Lessard v. Paquin et al., [1975] 1 SCR 665

Supreme Court of Canada

Lessard v. Paquin et al., [1975] 1 S.C.R. 665

Date: 1974-04-29

Donat Lessard (Defendant) Appellant;

and

Robert Paquin (Plaintiff) Respondent;

and

Gilles Cotnoir and Dame Marie Reine Morgan (Defendants) Respondents;

and

The Highway Victims Indemnity Fund (Intervenant) Mis-en-cause.

1974: March 29, April 1; 1974: April 29.

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

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

Motor vehicles—Collision on a bridge—Motorist with passenger travelling against flow of traffic—Passenger injured—Drivers found jointly and severally liable by lower courts—Conduct of second driver not at fault—Weight to be attached to findings of fact—Highway Victims Indemnity Act, R.S.Q. 1964, c. 232, s.3.

Respondent Paquin was injured when the car in which he was a passenger, driven by respondent Cotnoir and belonging to dame Morgan, collided with that of appellant Lessard. The accident occurred on a bridge with five traffic lanes, three of which were reserved for traffic travelling from south to north (Lessard) and two for traffic in the opposite direction (Cotnoir). Each of the five traffic lanes was occupied. Lessard was in the centre lane and travelling at a normal speed of 30-35 m.p.h. Cotnoir was travelling in the opposite direction at a speed of at least 50 m.p.h., and in order to overtake the two lines of traffic travelling from north to south, moved into the centre lane occupied by Lessard. The two motorists ahead of appellant swerved to the right in order to avoid Cotnoir, and their cars were involved in minor collisions with other cars on their immediate right; one of the two motorists was unable to avoid Cotnoir’s car completely, and the latter then collided with the car of appellant, who could not avoid him without swerving to the right and possibly causing a serious accident with other vehicles.

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A judgment of the Superior Court, affirmed by the Court of Appeal, found both drivers jointly and severally liable, ascribing 75 per cent of the liability to Cotnoir and 25 per cent to Lessard. Proceedings brought against dame Morgan under s. 3 of the Highway Victims Indemnity Act were dismissed, as the circumstances established theft. Lessard appealed from these two decisions, raising the question in his second appeal of the meaning to be given to the word “theft” in the context of the Act.

Held: The appeal with respect to respondent Paquin should be allowed; and the appeal with respect to dame Morgan should be dismissed for lack of substance.

Holding appellant liable would be to set up a standard of perfection for motorists that is not set by the Act. Section 3 of the Highway Victims Indemnity Act does not alter the law of delicts in the province of Quebec, in which the golden rule continues to be the conduct of the reasonable man in the circumstances of time and place disclosed by the evidence. That section only changes the burden of proof and the relationship between the parties, when the conduct of the person acting was faulty; the law of delicts is still governed by the basic principle of Art. 1053 of the Civil Code. The appellant should not be held at fault if, though not attaining the level of perfection of the two drivers ahead of him (who were able to avoid a major accident with Cotnoir), he acted reasonably in the circumstances. His only duty was to foresee probable eventualities, and not all possible eventualities. In any event there was no causal link between his actions and the injuries sustained by respondent Paquin.

The present intervention is not contrary to the practice of this Court not to vary the judgment a quo when it supports the trial Court on questions of fact. In considering the weight to be attached by an appelate court to a finding of fact, a distinction should be drawn between cases in which the issue depends upon the veracity of the witnesses, and those in which it depends upon the proper inferences to be drawn from truthful evidence. In the latter class of cases the original tribunal is in no better position than the judges of the appelate court.

Dominion Trust Company v. New York Life Insurance Co., [1919] A.C. 254; The Union Maritime and

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General Insurance Company Limited v. Alex Bodnorchuk and Steve Nawakowsky, [1958] S.C.R. 399; The North British & Mercantile Insurance Company v. Louis Tourville et al. (1895), 25 S.C.R. 177; and Thomas Gordon Walker v. Sadie Coates and The Public Trustee of Alberta, Administrator ad litem of the estate of Barry Alan Coates, [1968] S.C.R. 599, referred to.

APPEALS from judgments of the Court of Queen’s Bench, Appeal side, Province of Quebec, affirming judgments of the Superior Court. Appeal against Robert Paquin allowed; appeal against dame Morgan dismissed.

Guy Pépin, for the defendant, appellant.

Jean Provost, Q.C., and Denis Favreau, for the plaintiff-respondent.

Guy Desjardins, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—The action results from an automobile accident in which plaintiff‑respondent was seriously injured while a passenger in a car driven by Gilles Cotnoir and belonging to dame Marie Reine Morgan. This car collided with that of appellant Donat Lessard and the Superior Court, upheld by a majority of the Court of Appeal, concluded that the two drivers were jointly and severally liable, adding that as between them 75 per cent of the liability should be ascribed to Cotnoir and 25 per cent to appellant. Further, the proceedings brought against Marie Reine Morgan were dismissed, as in the unanimous opinion of the Quebec Courts the circumstances established theft, and so excluded liability under s. 3 of the Highway Victims Indemnity Act.

