Supreme Court of Canada
Royal Victoria Hospital et al. v. Morrow, [1974] S.C.R. 501
Date: 1973-06-29
Royal Victoria Hospital et al. (Defendants) Appellants;
and
Mary Morrow (Plaintiff) Respondent.
1972: June 19; 1973: June 29.
Present: Fauteux C.J. and Abbott, Hall, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Evidence—Statements by deceased—Hearsay evidence inadmissible—Res gesta—Parol evidence of an extra-judicial admission—Civil Code Arts. 1204, 1205, 1206, 1244, 2613—Code of Civil Procedure, Arts. 287, 293, 294, 318, 320, 404-447.
Respondent brought an action for damages against the Royal Victoria Hospital, where she was hospitalized, and against the estate of the doctor who had treated her there and had died seven years later. The trial having had to be suspended before the close of the evidence, the Superior Court, at the request of the parties, ruled on an objection made by appellants’ counsel during the examination out of court of respondent’s mother. This objection, to parol evidence of statements made by the deceased to respondent’s mother, was allowed by an interlocutory judgment of the Superior Court, which was reversed by the Court of Appeal. Hence the appeal to this Court.
Held: The appeal should be allowed in part.
The provisions to be considered are arts. 1204 and 1205 of the Civil Code. The rule excluding hearsay must be accepted in principle by deduction from the provisions of the Code of Civil Procedure referred to in art. 1205 of the Civil Code. The Code of Civil Procedure contains a number of provisions dealing with substantive law. That hearsay is generally inadmissible is implicit in arts. 287, 294, 320, 404 and 426-447. Otherwise the provisions requiring the examination of witnesses in open court under oath or solemn affirmation and the right of cross-examination could be evaded. How could any statement made out of Court be admitted when a deposition given in Court is inadmissible in another action if the necessary conditions are not fulfilled? Moreover, art. 318 was worded so that it would not be assumed that the discretion granted to the presiding judge for putting
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questions allows him to admit evidence which would otherwise be inadmissible.
As regards the exceptions to the rule against hearsay evidence, it would appear by virtue of arts. 2613 and 1206 of the Civil Code that in principle the exceptions allowed in English law must be recognized as applicable, in so far as there is no express provision in this regard or any incompatibility with an express rule.
The first exception is “res gesta”, the very matter in dispute. In the present case the two conversations between respondent’s mother and the doctor are not part of the facts giving rise to the right which respondent seeks to establish, those facts being the treatments which the doctor gave respondent with her own consent.
The other exception is for admissions of the party, which are mentioned in art. 1244 of the Civil Code. The first conversation was before the fact and so cannot constitute an admission.
With regard to the second conversation, the evidence should have been admitted under reserve of deciding, when rendering judgment on the merits, if it really constituted an admission. Article 1244 of the Civil Code permits parol evidence of extra-judicial admissions in cases where proof by testimony is admissible. The provision makes no exception for the case where the person who made the admission has since died. However, the question of admissibility must not be confused with that of probative value.
So far as admissibility of the evidence against the hospital is concerned, whether the doctor is to be considered a servant or agent will have to be decided by the Court only if liability is found to exist.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, reversing an interlocutory judgment of the Superior Court. Appeal allowed.
A. Paterson, for the defendants, appellants.
Gerald E. Sullivan, Q.C., and Roger Lacoste, Q.C., for the plaintiff, respondent.
The judgment of the Court was rendered by
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PIGEON J.—This appeal, brought by special leave of this Court, is against a majority decision of the Court of Appeal of Quebec which reversed an interlocutory judgment of Bourgeois J. in the Superior Court, allowing an objection to parol evidence of statements made by the deceased.
The plaintiff-respondent is a doctor. In early April 1960 she was hospitalized at the appellant institution suffering, it is said, from malnutrition. On May 6, she was transferred with her consent to an associated establishment known as the Allan Memorial Institute, under the care of Dr. Cameron, who treated her until June 2. She left the institution on June 17, 1960. No mention is made of subsequent treatment, or of any claim in subsequent years. Dr. Cameron died on September 8, 1967, and five days later, on September 13, 1967, plaintiff brought an action for damages amounting to $1,500,000 against his heirs or his estate, and against the hospital.
The trial having had to be suspended before the close of the evidence, counsel for the parties asked the judge to rule on an objection made by defendants’ counsel during the examination out of Court of plaintiff’s mother, Mrs. Clare Morrow. This objection was to questions in respect of two conversations with Dr. Cameron, one before her daughter entered the hospital, the other by telephone early in June 1960. The objection was only to any question pertaining to statements which Dr. Cameron allegedly made to Mrs. Morrow, as counsel for the appellants had no objection to evidence of what the latter says she herself told Dr. Cameron.
