Hôpital Notre-Dame v. Patry, [1975] 2 SCR 388

Supreme Court of Canada

Hôpital Notre-Dame v. Patry, [1975] 2 S.C.R. 388

Date: 1974-06-12

Notre-Dame Hospital (Defendant) Appellant;

and

Armand Patry (Plaintiff) Respondent.

1973: December 10; 1974: June 12.

Present: Fauteux C.J. and Abbott, Martland, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Prescription—Bodily injuries—Malpractice—X-Ray burns—Civil Code, Art. 2262.2.

The wife of respondent Patry was burned in the course of an X-ray treatment in 1960. The eight operations that she underwent between 1960 and June 1965 to remedy the burn proved unsuccessful. An action was instituted against appellant in April 1966, and at the trial the latter’s liability was admitted. Mrs. Patry died in 1967. The Court of Appeal affirmed the judgment of the Superior Court, allowing the action. Hence the appeal to this Court on the basis of the prescription of Art. 2262.2 of the Civil Code.

Held: The appeal should be allowed.

In order to support a distinction between contractual fault and delictual fault as a cause of action based on bodily injury, there would have to be some indication in the wording of Art. 2262.2 of the Civil Code of the intention of the legislature to this effect. The rule is that such a distinction may not be made where the law does not make it. Thus, the Quebec Court of Appeal held in Canadian Youth Hostels Assn. v. Bennet, [1973] C.A. 1090 that no distinction should be made between contractual and delictual or quasi-delictual liability in relation to trial by jury under Art. 332 of the Code of Civil Procedure, 1965. In the circumstances the Court is entitled to disregard past decisions and to rule on the basis of the text. Under Art. 2262.2 of the Civil Code, which applies in the case at bar, the right of action was prescribed when the proceedings were instituted.

Griffith v. Harwood (1900), 9 Que. Q.B. 299, appeal to S.C.C. quashed 2 P.R. 505; Caron v. Abbott (1887), M.L.R., 3 S.C. 375; Morissette v. Latudal (1897), 16 R.L. 486; Regent Taxi and Transport v. Congrégation des Petits Frères de Marie, [1929] S.C.R. 650, [1932] A.C. 295; McLean v. Pettigrew, [1945] S.C.R. 62; Canadian Pacific Railway Com-

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pany v. Robinson (1891), 19 S.C.R. 292, [1892] A.C. 481; Ross v. Dunstall, Ross v. Emery (1921), 62 S.C.R. 393; Canadian Youth Hostels Assn. v. Bennet, [1973] C.A. 1090; La Ville de Louiseville v. Triangle Lumber Co., [1951] S.C.R. 516; X v. Dame Rajotte, [1940] S.C.R. 203 reversing (1938), 64 Que. Q.B. 484; G. v. C., [1960] Que. Q.B. 161; Munro v. Pauly, [1956] R.L. 359; St-Hilaire v. S., [1966] S.C. 249; Village de la Malbaie v. Boulianne, [1932] S.C.R. 374, referred to.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], affirming a judgment of the Superior Court. Appeal allowed without costs.

L.P. de Grandpré, Q.C., for the defendant, appellant.

André Biron, Q.C., for the plaintiff, respondent.

The judgment of the Court was delivered by

PIGEON J.—This appeal is against a majority decision of the Court of appeal of Quebec, affirming a judgment of the Superior Court allowing respondent’s action in damages against the Hospital. The institution’s liability was admitted at the trial and the only defence raised in every court was the prescription by one year enacted in art. 2262 C.C., para. 2, respecting actions for bodily injuries. From the reasons of Taschereau J., I extract the statement of facts he took from respondent’s factum in the Court of Appeal.

[TRANSLATION] In 1960 Yvonne Marcoux, the wife of Armand Patry, went to Notre‑Dame Hospital in Montreal, as recommended by her physician, to get X-ray treatments.

In the course of one such treatment Mrs. Patry was burned. Between 1960 and 1965 plaintiff Mrs. Patry underwent eight (8) unsuccessful operations under anaesthesia, in an effort to remedy the burn suffered by her.