Of the facts accepted by the Superior Court and the majority of the Court of Appeal, facts which I accept entirely, I extract the following:

—the accident occurred on March 8, 1968, at about 7 A.M., on the Jacques Cartier bridge between Montreal and the south shore of the St. Lawrence, in good weather;

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—on the bridge in question there are five traffic lanes, three of which were clearly reserved for traffic travelling north, that is in the direction of Montreal; each of these lanes is almost twelve feet wide; for identification purposes they are numbered one to five inclusive from west to east, so that on the day concerned, at the time of the accident, lanes 1 and 2 were for north‑south traffic and lanes 3, 4 and 5 for south-north traffic;

—traffic was heavy in both directions, and for all practical purposes each of the five traffic lanes was occupied at the time and location of the accident;

—Lessard, alone in his car, was driving to work in Montreal and occupied the centre lane; he was behind a car driven by one Bourgouin who was himself driving behind a man named Klucinskas; the distance between each of the three cars was about 200 feet;

—the speed of Lessard, of the drivers ahead of him and probably of the cars driving in the two lanes to his right, was normal in the circumstances, about 30-35 m.p.h.;

—Cotnoir, at the wheel of a Volkswagen coming in the opposite direction, was travelling at a speed of at least 50 m.p.h., and probably 65 m.p.h., which was the figure registered by his speedometer after the accident;

—at that speed, Cotnoir had to overtake the two lines of traffic travelling south from Montreal, and he did so, by moving into the centre lane, reserved for traffic heading into Montreal;

—when Klucinskas saw this action by Cotnoir a few hundred feet away, he braked, sounded his horn and did his best to swerve to the right, into lane 4, where his car had a minor collision with a Weston truck, but could not by so doing entirely avoid Cotnoir, who struck the left rear corner of the Klucinskas car; these two collisions obliged Klucinskas to stop his car athwart lanes 2 and 3 of the Jacques Cartier bridge, and he was then hit a third time, this time by Bourgouin;

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—the latter, when he saw Cotnoir and saw what Klucinskas was doing, also squeezed to the right, partly entering lane 4, resulting in a minor collision between his car and that driven by one Chandonnet; finally, Bourgouin stopped on the Klucinskas car;

—Lessard in his turn saw the headlights of the Bourgouin car flash, and saw Cotnoir; he stated that until a fraction of a second before the impact, he did not know why Bourgouin was slowing down, and that he only saw Cotnoir when the latter was some ten or fifteen feet in front of him;

—while all this was taking place, Cotnoir continued to be more or less in traffic lane 3.

These facts first of all led the trial judge to find Cotnoir liable. On this point he said:

[TRANSLATION] It is also undisputable that the collision occurred in this centre lane, where Cotnoir had no reason to be, and was driving his car at a disorderly and illegal speed. He was obviously grossly negligent.

Gagnon J.A. of the Court of Appeal in his turn affirmed that [TRANSLATION] “Cotnoir was guilty of gross negligence”, and his conclusion was supported by his two colleagues, in particular Rinfret J.A., dissenting, who concluded that the negligence in question was the sole cause of the accident.

As to Lessard, the trial judge found him partly responsible for the accident. His views are summarized in the following paragraphs:

[TRANSLATION] It remains for us to consider whether Lessard also caused this accident. Two or three hundred feet ahead of him was the car driven by the witness Bourgouin, following that driven by the witness Klucinskas, at a distance of about two hundred feet according to the latter, but two car lengths away according to Bourgouin. The three cars were travelling at about 30 or 35 m.p.h., a normal and legal speed. Klucinskas seeing the Volkswagen move into the centre lane about 400 feet ahead of him slowed down, braked, sounded his horn, and finally swerved

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to the right slightly, grazing a truck also travelling to Montreal in the second lane. The Klucinskas car, still situated partly within the centre lane, was struck very lightly on the left rear fender by the Volkswagen, then on the right rear fender by a car following the aforesaid truck, and finally, having come to a full stop, by Bourgouin’s car, which was coming behind in the centre lane. Bourgouin, seeing the Volkswagen approaching 150 or 200 feet away, braked and swerved right. He was practically stationary when he was struck by the car of the witness Chandonnet, who was travelling in the second lane, and pushed onto the Klucinskas car. Cotnoir passed beside Bourgouin without hitting him and, continuing in the centre lane, collided with the Lessard car.