It should be noted that the record indicates that a witness examined by plaintiff’s counsel had introduced in evidence the notes made in the hospital records by Dr. Cameron. Both sides appear to have regarded these notes as admissible evidence, probably in view of the principles stated in the decision of this Court in Ares
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v. Venner, an Alberta case, and in the decision of the Court of Appeal of Ontario in Palter Cap v. Great-West Life, contrary to what appears to have been decided earlier in The Canadian Pacific Railway Company v. Quinn. In Dr. Cameron’s notes mention is made, under date June 2, 1960, of the objection by plaintiff’s family to further treatment, and of what he then said. The text reads as follows:
The family is unwilling for us to proceed further with treatment, feeling that she is so confused and disorganized that they are apparently unconvinced that she will get better. They have been warned that if she is not adequately treated, schizophrenia will almost certainly progress, and that she may have to be placed in long term hospitalization at a later date. They have also been informed that with this line of therapy she has got some chances of recovery, possibly as high as sixty per cent, this being what we ordinarily see with our cases. However, they have said emphatically that they do not wish us to carry on, and want us to keep her until such time as her confusion subsides and she can return home, and this will be done.
The trial judge allowed the objection, citing the opinions expressed by this Court in Price v. Dominion of Canada General Insurance Co., the judgment of Brossard J. in Marchand v. Héritiers Begnoche, and the majority decision of the Court of Appeal of Quebec in Southern Canada Power Co. Ltd. v. Conserverie de Napierville.
The majority in the Court of Appeal was made up of Owen and Montgomery JJ.A., the same judges who in the Southern Canada Power case would have admitted in evidence the valuation report of an adjuster who had died before the hearing. They observed that, in dismissing the appeal in that case, this Court had refrained from ruling on the question of admissibility of evidence, and they held that the objection to parol evidence in the case at bar should be
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dismissed. However, Brossard J.A., dissenting, felt he should adhere to the opinion which he had expressed in the Begnoche case.
The provisions to be considered are, in the first place, arts. 1204 and 1205 of the Civil Code, which read as follows:
1204. The proof produced must be the best of which the case in its nature is susceptible.
Secondary or inferior proof cannot be received unless it is first shown that the best or primary proof cannot be produced.
1205. Proof may be made by writings, by testimony, by presumptions, by the confession of the party or by his oath, according to the rules declared in this chapter and in the manner provided in the Code of Civil Procedure.
It may be noted that art. 1204 has no equivalent in the Code Napoléon. It is clearly of English origin. The second article is very different from the corresponding article of the Code Napoléon (art. 1316), which refers only to the subsequent sections of that Code, whereas our article refers to the Code of Civil Procedure. Now, the latter contains many important provisions, and it is necessary to consider first the effect of this reference. As to this Owen J.A. states:
This article indicates that the substantive rules regarding admissible evidence are declared in Chapter IX “OF PROOF” Title III “OF OBLIGATIONS” of the Civil Code and that such proof is produced in the manner provided in the Code of Procedure. It refers us to the Code of Procedure only with respect to the manner in which proof is to be made. It refers us to the Civil Code and not the Code of Procedure so far as substantive rules of evidence are concerned.
Procedural rules in the Code of Procedure such as those providing that a witness be sworn before testifying and that he be subject to cross-examination do not, in my opinion, constitute a basis from which we should infer a substantive rule of evidence providing that hearsay (written or oral) is as a general rule inadmissible in civil cases in the Province of Quebec.
With respect, I cannot agree with this reasoning, which implies an a priori decision that the
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content of the Code of Civil Procedure nowhere touches on substantive law, while it is well known that the Code, despite its title, contains a number of provisions dealing with substantive law. Such is the case, for instance, of injunctions, prerogative writs, and so on. In my view, in order to ascertain the effect of this reference one must examine the provisions referred to and see what may be deduced therefrom.
Under the heading “Examination of witnesses”, one finds, after art. 293, reproducing in substance what was before 1897 art. 1230 C.C., the following provision:
294. Except where otherwise provided, in any contested case the witnesses are examined in open court, the opposite party being present or duly notified.
This provision reproduces the text of the first paragraph of art. 344 of the 1897 Code of Procedure, which was essentially the same as art. 263 of the 1867 Code.
I feel it is impossible not to find in this article an implicit exclusion of hearsay evidence. If a person testifying before a judge may speak of what was said to him by the witness of the fact to be proved, then the latter will in effect have been examined in the absence of the judge and of the opposite party. This is well illustrated in Napper v. City of Sherbrooke. A bicycle racer alleged he had been injured through the negligence of a municipal policeman, who had failed to stop traffic in time. The trial judge allowed the policeman to relate in his defence what a motorist involved in the accident had said to him. Citing Justice Brossard’s decision in Marchand v. Héritiers Begnoche, we held unanimously that this evidence was inadmissible. By admitting hearsay evidence not only is the provision requiring examination of witnesses in open court evaded, but that requiring an oath or solemn affirmation as well, to say nothing of the right to cross-examine.