All attempts to heal plaintiff’s burn were abandoned in late June 1965. Late in April 1966 an action was instituted against defendant, claiming damages resulting from the X-ray dermatitis suffered by plaintiff.

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On July 8, 1967 Yvonne Marcoux, the wife of Armand Patry, died.

For convenience I will quote para. 7 of art. 2260 and arts. 2261 and 2262 of the Civil Code, as they stood when the action was brought:

2260. The following actions are prescribed by five years:

…

7. For visits, services, operations and medicines of physicians or surgeons and hospital services, reckoning from each service or thing furnished; …

2261. The following actions are prescribed by two years:

1. For seduction or lying-in expenses;

2. For damages resulting from offences or quasi-offences, whenever other provisions do not apply;

3. For wages of workmen not reputed domestics and who are hired for a year or more;

4. For hotel and boarding-house charges.

2262. The following actions are prescribed by one year;

1. For slander or libel reckoning from the day it came to the knowledge of the party aggrieved;

2. For bodily injuries, saving the special provisions contained in article 1056 and cases regulated by special laws;

3. For wages of domestic or farm servants, merchants’ clerks and other employees who are hired by the day, week or month, or for less than a year.

As is indicated by brackets in the original text of the Code, these provisions are all new law except for para. 7 of art. 2260 and para. 1 of art. 2262. The short time period of one year for matters falling within para. 2 of art. 2262 was fixed by the Legislature (29 Vict. c. 41, Resolution 82), in place of the five year period proposed by the codifiers in their third report, as follows:

103a. Civil actions for bodily injury are prescribed by five years if the case is not otherwise regulated by special laws. Actions for seduction and lying-in

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expenses are prescribed by the same period. These prescriptions are unqualified.

The French version of the Code referred, as the French version of the foregoing text, to “injures corporelles” for “bodily injuries”. In a 1930 statute (c. 98, s. 2) this expression was replaced by “lésions ou blessures corporelles». The English version of this paragraph was never amended. It should also be immediately noted that under art. 2267 the debt is absolutely extinguished in those cases, and no action can be maintained, so that, by the operation of art. 2188, this defence need not be raised by the pleadings.

In refusing to apply the one-year prescription period the Quebec courts have said that the case is one of contractual liability, and that para. 2 of art. 2262 applies only to liability for offences or quasi-offences. This view is based on earlier cases which must be examined. The first, and most important, is that of Griffith v. Harwood.[2] An appeal to this Court was quashed because the question was raised on a demurrer.[3]. In that case the Chief Justice, Sir Alexandre Lacoste, wrote the reasons for the judgment of the Court of Appeal the substance of which appears in the following three paragraphs (at pp. 306-307):

[TRANSLATION] The word «injures corporelles” contained in art. 2262 apply, in their literal sense, only to injury by action, as it is referred to by the older writers, that is to assaults causing bodily harm; however, in the view of some persons the phrase used in the English text, “bodily injuries”, imparts quite a different meaning to the section, and subjects to prescription by one year any damage resulting from bodily injury, whether produced by a delict or a quasi-delict. This is the interpretation given to this article by the Supreme Court in Canadian Pacific Ry. Co. & Robinson (19 S.C.R. 324). Though that judgment was reversed by the Privy Council, the latter upheld the decision of the Supreme Court on this point (1892 A.C. 486). The commissioners who drew up the Civil Code support the interpretation of the Supreme Court in their report, for they appear to consider as “injures corporelles” injuries resulting

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from accidents involving factory employees. In any case, it is unnecessary to decide this question, since in our opinion the fault alleged against the doctor is contractual in nature, and art. 2262 does not apply to contractual fault…

Though negligence or want of skill in the services a doctor is required to perform constitutes contractual fault, he is only liable for gross negligence, rather than the slight or very slight negligence for which an individual is liable in quasi-delict, and it is improper to apply the rule of delicts and quasi-delicts in place of that relating to contracts (Fromangeot, De la faute, pp. 89 et seq., 240 et seq.; 8 Huc, No. 419; Dalloz, Rep. see “Responsabilité”, 128-132; Supplément, 156-158).