Lessard saw nothing of all that lead to this impact except the brake lights which appeared at the rear of the Bourgouin car when it braked. He saw the Volkswagen suddenly appearing five or ten feet away. Nonetheless he had had open vision at least for the distance separating him from Bourgouin, namely 200 or 300 feet. After the impact he was still, according to his estimate, 100 to 200 feet away from Bourgouin. In actual fact, he had his eyes glued to the Bourgouin car, and merely slowed down, without swerving like the cars ahead of him had done. The lane he was travelling in was almost twelve feet wide, which allowed room to meet the Volkswagen; and at any rate, the impact of the latter on the Klucinskas car was very slight, and Bourgouin avoided the Volkswagen completely, whereas the collision between the cars driven by the defendants was terrible and was the true cause of the injuries sustained by the plaintiff.

…

In law, the evidence does not show that the damage caused by Lessard’s car is not imputable to any fault on his part; on the contrary, it shows he did nothing to avoid it when he had time and room to do so.

This conclusion was concurred in by the Chief Justice of Quebec and by Gagnon J.A. The former expressed himself as follows:

[TRANSLATION] Section 3 of the Highway Victims Indemnity Act (R.S.Q. 1964, c. 232) applies. Donat Lessard thus had to show “that the damage is not imputable to any fault on his part”. He had to convince the Court that he had committed no fault, or that no causal link existed between the damage and the fault he might have committed.

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With respect for the contrary view, I am not convinced that the trial judge was wrong in finding that Lessard did not show he was free of fault. A series of small collisions and unusual manoeuvres occurred in front of him during the moments preceding the accident, not only in the centre lane but in the two adjacent lanes. Lessard saw nothing of all this. He explained by saying he was concentrating [TRANSLATION] “at all times on the Ford ahead” (J.R. p. 128, 1. 10). That is not a valid excuse. I can take judicial notice of the fact that the car ahead of him represented an obstacle which was at most seven feet wide and five feet high. That obstacle did not prevent him from surveying traffic in a good part of the centre lane and in the whole width of the two adjacent lanes. Moreover, the obstacle was not opaque. Part of what is happening ahead of a car can be seen through its windows from another car following it. In my view, therefore, the trial judge was correct in ruling that Lessard has committed a fault of inattention.

Has he shown an absence of any causal link between that fault and the damage? I am again forced to answer in the negative. The drivers of the two cars ahead of him managed to avoid a serious accident. Lessard did not show he could not have done so if he had been equally attentive.

As for Gagnon J.A., the key paragraph of his reasons is the following:

[TRANSLATION] The trial judge, discussing the nature of the negligence which he attributes to appellant, blames him for having merely slowed down, and not swerved as did the cars ahead of him. We know that on the morning in question traffic was heavy on the Jacques Cartier bridge, but the evidence did not show there were cars near that of appellant, in the lane being used by Corbeil and Chandonnet. Although Cotnoir was guilty of gross negligence and was approaching appellant at a high speed, I am wholly satisfied that the latter, taking into account the presumption in s. 3 of the Highway Victims Indemnity Act, has not shown that by being attentive he could not have avoided this severe collision with Cotnoir.

Rinfret J.A., for his part, indicates in a very detailed dissenting opinion that in his view Cotnoir alone should bear the responsibility for this accident. I agree with that conclusion.

With all due respect for the contrary opinion, I must observe that holding Lessard liable on

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these facts would be to set up a standard of perfection for motorists that is not set by the Act. Section 3 of the Highway Victims Indemnity Act does not alter the law of delicts and quasi‑delicts in the Province of Quebec, in which the golden rule continues to be the conduct of the reasonable man in the circumstances of time and place disclosed by the evidence. All that s. 3 changes is the burden of proof and the relationship between the parties, when the conduct of the person acting was faulty. This legislation does not make any other changes in the law of delicts and quasi-delicts, which is still governed by the basic principle of Art. 1053 of the Civil Code.

The question presented, therefore, is as to whether a reasonable motorist, in the circumstances disclosed by the evidence, would have been able to avoid the accident. It must be remembered that the combined speed of the Cotnoir and Lessard vehicles was close to 100 m.p.h., so that the time Lessard had to react and take action was only two or three seconds at the most. This time was much too short to allow him to correct the consequences of Cotnoir’s foolish behaviour, which he was under no obligation to anticipate, his only duty being to foresee probable eventualities, and not all possible eventualities.

The judgments a quo, and respondent, made a point of the fact that Klucinskas and Bourgouin, by their manoeuvres, were able to avoid a major accident with Cotnoir, and accordingly concluded that Lessard could and should have done the same. I do not think this is the test that should be applied. It is possible that Klucinskas and Bourgouin were better drivers than Lessard; it does not follow that the latter should be held at fault if, though not attaining the level of perfection of the two drivers ahead of him, he acted reasonably in the circumstances. Considering especially that, whenever several motorists are travelling behind each other and are suddenly confronted by a situation they could scarcely have foreseen, the chances of avoiding an accident diminish considerably as you move from the front to the rear of the line.

