Métivier v. Cadorette, [1977] 1 SCR 371

SUPREME COURT OF CANADA

Métivier v. Cadorette, [1977] 1 S.C.R. 371

Date: 1975-06-26

Paul-Emile Métivier and Dame Simone Gagné Métivier Appellants;

and

Viateur Cadorette Respondent.

1975: February 19; 1975: June 26.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Motor vehicles — Negligence — Liability appor­tioned — Fault of third party who parked his car too close to that of the victim.

Appeal — Interpretation of the evidence — Principles governing the intervention of a first and second court of appeal.

The action arose from a car accident which occurred on a winter evening on a secondary road, and in which three vehicles travelling in the same direction were involved. The first, driven by appellant M, who was accompanied by his wife, also an appellant, was not able to climb a hill because of the slippery conditions and carne to a stop on the side of the road (the left-hand side). Respondent C then arrived on the scene and, in order to help M, parked his car ahead of the latter's, at a distance not greater than ninety-six feet, on the oppo­site side (the right-hand side). The third vehicle, driven by G (Gourde, the defendant at the trial level), arrived while the first two were thus stopped. G, who was driving very quickly, noticed the first two vehicles, braked suddenly, lost control of his car and ran into M's car. M, who was on the road signalling at the time, was pinned between the two cars and seriously injured, while his wife sustained minor injuries.

M and his wife obtained orders in the Superior Court against G and C jointly and severally. The Superior Court also held that two-thirds of the liability should be borne by G and one-third by respondent C. The Court of Appeal set aside this judgment with respect to C and held that he was not at fault. This is the only question before this Court: the amount of the damages, the liability of G, at least up to two-thirds, and the absence of fault of M are not at issue.

Held (Martland and Judson JJ. dissenting): The appeal should be allowed.

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Per Pigeon, Beetz and de Grandpré JJ.: The only question before this Court, as in the Court of Appeal, is the interpretation of the facts in the light of the evidence as a whole. In the case at bar, a study of the record and the reasons relied on by the Court of Appeal does not show that the latter was correct in substituting its own interpretation for that of the trial judge.

Having said this, the Court must take into account that it is settled law that where a judgment upon facts has been rendered by a court of first instance, and a first court of appeal has reversed that judgment, a second court of appeal should interfere with the judgment of the first appeal only if clearly satisfied that it is erroneous.

However, the first court. of appeal must take into consideration well-established precedents, namely: (1) where the credibility of witnesses is involved, except in extraordinary cases, the finding of the trial judge must not be set aside; (2) the interpretation of the evidence is left to the discretion of the judge who sees and hears the witnesses, and it is the duty of a court of appeal to respect the judgment of the judge who has these privi­leges unless it is satisfied that the latter was plainly wrong. In the case at bar, nothing in the evidence enabled the Court of Appeal to set aside the interpreta­tion of the trial judge.

Per Martland and Judson JJ.: The Court of Appeal properly held that respondent was not in breach of any duty in parking his car where he did, at a signal from appellant. The damages sustained by appellant were caused solely by negligence on the part of Gourde, the other defendant.

[Dorval v. Bouvier, [1968] S.C.R. 288; Maryland Casualty Co. v. Roland Roy Fourrure Inc., [1974] S.C.R. 52, distinguished; St-Pierre v. Tanguay, [1959] S.C.R. 21; Pelletier v. Skykofsky, [1957] S.C.R. 635; Latour v. Grenier, [1945] S.C.R. 749; Maze v. Empson, [1964] S.C.R. 576; Prudential Trust Company Limited v. Forseth, [1960] S.C.R. 210; Powell v. Streatham Manor Nursing Home, [1935] A.C. 243; Rousseau v. Bennet, [1956] S.C.R. 89, referred to.]

APPEAL from a judgment of the Court of Appeal of Quebec, reversing a judgment of the Superior Court. Appeal allowed and judgment of the Superior Court restored, Martland and Judson JJ. dissenting.

Paul Laflamme, for the appellants.

Robert Vallières, for the respondent.

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The judgment of Martland and Judson JJ. was delivered by

MARTLAND J.: (dissenting)—I agree with the unanimous judgment of the Court of Appeal.

