Docks and Harbour Board v. Procter, supra) and trespassers (Robert Addie and Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358).

I have already had occasion to express doubt as to whether these categories are part of the civil law: Hamel v. Chartré, [1976] 2 S.C.R. 680, at p. 688. My doubt was based on the fact that for over twenty years, the Quebec courts themselves have often relied on these concepts, sometimes on the questionable ground that they led to the same result as the civil law. Albert Mayrand, subsequently a judge of the Court of Appeal, reviewed these decisions in a remarkable article, "A quand le trépas du "trespasser"?", (1961) 21 R. du B. 1. See also Mignault, "Conservons notre droit civil" (1936-1937), 15 R. du D. 28; Nadeau, "Invitee, licensee et trespasser" (1944), 4 R. du B. 286; Nadeau, "Case and Comment" (1948), 26 Can. Bar Rev. 728; Antonio Perrault, "La critique des arrêts" (1945), 5 R. du B. 491.

However, I no longer entertain any doubt, and I am of the opinion that it is an error to refer to these common law categories in the civil law. They detract from the generality of art. 1053, disregard the presumption of art. 1054 and the special provisions of art. 1055, and we cannot be sure that they would necessarily lead to the same result as the civil law principles.

For the most part, it is trial court judgments which have tended to resort to the common law, and the Court of Appeal has from time to time opposed this tendency: Drapeau v. Gagné, supra; Riel v. Murren Co. Ltd., [1971] C.A. 367. Rinfret C.J. had a similar reaction in Eaton v. Moore, [1951] S.C.R. 470 at p. 476.

I know of no decision of this Court which has upheld in civil law the distinction between an invitee and a licensee. It is possible that this Court came quite close to recognizing the category of

[page 469]

"trespasser" in Canadian National Railways v. Lancia, [1949] S.C.R. 177, but the decision was based on an absence of fault by the appellant company.

Consideration must be given to intrusions or permissions granted by the occupier not in terms of abstract categories, but because they may, for example, affect the question of what is foreseeable, and they form part of the fabric of circumstance which must be taken into consideration in deciding whether the occupier has acted in an imprudent way. That is what this Court did in Cité de Verdun v. Yeoman, [1925] S.C.R. 177.

We do not have to decide how we would judge if we applied the common law. Common law precedents are of no assistance in the case at bar, and we must apply to them what Mignault J. wrote in Desrosiers v. The King (1920), 60 S.C.R. 105, at p. 126:

[TRANSLATION] With respect, it seems to me that it is time to react against the habit, in cases from the province of Quebec, of resorting to English common law precedents, on the ground that the Civil Code contains a rule which is in accordance with a rule of English law. On many points [ . . . ] the Civil Code and the common law do have similar rules. However, the civil law is a complete system in itself and must be interpreted in accordance with its own rules. If, whenever the legal principles are the same, the courts can resort to English law in order to interpret French civil law, the monuments of French jurisprudence might equally be cited to throw light upon the rules of English law. I repeat, each system is complete in itself, and apart from the case where one system takes from the other a rule that was formerly foreign to it, there is no need to go beyond it in search of the rule which should be applied to varied situations that arise in daily practice.

In the same case, Brodeur J. came to the same conclusion, at p. 125, and Anglin J., as he then was, wrote at pp. 119-20:

This case affords an excellent illustration of the danger of treating English decisions as authorities in Quebec cases which do not depend upon doctrines derived from the English law.

[page 470]

This passage was cited and approved by Rinfret J., speaking for this Court, in Hallé v. Canadian Indemnity Company, [1937] S.C.R. 368, at p. 384.

VI—The role of an appellate court

Finally, counsel for the appellant submitted that the Court of Appeal had wrongly reversed the Superior Court on questions of fact.