In my view there is no doubt that Art. 2262 does not apply in this case. In civil law the word injury is a delict or quasi-delict, and a bodily injury must relate to a delict or quasi‑delict (Bouvier, Law Dict., vo. Injury in civil law).

In effect, the only reason given is in the last paragraph. Referring to the book cited (15th Ed., 1884), at the place indicated, one sees:

In Civil Law. A delict committed in contempt or outrage of any one, whereby his body, his dignity, or his reputation is maliciously injured; Voet, Com. ad Pand. 47, t. 10, n. 1.

This wording is almost identical with that found in editions prior to the drafting of the Code. Thus, in the 1848 edition one reads:

INJURY, in the civil law, in the technical sense of the term, is a delict committed in contempt, or outrage of any one, whereby his body, his dignity, or his reputation is maliciously injured. Voet, Com. ad Pand. lib. 47, t. 10, n. 1.

It is important to note that in this book one finds, upon looking up the term “civil law”, that the expression means Roman law. In the 1884 edition one reads:

Civil Law. This term is generally used to designate the Roman jurisprudence, jus civile Romanorum.

Furthermore, the book cited at the word “injury” shows that Roman law is undoubtedly meant. The title of Voet’s book is Commentari-

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us ad Pandectas. The passage referred to by Bouvier commences as follows:

1. As the law is subject to various interpretations (I. pen. et ult. ff. de justitiâ et Jure.) so the meaning of the word Injury is not always the same. (Princ. Inst. h.t.) But in this place the word Injury is used for Reproach (Libel), by many explained to be an offence against good morals, although it seems more correct to say that it is an act of insult against a free man, by which either his person, his honour or his good name, is defamed.

It should be noted that the Superior Court and the Court of Review had previously limited the application of art. 2262, para. 2 to the injuria of Roman law: Caron v. Abbott[4], Morissette v. Catudal.[5] These decisions were in fact cited by the respondent in Griffith v. Harwood, as may be seen at p. 305 of 9 Qué. Q.B.

This particular meaning of the word “injuria” in Roman law was undoubtedly not, at the time the Civil Code was drafted, the ordinary meaning either of “injuries” or of “injures”. In the 1848 edition of Bouvier’s Law Dictionary, at the beginning of a long article devoted to the word “injury”, one reads:

INJURY, a wrong or tort.

2.- Injuries are divided into public and private; and they affect the person, personal property, or real property.

3.-1. They affect the person absolutely or relatively; the absolute injuries are threats and menaces, assaults, batteries, wounding, mayhems; injuries to health, by nuisances or medical malpractices; those affecting reputation are verbal slander, libels, and malicious prosecutions; and those affecting personal liberty are, false imprisonment and malicious prosecutions.

It will be noted that the author mentions “medical malpractices”. Turning to the French authors, one finds in Dareau, Traité des Injures, 1785, Vol. 1, pp. 172-178, under the heading Des injures par action (“Of injuries by action”):

[TRANSLATION] Incompetence or ignorance does not exonerate from damages: thus a Doctor, a Surgeon,

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an Apothecary, a Midwife, are liable for faults resulting from ignorance; they are guilty of having taken upon themselves the practice of aspects of an art beyond their capabilities: though their good faith may protect them from the other penalties that courts of law may impose, nevertheless, as the detriment is the same to the person who suffers it, whether or not there has been good faith, damages are nevertheless due …

Obviously the word “injure” is no longer current in that sense in French, and this is undoubtedly what led the Legislature to replace it in 1930 by “lésions ou blessures”, at the suggestion of Anglin C.J., who said in Regent Taxi and Transport Co. v. Congrégation des Petits Frères de Marie[6], at p. 674:

…the words «for bodily injuries» of the English version are very inaptly rendered in the French version by the word «pour injures corporelles”, the meaning of the latter as intended, no doubt, being “pour lésions ou blessures corporelles”. While not of present importance, it is, perhaps, not out of place here to suggest legislative action in regard to the French versions of articles 2262 (2) C.C. and of article 1056 C.C. above referred to.