What is in issue here is the duty owed by the respondent to the appellants Métivier. The appel­lants allege that the respondent was in breach of a duty owed by him to them in having parked his vehicle on the highway at a point which was too close to the place where the appellants' vehicle was stopped. It must be remembered that it was in response to a signal from the appellant, Paul-Emile Métivier, himself, that the respondent brought his vehicle to a stop at all. He did not stop his vehicle immediately opposite to that of Méti­vier. He proceeded beyond it and stopped on his proper side of the road at a distance variously estimated at two, three or four car lengths, up to 96 feet. He then went to give assistance to the appellants.

Should the respondent reasonably have foreseen the likelihood of injury to the appellants because he had stopped his vehicle where he did? To say that he should is to say that he ought reasonably to have foreseen the likelihood of a vehicle, travelling on that highway at a speed at least twice as great as what was reasonable under the existing road conditions, which would make it impossible for the driver, after he had seen Métivier some 250 feet away, to have stopped his vehicle before striking Métivier and the appellants' vehicle or to avoid striking them by keeping to his own side of the road. In my opinion the stopping of his vehicle where he did did [sic] not involve any breach of duty owed by the respondent to the appellants and the injuries suffered by the appellants were caused solely by the negligent operation of the other vehicle, driven by Gourde.

For these reasons, as well as those delivered by Turgeon J.A., in the Court of Appeal, I would dismiss this appeal with costs.

The judgment of Pigeon, Beetz and de Grandpré JJ. was delivered by

DE GRANDPRÉ J.—Appellants, the victims of a car accident, obtained orders in the Superior Court

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against Michel Gourde and Viateur Cadorette jointly and severally, for $60,482.81 and $1,300. The amount of damages is not at issue in this Court.

In making the order, the Superior Court held that two-thirds of the liability should be borne by defendant Michel Gourde and one-third by respondent Cadorette. Gourde is not a party to the appeal before this Court and his liability, at least up to two-thirds, was admitted in argument.

The conduct of appellant Métivier was also examined by the Superior Court and the Court of Appeal, and all the Quebec courts were in agreement that his conduct was not at fault in the case. This aspect of the proceedings was not raised in this Court.

The only question before this Court is the liabili­ty of respondent. Appellants ask that the judgment at first instance be reinstated, the Court of Appeal having held unanimously that respondent commit­ted no fault giving rise to liability.

The relevant facts are stated in the judgment a quo, and also in the judgment of the Superior Court. It is sufficient to summarize them here:

(1) the accident occurred on December 22, 1968, between 6:30 and 6:45 p.m., on range 5, a road that is eighteen feet wide, in Ste-Germaine:

(2) this is a secondary road, it is not lighted, and the accident obviously took place when it was dark;

(3) it was cold and the road was covered with a very slippery crust of ice and hard snow;

(4) the three vehicles involved in the accident were all heading north; vehicles travelling in this direction first have to go down a hill 250 to 300 feet long, proceed some distance at the bottom of the incline, where there is a bridge, and then ascent a long S-shaped hill; the accident occurred at the bottom of the first slope, before the bridge;

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(5) the first of these vehicles, driven by appel­lant who was accompanied by his wife, also an appellant, was not able to climb the hill to the north of the small valley because of the slippery conditions, and had to return to the bottom to try again; as the result of an error by the driver, the car came to a stop on the west side of the road, that is on its left-hand side, with the front of the car pointing north and the left rear corner stuck in a snow bank;

(6) in this position, the Métivier car was not in any way blocking the right-hand side of the road, for vehicles travelling from south to north;

(7) a few minutes later respondent arrived, having just left his father's house located on the east side of the road, some 200 feet south of the spot where Métivier had become stuck;

(8) respondent drove by the Métivier car without difficulty and since he heard the latter honk, stopped, reversed, was told that he could be of some help, and finally parked his car on the east side of the road on his right some distance ahead of the Métivier car; this distance will be exam­ined below, but in any case it was not greater than ninety-six feet;

(9) respondent and his companion then went over to the Métivier car;

(10) while Métivier and Cadorette tried to push appellant's car out, the wife of the latter was in the driver's seat and respondent's companion supervised the operation;

(11) at that time, four tail lights on the Cado­rette car and two on the Métivier car were on; in addition the right signal indicator on the Métivier car was flashing;

(12) Cadorette had been on the scene for approximately ten minutes when the headlights of the third car, belonging to Gourde, were noticed;

(13) while Cadorette and his companion climbed onto the snow bank, Métivier stood near the right rear corner of his car and signalled to Gourde;

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(14) Gourde applied his brakes at the top of the hill, lost control of his vehicle which, in the words of the trial judge [TRANSLATION] "took off like a sled" and, after striking the snow bank on the east side of the road, ran into the right rear corner of Métivier's car; the latter was pinned there and was seriously injured, while his wife sustained minor injuries.