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In my view, therefore, the conduct of Lessard in the circumstances was not faulty. Even if it had been, the fault would not have had the necessary causal link with the accident in which Paquin was injured. It must be remembered that all five traffic lanes were occupied, and that any swerving to right or left was likely to create a situation just as dangerous as that resulting from a collision between the Cotnoir and Lessard cars. It need only be recalled that, by swerving to the right, Klucinskas hit the Weston truck which was in lane 4, and that Bourgouin also, by making the same manoeuvre, collided with the Chandonnet car, which was following the Weston truck. A swerve by Lessard might in turn have brought him into contact with the car on his right, and that contact would have been just as dangerous as the one which gave rise to the proceedings now before this Court. Lessard was certainly not required, in order to avoid the consequences of the emergency situation created by the gross negligence of Cotnoir, to create for others in his turn a situation of extreme emergency, in which he and innocent third parties might have suffered considerable damage.

This finding that Lessard committed no fault, and that in any event there was no causal link between his actions and the injuries sustained by respondent, is not contrary to the practice of this Court not to vary the judgment a quo when it supports the trial Court on questions of fact. In the case at bar, I accept in their entirety the facts found by the Quebec Courts, but I cannot concur in the conclusions they draw from those facts.

The principle at issue here has been stated on several occasions, in particular in Dominion Trust Company v. New York Life Insurance Co.[1]:

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In considering the weight to be attached by an appellate Court to a finding of fact, a distinction should be drawn between cases in which the issue depends upon the veracity of the witnesses, and those in which it depends upon the proper inferences to be drawn from truthful evidence. In the latter class of cases the original tribunal is in no better position than the judges of the appellate Court.

In Union Maritime and General Insurance Company Limited v. Alex Bodnorchuk and Steve Nawakowsky[2], at p. 413, Locke J. put it in another way:

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.

As soon as 1895 this Court, through Taschereau J., stated the following in The North British & Mercantile Insurance Company v. Louis Tourville et al.[3], at p. 195:

We do not fail to take into consideration, I need hardly say, that the fact of the two provincial courts having come to the same conclusion enhances the gravity of our duties, and imposes upon us, more than might perhaps be required under other circumstances, the strict obligation not to allow the appeal without being thoroughly convinced that there is error in the judgment. But, at the same time, we would unquestionably be forgetful of our duties if we did not form an independent opinion of the evidence, and give the benefit of it to the appellants if they are entitled to it.

See also Thomas Gordon Walker v. Sadie Coates and The Public Trustee of Alberta, Administrator ad litem of the estate of Barry Alan Coates[4], in particular Ritchie J., at p. 606:

I appreciate that this is an appeal in which neither the trial judge nor the Appellate Division of the Supreme Court of Alberta was prepared to draw an inference of gross negligence, but no question arises

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as to the veracity of the witnesses and this is accordingly a case which is governed by the language used by Lord Halsbury in Montgomerie & Co. Ltd. v. Wallace-James (1904) A.C. 73, at p. 75, which was affirmed by the Privy Council in Dominion Trust Co. v. New York Life Insurance Co. (1919) A.C. 254, at p. 257. Lord Halsbury said, in part:

…where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an Appellate Court.

Twice recently this Court has on questions of responsibility varied judgments a quo despite their concurrence with the trial judge. I refer to Dame Sylvio Hebert v. Conrad Lamothe et al[5] and to Janet Elizabeth Stewart et al. v. Charles Routhier et al[6].

I would accordingly allow the appeal as to respondent Paquin, and I would dismiss his action against appellant Lessard with costs in all courts. With regard to the appeal of Lessard against dame Marie Reine Morgan, which raises the question of the exact meaning to be given to the word “theft” in s. 3 of the Highway Victims Indemnity Act, it has no longer any substance in this Court at this time. But moreover we have been advised that the same question arises in appeals currently pending in the Quebec Court of Appeal between Paquin and dame Morgan; I therefore express no opinion on the point, and merely dismiss the present Lessard v. Morgan appeal with costs.

Appeal against Robert Paquin allowed with costs in all courts. Appeal against dame Morgan dismissed with costs.

Solicitors for the defendant, appellant: Pepin, Riopel & Barrette, Montreal.

Solicitors for the plaintiff, respondent: Provost, Favreau, Godin & Boileau, Montreal.

Solicitor for the defendant, respondent: M^e Maurice Roussel, Tracy.

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Solicitors for the defendant, respondent, dame Morgan: Desjardins, Ducharme, Desjardins, Tellier, Zigby & Michaud, Montreal.

Solicitors for the mis-en-cause: Gilbert, Magnan & Marcotte, Montreal.