Canadian Pacific Ltd. v. Gill et al., [1973] SCR 654

Supreme Court of Canada

Canadian Pacific Ltd. v. Gill et al., [1973] S.C.R. 654

Date: 1973-04-02

Canadian Pacific Limited (formerly Canadian Pacific Railway Company) and Louis Edward Deschamps (Defendants) Appellants;

and

Rajinder Kaur Gill, Administratrix of the Estate of Pal Singh Gill, otherwise known as Pall Singh Gill, Deceased, and the said Rajinder Kaur Gill (Plaintiff) Respondent;

and

Sewa Singh Aujla (Defendant) Respondent.

1972: November 29, 30; 1973: April 2.

Present: Martland, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence—Front-end loader struck from rear by automobile—Loader not adequately lighted at rear—Passenger in automobile killed—Liability.

Damages—Fatal accident—Claim under Families’ Compensation Act, R.S.B.C. 1960, c. 138—Whether pension payments under Canada Pension plan, R.S.C. 1970, c. C-5, deductible from damage award.

The defendant A was driving his automobile at night at 50 m.p.h. on what appeared to be a clear road when he suddenly perceived a vehicle which, for all practical purposes, was unlit only 100 feet in front of him. The said vehicle (a 17-ton front-end loader) was being driven by the defendant D in the coarse of his duties as an employee of the defendant CP Ltd. The evidence indicated that the one tail-light on the loader which was burning could only be seen at a distance of 50 to 100 feet to the rear rather than 500 feet as required by regulation.

Traffic was approaching down the lane running to A’s left, and realizing that he could not turn left to pass the vehicle in front of him in the ordinary course, he attempted to turn to the right and pass it on the right-hand shoulder which was ten feet wide and level. In the course of this manoeuvre, A struck the left side of his vehicle against the right rear corner of the counterweight on the front-end loader,

[Page 655]

and his vehicle then swung around and went forward about 128 feet to hit a telegraph pole which stood in the ditch off the shoulder. A gratuitous passenger in A’s vehicle, one G, was killed in the accident. G’s widow brought an action under the provisions of the Families’ Compensation Act, R.S.B.C. 1960, c. 138.

The trial judge held that A and D were equally to blame for the accident. He fixed the damages awarded to the plaintiff on behalf of herself and her children at $34,681 plus funeral expenses of $375. In arriving at the amount of $34,681, he deducted $21,318.42 which he found to be the value of the Canada Pension Plan benefits to which the plaintiff and her children became entitled as a result of the death of G. In the result, the trial judge ordered the defendants CP Ltd. and D to pay to the plaintiff 50 per cent of $34,681 plus $375 or $17,528.

On appeal, the Court of Appeal unanimously came to the conclusion that the finding of negligence against A could not be maintained and found that CP Ltd. and D were alone responsible. The majority were of the opinion that the present value of the pensions payable under the Canada Pension Plan should not be deducted from the damages to be awarded to the plaintiff and therefore by a majority the judgment of the Court fixed those damages at $55,999.42 plus $375 allowed as damages for funeral expenses. CP Ltd. and D appealed to this Court.

Held: The appeal should be dismissed.

On the question of liability, the Court agreed with the unanimous judgment of the Court of Appeal; on the question of quantum of damages, the Court agreed with the lower Court’s majority judgment. Section 4(4) of the Families’ Compensation Act provides that “In assessing damages there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance.” The pensions payable under the Canada Pension Plan are so much of the same nature as contracts of insurance that they also should be excluded from consideration when assessing damages under the provisions of that statute.

Parry v. Cleaver, [1970] A.C. 1, applied; Hewson v. Downs, [1970] 1 Q.B. 73; Grand Trunk Railway v.

[Page 656]

Beckett (1887), 16 S.C.R. 713; Commission des Accidents du Travail de Québec v. Lachance, [1973] S.C.R. 428, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Dryer J. Appeal dismissed.

Allan Findlay, Q.C., and Allan Graham, for the defendants, appellants.

Thomas Braidwood, Q.C., and Bruce Greyell, for the plaintiff, respondent.

William C. McConnell, for the defendant, respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for British Columbia pronounced on February 22, 1972. By that judgment, the said Court allowed an appeal from the judgment of Mr. Justice Dryer pronounced after trial on June 29, 1970. By that judgment, the learned trial judge had found damages in favour of the plaintiffs in the sum of $35,056 but had allowed to the plaintiffs an award of only 50 per cent of that amount having found that the late Pal Singh Gill had been a gratuitous passenger in an automobile owned and driven by one Sewa Singh Aujla, whom I shall call hereafter Aujla, and that the negligence of Aujla, had contributed 50 per cent to the accident which had resulted in the death of the said Pal Singh Gill.