The trial judge, it will be recalled, reached the following conclusions:

(a) Métivier committed no wrongful act;

(b) Gourde was the person principally respon­sible for the accident and should assume two-thirds of the damages;

(c) Cadorette was also at fault and should assume one-third of the liability.

With regard to the last point, the only one before this Court, the opinion of the trial judge is expressed in a very important paragraph:

[TRANSLATION] Although Cadorette left the motor of his car running, and although its lights were on, it is nevertheless true that Cadorette was familiar with the spot where he had stopped, because his parents lived only some 200 feet away. He knew that it was dark and that the road was icy. He was familiar with the long hill that cars had to climb and he knew that there was an incline before it that reduced drivers' visibility. He was able to judge that the distance between his car and the top of the incline was 300 feet at the most. Although the distance between the Métivier car and that of Cadorette was large enough to allow a car travelling very slowly to pass between them, it is nevertheless true that the position of Cadorette's car relatively close to Métivier's car constituted an obstacle given the time, place and road conditions. Cadorette realized the danger and was wise not to place his car right beside Métivier's. However, he did make an error of judgment.

In the part of his judgment concerning Gourde's liability, the trial judge added a few sentences that shed more light on the situation:

[TRANSLATION] It goes without saying that the sudden arrival of Gourde's vehicle at the top of the incline at very high speed, and his observation of the two vehicles, conditioned the action taken by defendant Gourde. His reflexes led him to brake suddenly; as a result he

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immediately lost control of his vehicle, which swerved to the right into the snow bank and then to the left. In short, as soon as Gourde became aware of the obstacle, his vehicle took off like a sled.

Turgeon J.A., speaking for the Court of Appeal, arrived at an entirely different conclusion, as shown in the following two extracts from his reasons:

[TRANSLATION] Appellant Cadorette submitted that the presence of his vehicle was completely unrelated to the accident and that it did not even occasion it. I think that he is right and that the evidence supports his claim.

I conclude that the presence of the Cadorette vehicle contributed in no way to the accident, of which it was not the direct and necessary cause, and that according to the evidence and in agreement with the trial judge, even if Cadorette's car had not been there, Gourde would still have lost control of his car by applying the brakes suddenly, and damages would have resulted. There is no relationship, that is no causal relationship, between the presence of Cadorette's stationary vehicle and the injury sustained by plaintiff-respondents.

I shall come back to the principles that the Court of Appeal must follow and those that this Court must follow in a question of fact, such as that before the Court. The Court of Appeal did not find that the trial judge made an error of principle, and no such error was submitted to this Court by respondent. The only question before this Court, as in the Court of Appeal, is the interpreta­tion of the facts in the light of the evidence as a whole.

The Court of Appeal rejected the interpretation of the trial judge on the following grounds:

(1) he erred in holding that the weight of evi­dence showed that respondent stopped his car two car lengths ahead of Métivier's car, whereas the distance measured by the traffic officer was ninety-six feet;

(2) the trial judge was not correct in stating that Gourde simultaneously saw the two cars and Métivier when he reached the top of the slope (incline);

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(3) he contradicted himself by stating on the one hand that the presence of the Cadorette car contributed to the accident, and on the other that [TRANSLATION] "even if Cadorette's vehi­cle had not been there, the slightest attempt to stop or to swerve to the right or left on Gourde's part would have been very difficult if not impos­sible to execute without total loss of control of the vehicle".

With respect, I do not share these views and I cannot accept that the Court of Appeal was cor­rect in intervening, in view of the principles stated in case law, particularly in Bouvier (infra). On the other hand, I am convinced that the judgment of the Court of Appeal is in error in its interpretation of the evidence in the record.

With regard to the first point, we need only point out that the measurements taken by the traffic officer were taken after Cadorette had moved his car. While it is true that he stated that he put it back in exactly the same spot as it had been when the accident occurred, this does not justify the finding that the weight of the evidence supports a distance of ninety-six feet, when all the eyewitnesses, with the exception of respondent, refer to two, three or at most four car lengths between Métivier's and Cadorette's cars at the time of the accident.