Opinion is divided as to this Court's role when an appellate court intervenes on questions of fact; the different views are summarized in the dissenting opinion of Laskin J., as he then was, in Hood v. Hood, [1972] S.C.R. 244. In the case at bar, the Court of Appeal accepted the facts as described by the trial judge; but it did not draw the same conclusions from them. The case is therefore really akin to that in Pelletier v. Shykofsky, [1957] S.C.R. 635; Dorval v. Bouvier, [1968] S.C.R. 288 and Voyageur Provincial Inc. v. Guidolin, [1977] 2 S.C.R. 1112. Additionally, as I mentioned above, the Superior Court erred in law, and this justified the Court of Appeal in undertaking to review the conclusions to be drawn from the facts as found by the trial judge.

I find no error of law or fact in the decision of the Court of Appeal.

VII—Conclusion

The appeal should be dismissed with costs.

The reasons of Estey and McIntyre JJ. were delivered by

ESTEY J. (dissenting)—This action arose as a result of injuries sustained on September 2, 1964 by Anastasia Rubis, then an infant of four years, at a resort hotel in the Province of Quebec. The little girl was at the time accompanying her parents and sister as guests in the Gray Rocks Inn. The mother, father and two children were living in a room in the hotel with bathroom adjoining and which room had two windows each equipped with aluminum [sic] screens. The injuries were sustained when the little girl fell through the screen to a paved area four stories below.

[page 471]

The aluminum [sic] screens were, or should have been, held in place by pins on each edge of the screen which when inserted in the frame of the window made the screens secure. The sill of the window in which the screen was installed was 27½ inches from the floor of the room. Fastened to the wall immediately below the window was a radiator 19½ inches in height and projecting from the wall 2 3 inches. Anastasia was approximately 36 inches in height. The hotel in question was a resort hotel described in exhibits at trial as being "a first class family hotel".

The trial judge summarized the incident as follows:

On September 2, 1964, shortly before noon, the members of the Rubis family were in their hotel room. Mr. Rubis was shaving while Mrs. Rubis was resting on her bed and playing with her children. Then Mrs. Rubis decided to prepare a bottle of milk for her two-year child and entered the bathroom in order to clean the nipple. As the bathroom was quite small Mr. Rubis still wiping his face with a towel, stepped from the bathroom into the bedroom. He then saw the feet of his daughter Anastasia disappearing out of the window and the screen swing back into place. Anastasia landed on the ground below, suffering serious injuries.

The trial judge made certain observations and findings with reference to these facts:

1) The fact that the screen in question would open with the slightest touch has not been contradicted by anyone. [ ... ] Consequently the screen in question in this case was defective in that it opened too easily. Had the screen not been defective, there is no plausible way in which the accident in question could have occurred. Moreover, the window had not been lifted during the time when Mr. and Mrs. Rubis occupied their room. Mr. Rubis has mentioned that they had not touched the window. This testimony relative to the defective screen has not been contradicted by anyone not even by the experts or other witnesses of the Defendant.

2) The window being so near such a radiator and being easily reachable by a child of approximately 36 inches constituted an attraction for a child specially of the age of Anastasia. Consequently, the defective screen of such window constituted a trap for Anastasia who must have climbed on the radiator in order to be able to look out

[page 472]

from the window. Then the only possible explanation for this accident is that the child, once on the radiator, had only to press on the defective screen which opened and let her fall down.

3) It constituted also a trap for parents taking care of their children. Normally, one can count on the safety and strength of screens to prevent small children from falling from a window. And specially so in a hotel which is advertising itself as a first class family hotel. Having not noticed anything wrong with the window and the screen in question, Mr. and Mrs. Rubis could not easily have foreseen this most unfortunate accident.

4) They behaved as reasonable parents. At no time in fact were their children left alone or ignored. It is the opinion of the Court that the accident in question occurred through no fault whatsoever on the part of the Plaintiff or his wife.

5) It did however occur through the negligence of the Defendant who neglected the obligations imposed upon it by law under article [sic] 1054 and 1055 of the Civil Code.