The Court of Appeal for British Columbia unanimously allowed the appeal of the present respondents and found that there had been no negligence of the said Aujla which had caused or contributed to the accident resulting in the death of Gill. The Court of Appeal for British Columbia, in addition, by a majority judgment, increased the amount of total damages from $35,056 to $56,374.42 for the reasons which I shall discuss hereafter.

[Page 657]

A rather detailed statement of the facts is required in order to deal with the appeal in this Court.

On Sunday, March 10, 1968, the defendant Deschamps drove easterly on the Lougheed Highway in British Columbia a 17-ton front-end loader. Deschamps had taken this machine to the repair shops of the defendant company at Port Coquitlam to have some necessary repairs carried out and was returning the machine to a place called Suicide Creek. He drove easterly on the Lougheed Highway and proceeded at his maximum speed which was only 28 miles an hour. The Lougheed Highway is a main arterial road with a maximum speed limit of 60 miles per hour and is, on Sundays, a heavily trafficked road. This fact was known to Deschamps and was clearly illustrated to him during their trip for at least on a dozen occasions he was forced to pull off on the shoulder and stop his vehicle in order to let the traffic which had piled up behind him, and which could not pass him because of the amount of traffic running in the opposite direction on the highway, pass while he stood. Deschamps stopped at Ruskin, some three or four miles west of the scene of the accident to check his machine and also to permit the gears on the machine to cool off. It was getting dark when he left Ruskin and the accident took place some 15 minutes after he had left Ruskin. During that time on three more occasions Deschamps had pulled off to the edge of the road to permit traffic to pass and on the last occasion he pulled off and stopped opposite the mouth of a road running northerly from the Lougheed Highway and called the Cooper Road. Some five or six of the vehicles which had been held up by the slow moving heavy machine did pass him and then he returned to the highway and he testified took the vehicle up to its maximum speed although he had only travelled about 500 feet when the vehicle was struck from the rear by an automobile driven by the said Aujla and which contained passengers amongst them the late Pal Singh Gill who was killed in the impact. Aujla and those with him had driven eastward from Vancouver and were returning to their homes. Aujla knew the road

[Page 658]

very well having travelled it during the course of the previous two years on many occasions. From all the evidence, he was driving in a proper manner and no alcohol was involved. Aujla testified that he kept a very accurate check on his speed and that he had driven through a curve at about 30 miles an hour and then coming on a long stretch of straight road had increased his speed to 50 miles an hour and was driving at 50 miles an hour when the accident occurred. Aujla had his headlights on but had been forced by the fact that many cars were approaching him to cut the lights down to the lower beam. At that lower beam, Aujla had light only about 100 to 125 feet ahead of him. When travelling at 50 miles an hour, Aujla testified, he suddenly perceived ahead of him some dark object which he could not identify and which seemed to occupy the whole of the road and seemed to be standing still. Aujla realized that he could not turn to the left to pass this object in the ordinary course and therefore attempted to turn to the right and pass it on the right-hand shoulder which was ten feet wide and level. In the course of this manoeuvre, Aujla struck the left side of his vehicle against the right rear corner of the counterweight on the front-end loader, which I shall describe hereafter. His vehicle swung around and went forward about 128 feet to hit a telegraph pole which stood in the ditch off the shoulder. The vehicle was wrecked and the late Gill was killed in the accident.

Aujla swore that he never saw any tail-light and that the first notice he had of the presence of this loader on the highway was when his lights struck the dull metallic counterweight across the rear of the machine.

As I have said, the machine had a gross weight of 17 tons. Across the front end of it was

[Page 659]

the shovel or loader and when the machine was driven along a road that loader was lifted some 18 inches from the road and although tipped still obscured the driver’s vision for some distance ahead of the vehicle. Much more important, however, in the present case, was that across the rear of the vehicle and stretching for nine feet two inches was a great counterweight, the lower edge of this counterweight was one foot seven inches above the pavement. The counterweight was three feet six inches high so that the top edge of the counterweight was 61 inches above the pavement then some four inches above that level and, not on the corners of the counterweight, but 33½ inches toward the centre from the corner was a pair of tail-lights. These tail-lights were about four inches in diameter and stood a few inches above the top edge of the counterweight. Draped across these two tail-lights was a cable which obscured about one-half of the diameter of the right-hand tail-light. There were no clearance lights whatsoever. There was no light which should have illuminated the licence plate. As I have said, this broad stretch of steel nine feet two inches in length by three feet six inches in height was of a dull metallic colour.

