Cusson v. Robidoux, [1977] 1 SCR 650

Supreme Court of Canada

Cusson v. Robidoux, [1977] 1 S.C.R. 650

Date: 1975-11-13

André Cusson (Defendant) Appellant;

and

Léopold H. Robidoux (Plaintiff) Respondent.

1975: June 12; 1975: November 13.

Present: Laskin C.J. and Judson, Ritchie, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Prescription—Medical or hospital responsibility—Retroactive effect of an amendment—Civil Code, arts. 2260a, 2261(2) and 2262(2)—Act to amend certain prescriptions, 1974 (Que.), c. 80.

Appeal—Supreme Court—Provincial Act subsequent to the decision of the Court of Appeal—Supreme Court Act, R.S.C. 1970, c. S-19, ss. 47, 50 and 67.

Respondent, who was injured in an accident which occurred on September 7, 1968, was treated by appellant, who performed a first operation on September 10 to repair a fracture of the left knee. However, as respondent had also sustained a fracture at the hip which was not diagnosed until the end of October, appellant promptly performed another operation to set the other fracture, but there were complications and he finally had to amputate the limb completely on January 13, 1970. Pleading professional negligence, respondent brought an action for damages in the Superior Court on August 28, 1970. The Superior Court and the Court of Appeal both held appellant liable, although the latter reduced the amount allowed. As this amount is no longer in issue, the Court directed counsel for the parties at the hearing that it would not rule on liability and that the only argument it would consider was that of prescription.

This question of prescription is based on two facts which have arisen since the decision of the Court of Appeal delivered on June 19, 1973. Appellant contends that pursuant to the rule established by this Court in Notre-Dame Hospital v. Patry, delivered on June 12, 1974 ([1975] 2 S.C.R. 388), it is the one-year prescription contemplated in art. 2262(2) of the Civil Code which applies. As, in the case at bar, injurious consequences became apparent in October 1968 and the action was brought in August 1970, he maintains that the remedy is therefore prescribed. Respondent, for his part, relied on the Act to amend certain prescriptions, passed by the Legislature of Quebec in December 1974, specifically s. 5, and contends that the case at bar, which

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was pending before a court as of January 1, 1975, is accordingly not subject to para. 2 of art. 2262 of the Civil Code.

Held: The appeal should be dismissed.

If the 1974 Act had not been passed, the action would have been prescribed when it was brought in August 1970. The fault was committed in September 1968 and the injurious consequences became apparent in the following month. The starting date for the prescription cannot be considered as the time when the limb had to be amputated in January 1970. However, if these provisions of the Act are applied, the appeal must be dismissed. By making para. 2 of art. 2262 inapplicable to actions pending before the courts, s. 5 in effect provides that only the two-year prescription or the thirty-year prescription may apply in the case at bar.

The only question is, accordingly, whether this Act of the Legislature of Quebec can be applied, seeing that, on January 1, 1975, the case was pending in this Court, not in any provincial court. The question is not whether the 1974 Act is unconstitutional: it is concerned with the prescription of rights of action, namely a matter of procedure in a provincial court, which is essentially within the jurisdiction of the Legislature of a province. It is the application of the Act which appellant is challenging and he contends that this Court has already ruled (in Boulevard Heights v. Veilleux (1915), 52 S.C.R. 185 and in K.V.P. Co. Ltd. v. McKie, [1949] S.C.R. 698) that the Supreme Court Act (now s. 47) does not allow this Court to take into account federal statutes passed after the Court of Appeal’s decision to deliver a judgment different from that delivered by the Court of Appeal.

In the case at bar, this Court is not asked to give a judgment different from that of the Court of Appeal; the 1974 Act is invoked to have the appeal dismissed. There is nothing in the Supreme Court Act limiting the grounds on which the Court may dismiss an appeal. Furthermore, it is doubtful that this Court was correct in holding in Veilleux and McKie that, in the Supreme Court Act, “the judgment… that the… [Court of Appeal] should have given” means the judgment it should have given on the facts before the Court below, rather than on the facts as they are at the time the case comes to this Court for hearing.

Boulevard Heights v. Veilleux (1915), 52 S.C.R. 185; K.V.P. Co. Ltd. v. McKie, [1949] S.C.R. 698, distinguished; Notre-Dame Hospital v. Patry, [1975] 2 S.C.R. 388; R. v. National Trust Co., [1933] S.C.R. 670; Livesley v. Horst Co., [1924] S.C.R. 605; Quilter

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v. Mapleson (1882), 9 Q.B.D. 672; Attorney General v. Birmingham, Tame and Rea District Drainage Board, [1912] A.C. 788; City of Montreal v. Hogan (1900), 31 S.C.R. 1; Burland v. City of Montreal (1903), 33 S.C.R. 373; Hill v. Hill (1903), 34 S.C.R. 13, referred to.

APPEAL from a decision for the Court of Appeal of Quebec which affirmed a judgment of the Superior Court, while reducing the amount allowed. Appeal dismissed with costs.

Jacques Valade, for the appellant.

Jean Provost, Q.C., and André Godin, for the respondent.