The learned trial judge also commented on the submission by the defendant, the owner of the hotel, that the screen was not intended or designed for the use to which it was put by the child as the screen in question was to "keep flies, birds and bats out of the building and not to prevent people from falling out". The trial judge responded to this argument as follows:

A screen essentially is a window, save and except for the fact that a window while closed does not permit air to enter a room while a screen does. In other respects, a screen like a window permits sunshine to enter a room and prevents insects, birds, etc., from entering. A screen and a window have an interchangeable function and during the more temperate periods of the year when fresh air is desirable, screens are utilized for the basic reasons already referred to.

[…]

In summary therefore, the Court cannot accept in this particular case the argument of Defendant to the effect that since a screen is only for the purpose of preventing flies, dirt, etc., from coming in, and permitting sunlight to enter and is not intended or designed for any other

[page 473]

purpose, a child injured as a consequence of a defective screen, should not be compensated.

In the result, damages were awarded against the owner of the building.

The Court of Appeal reversed the judgment at trial and dismissed the action. The Chief Justice, writing for himself, rejected the assimilation of a screen to a window although he did agree with the justice at trial that a child should be able to look out a window or press her hand or face against it. The Chief Justice then found that the purpose of the screen was to prevent mosquitoes and birds from entering the hotel room and that the screen was appropriate for that use but then concluded:

[TRANSLATION] The accident occurred because the child used it for a purpose for which it was in no way intended.

As to the question of the arrangement of the window and the radiator being a trap, the Chief Justice expressed doubt that on the facts an infant of three feet in height could have climbed up on the radiator without the help of some kind of a footstool and concluded:

[TRANSLATION] The condition of the premises was clearly apparent and, if it presented a danger, the danger was apparent and Anastasia's parents should have protected her from it.

He then referred to the decision of this Court in City of Ottawa v. Munroe, [1954] S.C.R. 75_.6 observing that while that case is predicated upon the distinction in the common law between invitees, licensees and trespassers, the common law in this regard did not differ substantially from the civil law. This Court concluded in the City of Ottawa case that an arrangement of a platform and a window did not constitute a trap entitling recovery of damages sustained by a child falling from the platform through the window. Hence the learned Chief Justice appears to have concluded that the arrangement of the radiator and the window in the room assigned to the Rubis' did not constitute a trap. Justice Owen, speaking for himself, concluded:

1) . . . it should not be said on the evidence in this case that, having in mind the intended function of the screen,

[page 474]

it was a defect in the screen which caused the fall of the child.

2) ... it should not be said that the screen in question in conjunction with the radiator adjacent to the window sill constituted a trap for the child.

The third member of the Court, Mr. Justice Lajoie, concluded:

[TRANSLATION] 1) The screen which opened to allow the Rubis child to fall through did not open of its own accord: it must have been subjected to some degree of pressure. This screen was made of wire netting. Even had the screen been made of canvas or of some light and flexible cloth, the owner certainly could not have been blamed for this and the accident would probably have occurred anyway. Whether the grating was open or gave way under the child's weight, it seems to me that the legal solution would be the same.

2) Little Anastasia managed to reach the window, and from there fall to the ground, because she momentarily escaped from supervision. I do not think that if the parents had seen their daughter climb onto the radiator they would have relaxed and let her do it in reliance on the safety and strength of the screen. This demonstrates that, in the mind of any reasonable man, the grating did not have the intended use now attributed to it.

This seems to be somewhat ambiguous in that it is not an express finding of fault on the part of the parents for lack of surveillance so much as an exoneration of the owner for the use of a screen in the window, whatever its condition. It may be that Mr. Justice Lajoie at the same time found the parents responsible for the injury to the infant because of lack of adequate surveillance on their part.

In any event, it is clear that none of the justices on appeal dealt with the essential finding of the trial judge that the accident occurred because the screen "was defective in that it opened too easily" and was thus the cause of the accident. There can be no question that there is some evidence in the record to support this conclusion and that the learned trial judge was correct in saying, "This testimony relative to the defective screen has not been contradicted by anyone ... ".