This cannot be considered as legislative approval of the construction placed on this provision in Griffith v. Harwood. The new French text shows, on the contrary, that in the English text the word “injuries” does not have the Roman law meaning, which is in keeping with the rule that statutes are to be construed according to the usual meaning of the words. That is not all. The decision of this Court was appealed to the Privy Council[7] where, ruling only on the question of prescription, it was said at p. 302:

The words in art. 2262(2) “for bodily injuries” cannot, their Lordships think, be read literally as they stand. There is no action for bodily injuries in the literal sense of those words. A man sues for his wages, but he does not sue for bodily injuries; he sues to recover the damages which he has sustained from the wrongful infliction of bodily injuries. Art 2262(2) must accordingly be read as if it referred to an action brought to recover damages sustained from the wrongful infliction of bodily injuries. Such a construction might (if the words “for bodily injuries”

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stood alone) still leave open the view that the only action referred to in art. 2262 (2) is an action brought to recover damages sustained from the wrongful infliction of bodily injuries upon the plaintiff in the action. But this view is, in their Lordships’ opinion, rendered untenable by the words which follow—namely, “saving the special provisions contained in art. 1056”. This reference to art. 1056 can only be made for the purpose of ensuring that the one year mentioned in art. 1056 shall prevail over the one year mentioned in art. 2262, thus showing that in the view of the framers of the Code the words “actions for bodily injuries” in art. 2262 would, of their own force, include an action the plaintiff in which was not the person upon whom the bodily injuries had been inflicted.

From this it follows that the present action, being an action to recover damages caused to the community by the wrongful infliction of bodily injuries upon the Brother, is an action for bodily injuries within the meaning of art. 2262(2) and was “prescribed by one year” under that article.

On this basis, should it be said that “the wrongful infliction of bodily injuries” refers only to injuries caused by delictual or quasi-delictual fault? In the study of the meaning of “wrongful” by this Court in McLean v. Pettigrew[8], nothing will be found that could warrant such a distinction. Respondent cites what was said by Taschereau J. in Canadian Pacific Railway Company v. Robinson[9], at p.324. However, if one reads the whole paragraph, including the portion on p. 325, and not merely the first sentence, it becomes apparent that exactly the contrary was meant.

Now, when art. 2262 decrees that actions for bodily injuries are prescribed by one year, it means all actions for bodily injuries under art. 1053 with, of course, the limitative words of the article itself, “saving the special provisions contained in art. 1056 and cases regulated by special laws”. The respondent, to support this contention that the prescription of two years under art. 2261 would have been the only one applicable to an action by Flynn, has based an argu-

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ment on the French version of art. 2262. The words “injures corporelles” therein, she said, do not apply to a quasi-offence, but merely to an offence. There is no doubt that the word “injures” in this connection, is generally taken to mean an injure par voie de fait or an offence, délit; yet, Dareau (Des Injures, 55), under the title “Injures par action”, treats of the damages caused by the negligence of a carriage driver, or by an unskilful surgical operation, and a case in our own courts, Wood v. McCallum (3 Rev. de Leg. 360), used the terms and «action d’injures» for malicious arrest of a person. Another case of Smith v. Binet (1 Rev. de Leg. 504), says: “The contents of a confidential letter are not the subject of an action d’injures”. Even in the Roman law, “The word injuria sometimes means damage”, says Thevenot-Dessaules (Dict, du Digeste, see “Injures”.)