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This conclusion is strengthened by the wording of the exceptions which article 294 is subject to. Such is the case for art. 287, 404 and 426 to 437 which provide for the examination out of court of some witnesses before the prothonotary, a person authorized to administer the oath or a commissioner, always in the presence of the parties. Such is also the case for art. 320 (formerly art. 343), which reads as follows:
320. A deposition given at a former trial of the same action, or of another action founded in whole or in part upon the same cause of action, may be given in evidence if it is established that the witness who made it is dead, or is so ill as to be unable to be present, or is absent from the province, provided in all cases that the adverse party had a full opportunity to cross-examine.
On this question Owen J.A. states:
Because Art. 343 C.P. provided that evidence given at a former trial under oath and subject to cross-examination by the opposite party may be given in evidence at a subsequent trial it does not follow that the reverse is true, namely that any statement which is not given under oath and is not subject to cross-examination by the opposite party is not admissible as evidence.
With respect, I must point out that this reasoning ignores the rule that the legislature is presumed not to have spoken in vain. If the article does not mean that when the opposing party has not had a full opportunity to cross-examine, the deposition may not be admitted, the proviso is deprived of any meaning. Further, if, as I think, this enactment means that even a deposition given in Court is inadmissible in another action when the necessary conditions are not fulfilled, how are we to conclude that any statement made out of Court may be admitted? In my opinion Brossard J.A. correctly held that this provision of the Code of Civil Procedure implies the inadmissibility of hearsay as a general rule.
Moreover, this is how it has been generally understood since 1967, and the wording of the new 1965 Code, far from tending to invalidate
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this conclusion, supports it in two ways: first, by reproducing without significant alteration the provisions so interpreted; second, by introducing modifications implying that the exclusion of hearsay is maintained. For instance, a whole new chapter has been added, entitled “Perpetuation of Evidence”, which includes in arts. 438 to 447 provisions designed to enable depositions ad futuram memoriam to be taken from witnesses who it is feared will be absent or incapacitated when a legal proceeding which is not yet introduced is instituted. One may also note that in art. 318 (formerly art. 344), care was taken to add to the wording “the judge may ask the witness any question he deems useful” the words “according to the rules of evidence”. This was obviously done so that it would not be assumed that this discretion granted to the presiding judge allows him to admit evidence which would otherwise be inadmissible.
For these reasons, I feel that the rule excluding hearsay must be accepted in principle, and I arrive at this conclusion essentially by deduction from the provisions of the Code of Civil Procedure referred to in art. 1205 C.C., rather than by interpretation of the rule in art. 1204. It may be noted that Mignault states with regard to the latter article (Vol. 6, pp. 7-8):
[TRANSLATION] …it is clear that this rule should not be taken literally, as otherwise it would sanction hearsay evidence, since such evidence is often the best evidence available to the litigant.
One must now examine, therefore, what exceptions may exist to the rule against hearsay evidence. Because it was derived from English law, does this mean that it was adopted in all its aspects? The law to be interpreted is contained in a code; on the other hand, the codification process has left untouched a great deal of earlier law. Here, in addition to the general principle of art. 2613, there is a special provision in the second paragraph of art. 1206 which reads as follows:
1206. The rules declared in this chapter, unless expressly or by their nature limited, apply in commercial as well as in other matters.
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When no provision is found in this code for the proof of facts concerning commercial matters, recourse must be had to the rules of evidence laid down by the laws of England.
The wording of the second paragraph seems to imply that recourse may not be had to English law in civil matters in the absence of express provisions on a matter of evidence, but to read it in this manner would be to run counter to general principles. As Rinfret C.J. noted in Alliance des Professeurs Catholiques de Montréal, the maxim Expressio unius est exclusio alterius becomes inapplicable in such a case. Further, the drafters of the Code inserted among the provisions applicable in all cases certain rules taken from English law, such as art. 1204. It would be strange if these provisions had a different effect in civil and in commercial matters, when the first paragraph of art. 1206 states that they are equally applicable to both. It would appear, then, that in principle the exceptions allowed in English law must be recognized as applicable, in so far as there is no express provision in this regard or any incompatibility with an express rule.
The first exception to be considered is usually called res gestae, although Phipson, correctly in my view, designates it as res gesta, namely the matter in dispute. If one regards the exclusion of hearsay as the result of the rule that witnesses should be heard in open court, this exception ceases really to be an exception. When the words spoken are a part of the matter in dispute, as in the case of verbal defamation, one is not dealing with a deposition given otherwise than in open court but with the facts to be proven.