[page 475]

In the face of this reversal of findings of fact for which there is evidence in support one might first turn to the role of an appellate tribunal in a review of the facts as found by a trial judge.

It is, of course, fundamental that an appellate tribunal should:

(a) be reluctant to disturb a finding of fact, even where not entirely founded upon credibility of witnesses, unless the trial judge shall be seen to have thrown away his or her advantage in observing the witnesses during examination and cross-examination and in having the opportunity of assessing the testimony in the light of all the circumstances including the age and experience of the witnesses and the possibility that a witness, in testifying, had surrendered to the temptation of serving a purpose other than assisting the Court in its search for the truth; and

(b) be free, on the other hand, to draw inferences from the evidence which may be different from those drawn by the trial judge. All this doubtless preoccupied Fauteux J., as he then was, when stating in Dorval v. Bouvier, [1968] S.C.R. 288, at p. 293:

[TRANSLATION]In a case such as that now before the Court, the rules that should guide a first and a second court of appeal are well known. In view of the privileged position of the judge who presides at the trial, who sees and hears the parties and the witnesses and watches how they conduct themselves, the rule is that his opinion must be treated with the greatest respect by the appellate court, and that the latter's duty is not to retry the case, or to intervene to substitute his view of the evidence for that of the judge at trial, unless there is a manifest error in the reasons or findings of the judgment a quo.

In that case the Court of Appeal pointed out the error in the judgment at trial and formed its own conclusions on the facts. In contrast, the Court of Appeal in the proceeding now before us neither differed with nor even mentioned the essential finding of the trial judge on the facts or the cause of the infant's injury as determined from evidence given at trial. Vide also Watt or Thomas v. Thomas, [1947] A.C. 484 (H.L.) at pp. 487-88;

[page 476]

and Laskin J., as he then was, in Hood v. Hood, [1972] S.C.R. 244 at p. 253:

Overall, on my reading of the cases that have in recent years come before this Court, it has leaned in favour of the rule that carries support for the findings of the trial judge unless he was clearly wrong.

Schreiber Brothers Ltd. v. Currie Products Ltd. et al., [1980] 2 S.C.R. 78 at pp. 83-85 and Métivier v. Cadorette, [1977] 1 S.C.R. 371, where de Grandpré J. found (at p. 382) the principle of deference to the trial judge's undoubted advantage in settling issues of credibility:

In the case before this Court, the finding of the trial judge was set aside by the Court of Appeal in a case where the only point at issue was the interpretation of the evidence as a whole. In my view, that was a case where, applying the criteria established in Dorval, such an intervention was an error.

de Grandpré J. then continued with a reference to the judgment of this Court in Rousseau v. Bennett, [1956] S.C.R. 89, where Taschereau J., as he then was, at p. 92 stated:

[TRANSLATION]The intention of the law is that such presumption should be left to the discretion of the judge who sees and hears the witnesses, and if a Court of Appeal is to interfere in the exercise of this discretion, it is essential to find an error on the part of the trial judge, and such an error does not exist in the case at bar.

On the other hand, as already indicated, the drawing of inferences by the appellate court is another matter (Lessard v. Paquin et al., [1975] 1 S.C.R. 665 per de Grandpré J. at pp. 673-75) and indeed the principle was extended to this Court by Locke J. when he said in Union Maritime and General Insurance Co. v. Bodnorchuk et al., [1958] S.C.R. 399 (at p. 413):

The proper conclusions from the other evidence and the question as to what inferences are to be drawn from the conduct of the parties are matters upon which this Court is in an equally good position as the learned trial judge and the learned judges of the Court of Appeal.

[page 477]

Over the years since the grant of extended rights of appeal the extent of appellate latitude in reversing trial courts' assessment of the evidence, in the general interpretation of evidence and of course in determining important ground facts on which ultimate conclusions depend, has been by self-instruction increasingly restricted. Where there is no clear error in logic or reasoning the appellate courts have become increasingly reluctant to impose a different interpretation, logic or reasoning upon the evidence.