The case concerned an action brought under art. 1056 C.C. by the widow of a workman who died as the result of an accident. He had survived the injuries leading to his death by more than a year, and it was argued that because he had not brought proceedings within that time, his widow’s right of action had been lost by prescription. In the context of that case, nothing but delictual or quasi-delictual liability was in issue. It would therefore be a mistake to see in the first sentence an intention to exclude contractual liability. This was not in question, Taschereau J. was only concerned to reject the distinction, advanced by respondent in reliance on Roman law, between bodily harm which qualified as “injury” and that which did not (see p. 301). A further perusal of the text demonstrates that, far from intending to exclude contractual liability, the learned judge included among injures corporelles (bodily injuries) which could be covered by the article, damages caused by an unskilful surgical operation, and in doing so relied on the opinion of Dareau. Accordingly it is clear that Griffith v. Harwood, which adopted the meaning of the word “injury” in Roman law, in fact departed from the interpretation given to Art. 2262, para. 2 by this Court in the Robinson case. This decision was reversed by the Privy Council, which held the prescription

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of Art. 1056 alone applicable[10]. However, that Court was at pains to say that it saw no reason to put in doubt the correctness of the opinion expressed on the application of art. 2262, para. 2 to the victim’s right of action. Though this opinion does not amount to a binding precedent, it is still to be weighed against the Griffith decision.

How then should we regard the following passage from the reasons of Mignault J. in Regent Taxi and Transport (at p. 679):

[TRANSLATION] Indeed, on the question of prescription, everything depends on the legal basis of the action. If we were dealing here with a breach of contract, in other words a contractual fault, I think that Art. 2262 C.C., relied on by appellant, would be inapplicable. However, I have observed that no contract existed between the parties in the case. The injured brother paid nothing for his trip, and respondent made no payment for his transportation. Nonetheless, the question of prescription can only be resolved when the Court has determined the nature of the remedy that may be claimed by respondent in the circumstances disclosed by the evidence.

Clearly this was merely an obiter dictum, as the question of contractual fault was not in issue. The suggestion that contractual liability might exist if the victim had been carried for hire is somewhat surprising. The great weight of judicial opinion rejects the theory of contractual liability for personal injuries in transportation. Further, Mignault J. stated in Ross v. Dunstall, Ross v. Emery[11] at p. 422:

The appellant’s plea of prescription is not made out, for prescription certainly cannot run before the injury was incurred and these actions were served within the year of the accident. Were this a redhibitory action claiming annulment of the sale, it would possibly be a fatal objection that the respondent Emery allowed the rifle to remain in his possession for three years without firing. But, as I take it, his action can stand, notwithstanding the contractual relations between the parties, upon article 1053 as well as upon articles 1527, 1528 C.C. The former article is applied every day in the case of passengers

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injured while travelling on railway carriages, although a contract is made between them and the railway company for their transportation. And I cannot assent to the broad proposition that where the relations between the parties are contractual there cannot also be an action ex delicto in favour of one of them. Very much depends on the circumstances of each particular case.

In any event, in order to support a distinction between contractual fault and delictual fault as a cause of action based on bodily injury, there would have to be some indication in the wording of art. 2262, para. 2, C.C., of the intention of the legislature to this effect. The rule is that such a distinction may not be made where the law does not make it. Thus, the Quebec Court of Appeal has just held (Canadian Youth Hostels Assn. v. Bennet)[12], that no distinction should be made between contractual and delictual or quasi-delictual liability in relation to trial by jury, under art. 332 of the Code of Civil Procedure, 1965, which is as follows:

332. If the amount claimed exceeds five thousand dollars, a trial before a judge and jury may be had in:

a. an action for the recovery of damages resulting from personal injuries;

b. an action under article 1056 of the Civil Code; and

c. an action for damage to corporeal property resulting from an offence or quasi‑offence.

If an action for the recovery of damages resulting from personal injuries covers contractual liability, why would it be otherwise for an action for bodily injuries? The only basis of distinction suggested in the case law is that which was adopted in Griffith v. Harwood, and why it must be rejected has been shown.