The second point on which the Court of Appeal disagreed with the trial judge must also be rejected. It should not be forgotten that when Gourde reached the top of the hill, he suddenly saw, at a distance of 250 or at most 300 feet in front of him, two stopped cars, one on the left and the other on the right-hand side of the road, both with their tail lights on, as well as a man, appellant Métivier, standing near the right rear corner of his car. At a speed of thirty-five or forty miles an hour, which Gourde admits, he was travelling at approximately sixty feet per second and it follows that his reac­tion was lightning-fast. It is a mistake to attempt to dissect this reaction and to transform the events into a slow-motion film. In my view, the trial judge was entirely correct in finding that on the basis of the evidence as a whole, both that presented by Gourde himself and that of his companions and

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the other eyewitnesses, the sudden application of the brakes was entirely the result of the circum­stances observed by Gourde.

In addition, this set of circumstances was seen by respondent himself as dangerous, because as soon as he saw the headlights on Gourde's car, he threw his companion into the snow bank and followed her there himself. The following are the two relevant extracts from his testimony during exami­nation by his counsel:

[TRANSLATION] Q. What drew your attention to that car?

A. Well, Jacqueline said, "There's a car coming." At that point I saw the lights; I grabbed Jacqueline and threw her into the snow bank and Paul-Emile was signalling.

Q. You say that you threw your friend into the snow bank. Did you stay on the road?

A. No, I climbed onto the bank too.

Q. You climbed up as well?

A. Yes.

In his reasons, Turgeon J.A. stated that they behaved in this manner because Cadorette and his companion realized [TRANSLATION] "that the car was moving fast". The two witnesses made no statement to this effect and their testimonies in no way suggest such an assumption.

We come then to the third point of disagreement based on the extract from the Superior Court judgment cited by Turgeon J.A. in the Court of Appeal. This extract is in the part of the judgment that pertains not to Cadorette's liability, but to Gourde's and the context clearly suggests that in the mind of the trial judge, it was a question of deciding that the speed at which Gourde was travelling was excessive and dangerous. If it were necessary to go beyond this, we need only cite the following extract from the testimony of defendant Gourde. This exchange occurred at the beginning of the cross-examination of this witness by Méti­vier's Counsel:

[TRANSLATION] Q. If I understand correctly, you say that it was Paul-Emile who had his arms .. . who was signaling, but you say that if he had not been there you would have tried to pass?

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A. Well, I might have, if he had not been there.

Q. Because Paul-Emile's car was there?

A. I don't know my reaction was that I could have.

Q. Could you have passed by as things were?

A. 1 could have made it but I would have hit the other car.

Q. You could not have avoided it? A. No.

Q. So you would have hit the car ahead of you, is that correct?

A. Yes.

Not only did the trial judge not contradict himself, but the evidence shows that under the circum­stances of time and place in the case at bar, the presence of Cadorette's car almost had to end up causing an accident.

Overall, as I have already mentioned, I do not think that the Court of Appeal was correct in substituting its own interpretation of the evidence for that of the trial judge. In the case at bar, the witnesses are all irreproachable and there is no doubt that they are telling the truth. They all live in the same region and they know each other well enough to use the first names of the other wit­nesses regularly in their testimonies. However, on reading the evidence it becomes apparent that they are people who are not accustomed to speaking in public. Experience has shown that such witnesses express themselves not only through their words, but also through their gestures, attitudes and silences. Attempts to recreate the atmosphere of the court-room merely by reading the translation of the shorthand notes are difficult if not impossible.

Having said this, I should like to adopt the remarks of Fauteux J., as he then was, speaking for the majority in Dorval v. Bouvier[1], at p. 293:

[TRANSLATION] In a case as that at bar, the rules that the first and second appellate tribunals are to follow are well known. Because of the privileged position of the trial judge, who sees and hears the parties and the witnesses and interprets their demeanour, it is an estab­lished principle that his opinion should be treated with the greatest respect by the Court of Appeal, and that the latter's duty is not to retry the case or to intervene to

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substitute its interpretation of the evidence for that of the trial judge, unless there is an obvious error in the reasons or conclusions of the judgment under appeal. However, as Brossard J.A. pointed out after citing the comments of Casey J. in Gagnon v. Gauthier, [1958] Q.B. 401, the reasons must be sufficiently clear that a Court of Appeal can assess their worth from a legal point of view. If the reasons are not clear, or if they are clear but are not valid, the Court must necessarily intervene, examine the record and form its own opinion on the evidence in it. It is clear that in the case at bar, the Court of Appeal considered these principles and applied them; it pointed out the error which, in its view, affected the judgment at first instance and on making a comprehensive examination of the evidence, formed a different opinion on the question of fact from that expressed in the judgment at first instance.