The window screen here illustrates the point. An expert witness was called by the defendant-respondent and in his evidence he assigned to a window screen the purpose or function of "preventing flies and bats from coming in". The question put to this witness illustrates the irrelevancy of such a demonstration from the witness box:

Q. Now, Mr. Wiggs, were the fly screens intended to prevent people from getting out of the windows?

A. No, because you could shove the fly screen out readily, the fly screens are of course intended to prevent flies and bats from coming in.

Q. Was it intended that the fly screens would be strong enough to keep people in?

A. No.

There are of course limits placed by common sense, if nothing else, on what experts may assist the court in determining. No witness, for example, may be called upon to determine the very issue to be settled by the tribunal. Testimony on the trite is superfluous as is the demonstration of the obvious. Courts do not need a parade of watch repairers to advise them on the purpose for which people wear watches. The trial judge, as already seen, approached the task of determining the cause of the infant's injury by observing in a preliminary way that "a screen and a window have an inter-changeable function". She went on to observe:

[page 478]

If one assumes that a child can and will lean against a window and one will not accept the fact that a window will give way resulting in injuries to a child, under these circumstances, why must one arbitrarily accept the premises that a screen can give way if a child leans against it. In the opinion of the Court, there is no real distinction between a window and a screen in this regard.

With this analysis the Court of Appeal was in disagreement. With all due respect to the members of that Court it must be observed that the use made of the trial judge's description of the window screen in question has been misunderstood. The learned trial judge accepted the uncontroverted evidence of the plaintiff that the screen opened with the slightest touch. From that the trial judge proceeded to observe what surely must be obvious: that a screen should not be so installed as to swing open at the slightest touch. Surely a court at any level must be free to appreciate that screens or windows are intended in part at least to keep objects which might be placed on a window sill within the building, books or flower pots for example, for the protection of the public below as well as for the preservation of the articles themselves. For that reason, Her Ladyship concluded in part:

A window must be constructed with certain inherent strengths in order to permit it to resist a certain minimum of pressure.

From there the trial judge moved on to find the screen, on the unanswered evidence on behalf of the plaintiff, to be defective and rejected the argument of the owners that "a child injured as a consequence of a defective screen, should not be compensated".

Perhaps an equally digressive difference arose between the courts below by reason of the observation of the trial judge that "the defective screen of such window constituted a trap for Anastasia". This was part of a discussion concerning the attraction represented to a child by a combination of a low window looking out on a playground, with a radiator installed immediately below the window so as to afford a step or pedestal by which a child of about three feet in height could look out through the screen. When so perched on the

[page 479]

narrow radiator it would be natural to anticipate that a small child might rely on the screen as a restraint as it would indeed on a pane of window glass. When the screen because of its state of disrepair flew out at the slightest touch, the climbing child was suddenly unsupported and put in great danger, and so concluded the trial judge. It is in that sense, in my view, that the learned trial judge succinctly described the arrangement of the three features around the window as "a trap".

At least two of the learned justices on appeal appear to have associated the expression "trap" with the cases in the common law of torts. Indeed, the learned Chief Justice quoted at length from the City of Ottawa v. Munroe, supra, on that very issue in an action arising under the common law relating to occupiers' liability to invitees or licensees. The majority of the City of Ottawa court there concluded that a very different arrangement of structural features than we have here did not constitute a trap. The minority (the decision was three to two) concluded that whether the circumstances of that case constituted a trap was in any case for the trier of fact to determine and not for an appellate tribunal. In any case we are here concerned not with the common law but with the Civil Code.

The third difference between the courts below concerns the responsibility of the parents of the infant. The thief Justice, after reviewing the description by the trial judge of the arrangement of the window and the radiator, concluded that it was a question of fact as to whether the hypothesis of the trial judge was correct about the infant climbing on the radiator in order to get up to the window, and went on to observe:

[TRANSLATION]The condition of the premises was clearly apparent and, if it presented a danger, the danger was apparent and Anastasia's parents should have protected her from it.