After the accident, it was discovered that the left-hand tail-light on the loader was not lit and had either been the subject of a short circuit or some other mechanical fault. The driver Deschamps had had experience with the tail-lights burning out and had in his cab spare lamps for the purpose of replacing those which might burn out. Although he had been at the maintenance depot at Port Coquitlam he had not mentioned this fact to the mechanic. Deschamps testified that at Ruskin, some short distance west of the scene of the accident, he had noticed that both tail-lights were burning but certainly at the scene of the accident the left‑hand, and by far the more important light of the two, was not burning and the right-hand light

[Page 660]

was partially obscured by this cable. Deschamps, after the accident, replaced the lamp in the left-hand tail-light and it lit at once. The vehicle had been licensed under a special clause in the relevant provincial legislation but that legislation required that it being an overweight vehicle there had to be a special permit granted on each occasion on which it was taken on the highway. Deschamps had attempted to obtain such permit on the Sunday on which the accident occurred at the local weigh station as was the custom. The weigh station, however, was closed and he therefore proceeded without the requisite permit.

Many regulations were cited during the argument as to the requirements for a clearance light but such regulations would seem to have application to vehicles which were intended to be driven upon the highway and not to such a construction machine as that with which we are concerned in this appeal. The machine, however, was a motor vehicle and it is quite plain that Regulation 4.07(a) made under the provisions of the Highway Traffic Act requires:

4.07 (a) A motor-vehicle, trailer, semi-trailer, pole-trailer, and vehicle drawn at the end of a train of vehicles shall be equipped with a tail-lamp affixed to the rear which will emit red light visible from a distance of 500 feet to the rear.

And that para. (c) of the same regulation requires:

(c) A vehicle shall be equipped so that a rear licence-plate may be illuminated by white light emitted from the tail-lamp or a separate lamp so that in darkness the numbers on the licence-plate are legible from a distance of 50 feet.

There was no doubt that the licence plate was not illuminated in any way and I shall cite hereafter evidence which indicates that the one tail-light which was burning could only be seen a distance of 50 to 100 feet to the rear rather than the 500 feet required by the regulation.

[Page 661]

Branca J.A., in giving the main judgment in the Court of Appeal on the question of liability said:

In my judgment, if the loader would have had only one tail-light at the rear emitting as required by the regulations a red light visible for a distance of five hundred feet, this accident would never have happened, and the failure to have the loader so lit up was the sole and effective cause of the accident.

With this comment, I am in full agreement.

The evidence of one Bulloch upon the topic of the visibility of the single tail-light on the loader was most convincing. Bulloch was approaching the loader driving in the opposite direction, saw the bright lights on the front of the loader and then observed a flash of lights and a vehicle drive onto the shoulder between the loader and the ditch on the loader’s side of the road. He stopped in order to give aid and after he had done so walked down the road some 200 feet and then returned toward the loader, that is, he walked back of the loader in the direction from which it had come and approached the loader from the rear. As he did so, he observed that he could see no light whatsoever until he was some distance between 50 and 100 feet from the loader, that is, in my opinion, and in the opinion of all judges in the Courts below, a proof positive that this tail-light which, as I have said, was, by regulation, required to be visible 500 feet away, was not visible until a point not more than 100 feet to the rear of the vehicle. In reference to the negligence of Deschamps, Branca J.A. having recited much of the evidence to which I have referred and some in addition said:

On the other hand, the positive findings of negligence which the trial judge assessed against Deschamps, the driver of the loader, who was driving the same in the course of his duties as an employee of the Canadian Pacific Railway Company, were fully and completely justified and warranted upon the evidence. That negligence was the sole effective cause of the accident.

and Taggart J.A., giving concurrent reasons, said:

[Page 662]

On this aspect of the matter I have no hesitation in saying that the learned trial judge reached the right conclusion when he found that the respondent Deschamps was negligent and that that negligence was a cause of the accident.

Indeed, in this Court, counsel for the appellants commenced his argument by saying that he would not argue that the concurrent finding of negligence on the part of his client Deschamps should be disturbed.

The learned trial judge, however, found that the driver of the automobile in which the late Mr. Gill was a passenger, i.e., Mr. Aujla, was also negligent and that his negligence was 50 per cent responsible for the accident.

The ground of negligence outlined by the learned trial judge in his reasons was as follows:

The defendant Aujla, however, was also negligent in operating his automobile at an excessive speed bearing in mind the inadequate lookout he was keeping. He did not even see the tail-light according to his testimony. Mrs. Welsh’s evidence of undue speed by itself is not strong but it is if anything confirmed by the physical facts of the accident and his speed must be considered in relation to the lookout he was keeping.