The article mentions as exceptions, besides art. 1056, cases regulated by special laws. As the Privy Council in Regent Taxi heavily relied on the reference to art. 1056, it appeared desirable to ascertain what were those special laws when the Civil Code was drafted. The only

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enactments I have found in public laws are s. 83 of the Railway Act (C.S.C. 1859, c. 66), s. 74 of the Joint Stock Companies—Transmission of Timber Act (C.S.C. 1859, c. 68) and s. 56 of the Act respecting joint stock companies for the construction of roads and certain other works (C.S.L.C. 1860, c. 70). They are of no particular significance. The special provisions which have established a short prescription for certain claims against cities and other municipal corporations are all subsequent to the drafting of the Civil Code. Those of the Cities and Towns Act have been considered in a case in this Court, La Ville de Louiseville v. Triangle Lumber Co.[13]. It was held that, due to the words “as the result of an accident”, they did not apply to claims for damages on account of a failure to perform a contract. As no such wording is to be found in art. 2262, para. 2, the decision in that case does not appear to be applicable to the case at bar.

For the sake of completeness it should be noted that in 1936 the Cour de Cassation decided to accept the theory of contractual liability of surgeons for malpractice[14], with the result that only thirty-year prescription is applicable. It is not necessary to consider the criticisms directed against that decision. In France, the short prescription for civil actions in delictual matters is governed by the provisions of the Code d’instruction criminelle (ss. 635-640). A distinction between contractual and delictual liability is therefore imperative with respect to prescription. This state of the law is quite different from that existing in Quebec, where prescription of civil actions is all governed by the Civil Code, under the title Of Prescription.

Turning now to Quebec cases subsequent to Griffith v. Harwood, the first found is the judg-

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ment of the Court of Appeal in X v. Rajotte[15]. The fault of the surgeon consisted in having left a swab in the patient’s abdomen, during an operation on November 8, 1932. The Court observed that it was not until mid-March 1934 that the plaintiff began to suffer pain in consequence, that the action was brought on June 18, 1934, and that accordingly no prescription had run at that time. It will be seen that the Court was merely following the rule in Ross v. Dun-stall as to the time when prescription begins to run, without touching on the interpretation of art. 2262, par. 2 C.C. Similarly, in G. v. C.[16], which involved an hemostatic forceps forgotten in plaintiff’s abdomen, the presence of the instrument was not apparent until a year before the action was commenced, and plaintiff has suffered no pain prior to that time. Casey J. was thus speaking obiter in expressing the view that because the liability was contractual in nature, only the thirty-year prescription was applicable. In the case at bar Casey J. concluded his dissenting opinion as follows:

On this narrow issue our jurisprudence is far from satisfactory. In these circumstances I am entitled to disregard it and to rely on the texts that I find quite clear.

For these reasons I would apply to this case the rule of C.C. 2262-2 and would maintain this appeal.

This observation seems to me quite proper in view of what we have just seen. For the sake of completeness it only needs to be mentionned that in the reports, besides the decision of the Court of Appeal referred to, there are two judgments of the Superior Court: Munro v. Pauly[17] and St-Hilaire v. S.[18] The first applies to one-year prescription, and the second holds to the contrary on the basis of G. v. C.

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Thus this is far from a consistent series of cases such as in Village de la Malbaie v. Boulianne[19]. Further, what Rinfret J. stressed, at p. 389, was that [TRANSLATION] «While the judicial decisions and the practice in the province of Quebec consistently maintained this position, the Municipal Code was entirely revised in 1916.» Nothing of this kind has happened here, and it must be said, with respect, that there is no reason to look upon the fact that the legislature did not see fit to amend the article in the same light as a complete revision.

In my opinion the right of action was prescribed when the proceedings were instituted. Accordingly the appeal should be allowed, the judgments of the Court of Appeal and of the Superior Court, set aside, and the action dismissed. Taking all the circumstances into consideration, no costs will be awarded.

Appeal allowed; no costs awarded.

Solicitors for the defendant, appellant: Tansey, de Grandpré, Bergeron, Lavery, O’Donnell & Clark, Montreal.

Solicitors for the plaintiff, respondent: Biron & Jutras, Drummondville.