On this point Lajoie J.A. dealt with the same subject:

[page 480]

[TRANSLATION]Little Anastasia managed to reach the window, and from there fall to the ground, because she momentarily escaped from supervision. I do not think that if the parents had seen their daughter climb onto the radiator they would have relaxed and let her do it in reliance on the safety and strength of the screen. This demonstrates that, in the mind of any reasonable man, the grating did not have the intended use now attributed to it.

The learned justice makes no express finding nor does he reach any clear conclusion that the parents by failure in their duty contributed to the child's injury. Owen J.A. does not deal with this point.

The learned trial judge, on the other hand, found:

They behaved as reasonable parents. At no time in fact were their children left alone or ignored. It is the opinion of the Court that the accident in question occurred through no fault whatsoever on the part of the Plaintiff or his wife. It did however occur through the negligence of the Defendant who neglected the obligations imposed upon it by law under article [sic] 1054 and 1055 of the Civil Code.

Nowhere in the judgments of the Court of Appeal is revealed the basis for the reversal of the finding on the evidence adduced by the trial judge as to the cause of the injury sustained. One or both parents were in the room with the child at all times. The window was open when the family arrived in their room at the beginning of their stay. It was a family hotel where children were welcomed in its advertisements. The defect in the screen was not apparent but hidden. The room was small and the bathroom was immediately adjoining and the door between the two rooms was open. According to the evidence there was no time in which the child was not within reasonable parental attention. Having regard to the authorities referred to above and the evidence to which reference has already been made, I can find no basis for the appellate reversal of the critical finding of the trial judge.

In granting judgment in favour of the plaintiff the learned trial judge found that the defendant had "neglected the obligations imposed upon it by law under article [sic] 1054 and 1055 of the Civil

[page 481]

Code". None of the judgments in the Court of Appeal make specific reference to any Code provision but the learned Chief Justice cited Leznek v. City of Verdun, [1940] S.C.R. 313 in which discussion arose concerning arts. 1053 and 1055. The respondent in argument in this Court rejects responsibility under arts. 1054 and 1055 and art. 1053 as well. Much of the argument before this Court turned around authorities advanced by both counsel in which certain doctrines of the common law were sought to be applied in the interpretation and application of these articles of the Civil Code. The relevant portions of these articles provide as follows:

1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

1054. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of persons under his control and by things he has under his care.

[…]

1055....

The owner of a building is responsible for the damage caused by its ruin, where it has happened from want of repairs or from an original defect in its construction.

Article 1053 is of course expressed in general terms, whereas the other two are explicit attributions of responsibility in application of the principle to defined circumstances, subsidiary in that sense to the general art. 1053. This article imposes liability on the simple basis of damage occasioned by fault, either active or passive. There is no need to stray into the concepts or vocabulary of any other legal system to interpret and apply the articles to the facts here. The owner and operator of a family hotel has by neglect or imprudence, but certainly by fault by omission, allowed persons to be exposed to the risk of damage by a failure of a screen to provide minimal restraint for occupants of this facility. The thrust of art. 1053 is both clear and general. Responsibility arises upon the happening of an injury to the plaintiff caused by the fault of the defendant whether that fault arises through imprudence, negligence or lack of skill. In Leznek v. City of Verdun, supra, the findings of the jury did not bring home the requisites of art.