The principle that a second Court of Appeal must follow when it is required to review the judgment of a first Court of Appeal is also long established. It is expressed in Deniers v. The Montreal Steam Laundry Company (1897), 27 S.C.R. 537:

. it is settled law upon which we have often acted here, that where a judgment upon facts has been rendered by a court of first instance, and a first court of appeal has reversed that judgment, a second court of appeal should interfere with the judgment of the first appeal, only if clearly satisfied that it is errone­ous; Symington v. Symington L.R. 2 H.L. Sc. 415.

This is the rule followed in this Court and recently applied again in Pelletier v. Shykofsky, [1957] S.C.R. 635. Thus, to intervene in this case, this Court would have to be clearly satisfied that the judgment of the Court of Appeal is erroneous, either with regard to its grounds for intervention or its interpretation of the evidence in the record. After giving the matter serious consideration, I cannot form such an opinion.

In Bouvier, this Court refused to intervene on the grounds given in the following paragraph from the reasons of Fauteux J., at p. 292:

[TRANSLATION] In appeal proceedings, in order to obtain intervention by the Court of Appeal in this case, in which the dispute involves a mere question of fact, respondent pleaded in particular that in view of the serious grounds for doubting the truth of the testimony offered by Plaintiff's witnesses, the trial court could not

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conclude, as it did, that an error had been made by all the defence witnesses simply because they were con­tradicted by Plaintiff's witnesses, that other grounds were needed, and that neither the judgment nor the record showed any. The Court of Appeal held that in the case at bar this argument had sufficient merit to divest the trial judgment of the presumption established by the courts that greater credibility should be given to the party whose testimony has been accepted in preference to that of the other party, and to enable the Court to substitute its own interpretation of the evidence for that of the trial judge.

Thus in Bouvier, there were reasons for the inter­vention of the Court of Appeal. This was also the case in Maryland Casualty Co. v. Roland Roy Fourrures Inc.[2]

In my opinion, the situation is different in the case at bar. Of course, the Court of Appeal would have been correct in intervening if the case at bar had involved: drawing inferences from physical facts observed after the accident, St-Pierre v. Tanguay[3];

(a) drawing conclusions from clear facts to which a principle of law must be applied, Pelletier v. Shykofsky[4].

(b) Moreover, where the credibility of witnesses is involved, it is well-established precedent that, except in extraordinary cases, the finding of the trial judge must not be set aside: Latour v. Grenier[5]; Maze v. Empson[6].

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. The reason for this is simple and is found in Prudential Trust Company Limited v. Forseth[7], in which, at p. 217, Martland J. speaking for the whole Court cited the following extract from

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Powell v. Streatham Manor Nursing Home[8], at p. 249:

On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judg­ment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses: see Clarke v. Edinburgh Tramways Co., per Lord Shaw, 1919 S.C. (H.L) 35, 36, where he says: `When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evi­dence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divid­ed; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I—who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

Although in Forseth the question was one of credi­bility, the words I have emphasized also apply to the general interpretation of the testimony.

In short, this is what this Court held unanimous­ly in Rousseau v. Bennett[9], in which at p. 92

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Taschereau J., as he then was, 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.

There is no question of a presumption in the case at bar, but the principle is the same. There is nothing in the evidence that enables the Court of Appeal to set aside the interpretation of the trial judge, taking into account the factors mentioned in case law.

Thus I would uphold the appeal, quash the judgment of the Court of Appeal and reinstate the order made in Superior Court against respondent, the whole with costs in all courts.

Appeal allowed with costs, MARTLAND and JUDSON JJ. dissenting.

Solicitors for the appelants: Cliche & Laflamme, St-Joseph-de-Beauce.

Solicitors for the respondent: St-Laurent, Monast, Desmeules & Walters, Quebec.