The judgment of the Court was delivered by

PIGEON J.—This appeal is against a decision of the Court of Appeal of Quebec, which reduced to $51,300 the amount allowed but otherwise affirmed the judgment of the Superior Court holding the appellant liable for professional negligence. Respondent was injured in a motor vehicle collision on September 7, 1968. He was treated by appellant, who performed a first operation on September 10 to repair a fracture of the left knee. Unfortunately, respondent had also sustained a fracture at the hip, which was not diagnosed until the end of October, when he was admitted to a convalescent hospital. Appellant promptly performed another operation to set the other fracture, but there were complications, and he finally had to amputate the limb completely on January 13, 1970.

The writ is dated August 28, 1970 and was served on September 2, 1970. The only point raised on this appeal is the one-year prescription contemplated in art. 2262(2) of the Civil Code. Concerning the professional negligence, there are concurrent findings in the courts below and the amount allowed is no longer in issue. After hearing counsel for the appellant, the Court directed counsel for the respondent to limit his argument to the question of prescription.

Following the decision of this Court in Notre-

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Dame Hospital v. Patry[1] (June 12, 1974), the Quebec Legislature passed a bill (1974, c. 80), which was assented to on December 24, 1974 and came into force on January 1, 1975. Sections 1, 3 and 5 of this Act read as follows:

1. The Civil Code is amended by inserting after article 2260 the following article:

“2260a. In matters of medical or hospital responsibility, the action in indemnity for bodily or mental prejudice caused to a patient is prescribed by three years from the date of the fault.

However, if the prejudice becomes apparent gradually, the delay runs only from the day on which it first appeared.”

3. This act shall have effect from 1 January, 1972 for a fault committed on or after such date or, as the case may be, for a fault committed before such date if the prejudice became apparent gradually and the first appearance occurred on or after such date.

5. Section 1 of this act and paragraph 2 of article 2262 of the Civil Code cannot be applied to a suit pending before a court on 1 January 1975 even if the cause of action originated before 1 January 1972.

Without these new provisions, the inevitable conclusion would have to be that the action was prescribed when it was brought. The fault was committed in September 1968 and the injurious consequences became apparent in the following month. It is legally impossible to consider the damage as having been sustained when the decision had to be made to amputate the irreparably damaged limb. Thus this is not a case in which the starting date for the prescription can be set less than one year before the action was brought. As pointed out in Patry (at p. 391), the Court must in such a case apply of its own motion the defence resulting from the prescription, in accordance with arts. 2188 and 2267 C.C. In order to affirm the judgment, the provisions of the 1974 Act cited above must therefore be resorted to.

On the other hand, it is clear that, if these provisions can be applied to the case at bar, the appeal must be dismissed. The Legislature clearly intended the Act to be retrospective. By making

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para. 2 of art. 2262 inapplicable to actions pending before the courts, s. 5 in effect provides that only the two-year prescription provided for in art. 2261(2), or the thirty-year prescription, may apply in the case at bar, and the action was brought within two years.

There is, however, a question whether this act of the Legislature of Quebec can be applied, seeing that, on January 1, 1975, the case was pending in this Court, not in any provincial court. Appellant’s contention is essentially that, because this case is to be decided under the provisions of the Supreme Court Act (R.S.C. c, S-19), which is a federal Act, this Court cannot take into account a provincial statute passed after the Court of Appeal’s decision of June 19, 1973. Appellant does not challenge the constitutional validity of the Act, only its application to this case, and he bases his argument on two cases: Boulevard Heights v. Veilleux[2], and K.V.P. Co. Ltd. v. McKie[3].

An important difference between those two cases and the case at bar should be mentioned at the outset. In Veilleux, the appellant had been condemned to refund money paid on the price of land that it had sold in breach of an Act prohibiting sales where no subdivision plan had been registered. The appellant relied on a provincial statute passed to validate those sales subsequent to the judgment of the Court of Appeal in seeking to have that judgment reversed in this Court. Similarly, in McKie, the appellant relied on an act passed after the judgment of the Court of Appeal, in seeking to have this Court substitute an award of damages for the injunction that had been issued. In both cases the subsequently passed retrospective statute was invoked to obtain in this Court a judgment different from that delivered originally. The basis for refusing to do so was that the federal statute creating this Court does not empower it to give a judgment that the Court of Appeal could not have given. Reference was made to what is now s. 47 of the Supreme Court Act:

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47. The Court may dismiss an appeal or give the judgment and award the process or other proceedings that the court, whose decision is appealed against, should have given or awarded.

In the case at bar, respondent invokes the 1974 Act, not to ask this Court to give a judgment different from that of the Court of Appeal, but to have the appeal dismissed. In my view, there is no doubt that this Court has power to do so. There is nothing in the wording of the Supreme Court Act to prevent the conclusion sought by respondent from being granted. It in no way limits the grounds on which the Court may dismiss an appeal. This does not mean that the Court may do so arbitrarily, but there are no special rules laid down in this regard.