In the present case it is unnecessary to consider how far this may be taken. The two conversations between Mrs. Morrow and Dr. Cameron are not part of the facts giving rise to the right which respondent seeks to establish. The Facts giving rise to the right claimed are the treatments which Dr. Cameron gave respondent
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with her own consent, not the consent of her mother, who stated she had not been consulted on the matter.
The three decisions cited by Owen J.A. on this point are by no means conclusive in my view. For reasons previously stated, C.P.R. v. Quinn is of doubtful value. In any event, it concerns the admissibility not of statements regarded as part of the facts to be proven, but of notes in hospital records, which in my view is quite another matter. With regard to Bean v. Asbestos, this was a trial decision which adds nothing to the opinions of the English commentators on which it was based. Finally, as regards Little v. London & Lancashire Guarantee & Acc., this too was a trial decision in which the judge, after admitting under reserve evidence of statements of the deceased person, held that the question was not of great significance in the circumstances, as he said there was sufficient evidence without them.
The other exception to be considered is for admissions of the party. Here there is an explicit provision in the Civil Code, namely art. 1244:
1244. An extra-judicial admission must be proved by writing or the oath of the party against whom it is set up, except in the cases in which, according to the rules declared in this chapter, proof by testimony is admissible.
Could the statements in question be regarded as admissions within the meaning of the provision above cited?
As far as the first conversation is concerned, the answer is not doubtful. This was before the fact, and so cannot constitute an admission.
The question is obviously more difficult with regard to the second conversation. When she was interrupted by the objection, Mrs. Morrow was saying:
Q. Just tell us what you told him?
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A. What was the object of destroying my daughter’s brilliant brain. And he said …
Here, the objection raises the following question. Can the Court refuse a priori to consider as possibly constituting an admission a statement relating to the matter in dispute and allegedly made to a third party by the party himself? I fail to see how the Court could so decide, and I do not see how in such circumstances the Court could, without allowing the witness to repeat the statement which is sought to be proved, decide that such statement is not susceptible of being considered an admission. In a footnote to an article published in the Revue du Barreau entitled “The Extra-Judicial Admission” Me Alastair M. Watt said:
In these situations it would seem preferable to take the evidence under reserve or to let the witness answer with the jury excluded as otherwise there will always be some doubt as what the witness was going to say, and judgment must therefore be based largely on conjecture.
With respect for the trial judge, I see nothing against this practical suggestion in the decision rendered by this Court in Price v. Dominion of Canada General Insurance. The extreme caution which must be exercised before admitting evidence of a statement made by a deceased person does not prevent taking the deposition under reserve, when the case is heard by a judge alone and there is a possibility that such a statement, the contents of which are not known, constitutes an extra-judicial admission.
Of course, if the deposition is admissible it presents an extremely delicate problem when it relates to a conversation held without witnesses with a deceased person. Here the difficulty is compounded by the fact that the witness is the plaintiff’s mother, and also by what she said herself concerning her state of mind at that time: “…my reaction was terrible, if you want to know, it was terrible. I wanted to go up there and kill them”. The fact remains that, as Owen
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J.A. points out, the question of admissibility must not be confused with that of probative value. An express provision, that of art. 1244 of the Quebec Civil Code, permits parol evidence of extra-judicial admissions in cases where, as in the present case, proof by testimony is admissible. There is a decision of this Court which is clear on that point: Grimaldi v. Restaldi. The provision makes no exception for the case where the person who made the admission has since died.
I therefore conclude that with regard to the second conversation, the evidence should have been admitted under reserve of deciding, when rendering judgment on the merits, if it really constituted an admission.
One final question remains to be considered. Was this evidence also admissible in the same manner against the other defendant, the hospital? This raises the controversial question of admissions by a servant or agent (General Exchange Insurance Co. v. Simard Frère & Cie; Bourgoin v. Sullivan; Major v. Rodrigue; Maillet v. Perras.). In the case at bar, we do not yet know if Dr. Cameron is to be considered a servant or agent. Plaintiff so contends in her pleadings, but it is a question which the Court will decide on the merits only if liability is found to exist. It does not seem appropriate to pursue this matter further at the moment.
On the whole, I would allow the appeal and vary the judgment of the Court of Appeal to restore the judgment of the Superior Court allowing the objections to evidence of statements allegedly made by Dr. Cameron to Mrs. Clare Morrow, save as to the statements allegedly made in June 1960 in respect of which the objection must be reserved for decision on the merits. Appellants shall be entitled to costs in this Court but with only one counsel fee.
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Appeal allowed with costs.
Solicitors for the defendants, appellants: McMaster, Meighen, Minnion, Patch & Cordeau, Montreal.
Solicitor for the plaintiff, respondent: Gerald E. Sullivan, Montreal.
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