[page 482]

1053 to the conduct of the defendant and hence the observation by Rinfret J., as he then was, that: "The effect of the jury's answers was to eliminate any responsibility under article 1053 of the Civil Code ... ". In that case this Court concluded in the final analysis that the jury found the plaintiff to be the author of his own misfortune by firstly "not taking sufficient precaution for his personal safety" and thereafter finding that the plaintiff had placed a part of the building of the defendant to a use "for which it was not intended". This took the Court to an analysis of art. 1055. In connection with that article the jury found firstly, as already mentioned, that the plaintiff had used a transom bar for a purpose for which it was not intended and the building owner was at fault in failing "to keep the building in a proper state of repair". Rinfret J. observed that in applying art. 1055 the building owner "could be held legally responsible only for failure to keep the building in a proper state of repair for the purpose for which it was intended. Such is the meaning of paragraph 3 of article 1055". Thus despite the fact that disrepair had undoubtedly been found, no responsibility arose under art. 1055 because the cause of the damage was not disrepair of the defendant's building but the act of the plaintiff in applying the window structure to a purpose not intended. Rivard J., in Bourassa v. Grégoire (1926), 42 Que. K.B. 154 at p. 159, discussed art. 1055 from the same viewpoint:

[TRANSLATION]Liability under art. 1055 is avoided if the ruin causing the accident is not the result of a defect in construction or a failure of maintenance, and where the accident must be attributed to fault by the victim.

This observation I make in passing by reason of the reference to art. 1055 in the trial judgment and the opaque reference thereto in the Court of Appeal below.

[page 483]

In the application of art. 1053 it is unnecessary in my view to engage the common law complexities of the doctrine of "trap" or the principles relating to the status of the claimant child and her parents here, as invitees or licensees of the building owner. Whatever may be the "owner's liability" under the common law, it is of no assistance here because the claim comes to this Court for decision under the articles of the Code above cited. It would be more appropriate and I would prefer to find responsibility here resident in the respondent by reason of art. 1053 without any encumbrance of reasoning by way of City of Ottawa v. Munroe, supra, or such authorities as Caza v. Clercs Paroissiaux ou Catéchistes de St. Viateur et al. (1935), 41 R. de J. 70 (C.S.); Morin v. Néron, [1945] Que. K.B. 625; Drury v. Lambert (1939), 77 C.S. 504. The application of the generality of that Code provision in contrast to the complexities of the common law is what the learned author had in mind when he stated:

[TRANSLATION] While the civil law, as the heir of Roman law, has completed its generalization of the concept of fault initiated by the lex Aquilia, the common law, the product of judicial decisions, favours the special rule.

Albert Mayrand, "A quand le trépas du 'trespasser'?" (1961), 21 R. du B. 1, at pp. 11-12.

Vide P. B. Mignault (1935-36), 1 U. of T. L.J. 104 at pp. 114-115: "Le code civil de la province de Québec et son interpretation". Further support for this preference is found in Le droit civil de la province de Québec where the learned author states:

[TRANSLATION] Neither the Quebec Civil Code nor the Code civil of France gives a definition of fault. In this lacuna there is in fact some degree of wisdom: it is precisely because no definition of fault exists that the courts have been able to develop an adaptable and flexible system for dealing with the real-life situations they daily encounter. It is an admirable policy which we can only applaud.   _

(Louis Baudoin, Wilson and Lafleur, 1953, at p. 759.)

Article 1053 of the Civil Code projects a general and flexible concept of fault which lends itself to

[page 484]

ready application, unencumbered by sub-rules and foreign concepts, to the infinite variety of circumstances which daily floods in upon the courts. The simple and durable standard of bon père de famille in my view is adequate to resolve the issue of fault in the circumstances arising in this appeal. For the reasons elaborated above I have, with the greatest respect to those who reach other conclusions, formed the view that the trial judge made such determinations in assessing responsibility here, and there appears to be no basis in the factual record for the Court of Appeal either to interfere with that result or to disregard the critical finding and thereby produce a contrary result.

I would therefore, for these reasons, allow the appeal and restore the judgment of the trial judge with costs to the plaintiff throughout.

Appeal dismissed with costs, ESTEY and McINTYRE JJ. dissenting.

Solicitor for the appellant: Jacob L. Rothman, Montreal.

Solicitors for the respondent: Lavery, O'Brien, Montreal.