Appellant did not contend that the 1974 Act was unconstitutional. Such contention would be untenable. The Act is essentially concerned with civil rights in Quebec. From a constitutional point of view I do think, however, that this legislation should be considered as in relation to procedure. It appears to have been established by R. v. National Trust Co.[4], that the principles of the common law are to be applied in classifying legislation for testing its constitutionality. According to these principles, the prescription of actions is a matter of procedure. In Livesley v. Horst Co.[5], a case in which the question was examined from the standpoint of private international law, Duff J. said (at p. 608):

The concept of procedure, too, is in this connection, a comprehensive one, including process and evidence, methods of execution, rules of limitation affecting the remedy.

However, even though this is regarded as a question of procedure, it should be noted that it is one of procedure in a civil matter in a court established by the Province, within the meaning of s. 92(14) of the British North America Act. The revelant fact governing prescription is the date of service of the writ issued by the trial court, the Superior Court. It is therefore a matter of procedure in a provincial court within the meaning of

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head 14 cited above, and is not in any way a matter of procedure in this Court. In passing the 1974 Act, the Legislature enacted that with regard to pending litigation, art. 2262(2) should not be taken into consideration as to the time within which the action had to be brought before the trial court. Whichever way it is examined, this is essentially a matter within its jurisdiction, and in my view, this is decisive.

I do not think I should refrain from expressing grave doubt whether this Court was correct in holding in Veilleux and McKie that, in s. 47 of the Supreme Court Act, “the judgment… that the… (Court of Appeal) should have given” means the judgment it should have given on the facts before the Court below, rather than on the facts as they are at the time the case comes to this Court for hearing. As Duff J. accepted in Veilleux (at p. 192), a court of appeal must decide on the basis of the situation existing when it renders its judgment, and not necessarily on the basis of the situation that existed when the trial judge ruled. Such was the decision of the English Court of Appeal in Quilter v. Mapleson[6], where as here a retrospective statute was in question. Jessel M.R. said at p. 676:

It was, in my opinion, intended to give appeals the character of rehearings and to authorize the Court of Appeal to make such order as ought to be made according to the state of things at the time…

Bowen L.J. said, at p. 678:

The rules were intended to enable the Court of Appeal to do complete justice. If the law has been altered pending an appeal, it seems to me to be pressing rules of procedure too far to say that the Court of Appeal cannot decide according to the existing state of the law…

This view was approved by the House of Lords in Attorney General v. Birmingham, Tame and Rea District Drainage Board[7], where Lord Gorell said at p. 802:

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In my opinion the Court of Appeal was entitled to make such order as the judge could have made if the case had been heard by him at the date on which the appeal was heard.

To support a different conclusion under the Supreme Court Act, it was said that this Act did not contain all the provisions of the Rule regarding judgments on appeal made under the Judicature Act. In the Rule, which is para. 4, Order 58, one finds:

… The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require …

In short, the reasoning in Veilleux was that because there is in our Act only the central part of this sentence, without the last element, it has an entirely different meaning. The validity of this reasoning is open to question, it seems to me. The duties of this Court are prescribed in a statute, not in rules of court. Generally speaking, this statute in no way follows the English Rules. Furthermore, it has for a long time contained provisions that are completely incompatible with the idea that the Supreme Court of Canada must give the judgment that the Court of Appeal should have given on the basis of the situation that existed in that Court. On the contrary, there are provisions that imply that sometimes a judgment should be rendered on the basis of a new situation, in other words, a judgment that the Court of Appeal could not have given.

Section 50 (added in 1880, c. 34, s. 1) authorizes the Court to “make all amendments as are necessary for the purpose of determining the appeal, or the real question or controversy between the parties.” The Court of Appeal for Quebec did not have this power until 1965, when it was conferred by the new Code of Civil Procedure. By virtue of this provision, this Court has on more than one occasion delivered judgments that the

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Court of Appeal of Quebec could not have given (for instance, City of Montreal v. Hogan[8], Bur-land v. City of Montreal[9] and Hill v. Hill[10]). Under what is now s. 67 of the Supreme Court Act (added in 1928, c. 9, s. 3), this Court may receive further evidence upon any question of fact. The only possible reason for this power is to allow the Court to give a judgment that the Court of Appeal could not have given.

Finally, it seems to me that in Veilleux and McKie the Court completely omitted to consider how the power of the federal Parliament to establish a general court of appeal might affect the power of the provincial legislatures to make laws in matters of property and civil rights, procedure in civil matters or any other matters within their constitutional authority. According to the interpretation apparently given to s. 47, the power of provincial legislatures to enact statutes having retroactive effect on pending cases concerning such matters would disappear completely for the whole time between the judgment of the Court of Appeal and the judgment of this Court. I fail to see why this should be considered a possible consequence of the right of appeal to this Court when, as we have seen, it is definitely not the consequence of the right of appeal in England. Should not s. 47 be construed so as to avoid this difficulty, since this can be done without doing violence to the wording?

Without expressing a firm view on this point, I am of the opinion that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Beauregard, Valade & Lasonde, Montreal.

Solicitors for the respondent: Provost, Favreau & Godin.