The Mrs. Welsh to whom the learned trial judge refers was the driver of an automobile which approached the Lougheed Highway on the Cooper Road, that is, proceeding north to south, and she had stopped at the entry of the Cooper Road into the Lougheed Highway. She saw the loader stopped at the end of the Cooper Road on the shoulder of the Lougheed Highway and saw the loader start up. She observed the vehicle driven by Aujla approaching from the west and she described it as proceeding “very fast”. Mrs. Welsh admitted that when she made the observation of the speed of the Aujla car it was dark, although the learned trial judge would seem to have come to a different conclusion to which I shall refer hereafter and that her only opportunity to make that observation was when she looked down the Lougheed Highway to her

[Page 663]

right and saw the lights of the Aujla car approaching the intersection. She also admitted that she was a very inexperienced driver. I am firmly of the opinion that even the evidence of an experienced driver as to the speed at which an automobile approaches at night when his only opportunity of making the observation was from the headlights of the vehicle would be of doubtful validity. The evidence given by Mrs. Welsh under the circumstances which I have outlined is of even less weight and, with respect, I agree with Branca J.A. when he said, “the term ‘very fast’ of course contributed nothing in the realm of precision because it might well have meant precisely the speed at which Aujla said he was going”. The only other evidence as to the speed of the Aujla vehicle was that given by Aujla and by his passenger Saran. The latter was a passenger in the back seat of the vehicle and was simply of the impression that the speed might have been about 60 miles an hour. Aujla himself, on the other hand, was most precise in his evidence of speed and he based his evidence upon actual observation of his speedometer on many occasions as he drove along the road and his positive evidence that he was driving at only 50 miles an hour. It is to be noted that the maximum speed permitted on the Lougheed Highway was 60 miles an hour and there is no evidence apart from the words “very fast” used by Mrs. Welsh to show that Aujla ever exceeded that speed. In my view, and it was the view of the members of the Court of Appeal for British Columbia, he was driving at considerably less than that permitted speed.

The learned trial judge based his findings of fact upon the opinion that at the time that the accident occurred the prevailing conditions were of descending darkness and that visibility could decrease markedly in a short time. The Court of Appeal found and I am of the opinion, with respect, that they were certainly so entitled

[Page 664]

to find that this statement was in error and that in fact it was dark when the accident occurred. Those exact words were used by Mrs. Welsh, the witness upon whom the trial judge did chiefly rely and the evidence of all parties was that all vehicles upon the road had their headlights on. This error as to the amount of light would have affected the learned trial judge’s view as to the look-out which was being maintained by the driver Aujla. He was of the opinion that that look-out was inadequate and based his conclusion upon the fact that the driver did not even see the tail-light on the loader. The evidence of Bulloch as I have pointed out, was quite convincing that that tail-light was not visible until the vehicle approaching from the rear was something between 50 and 100 feet away from the tail-light. And when it was dark, as distinguished from approaching dark, then, with a tail-light of such limited visibility, the driver approaching from the rear could not perceive the presence of the loader until his own lights hit the rear of the loader. The driver Aujla had said that he saw the loader when he was about 100 feet to the rear thereof. That is almost exactly the illumination which would be cast by his own headlights on low beam and the headlights were on low beam at the time. The driver Aujla driving at 50 miles an hour would have had no chance whatsoever to have stopped his vehicle when his perception of the obstruction on his side of the road caused by the loader was when he was only 100 feet away from it. The driver Aujla attempted to go to his left to pass the loader but, of course, saw that the road was blocked by oncoming traffic and in a state of such sudden emergency then made the desperate attempt to pass the loader on its right, that is, on the shoulder of the road to the right of both vehicles.

[Page 665]

It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course. But, even apart from the well‑established principle, it is difficult to see what other possible step the driver Aujla could have taken under the circumstances which had occurred that night. Driving at 50 miles an hour on what appeared to be a clear road he perceived a vehicle which, for all practical purposes, was unlit only 100 feet in front of him with traffic approaching him down the lane running to his left. In my view, he could not possibly stop and he had no other course than attempt to go to the right of that vehicle, a course which he took and which he might have succeeded in had the great counterweight across the back of the vehicle been properly illuminated so that the edges of it could be perceived with exactness.

On all of this evidence, the Court of Appeal unanimously came to the conclusion that the finding of negligence against the respondent Aujla could not be maintained. Despite the fact that that finding of fact had been made by a trial judge who had heard the evidence and particularly in view of the fact that he had accepted the credibility of both the witnesses Mrs. Welsh and Mr. Bulloch, in my view, the Court of Appeal was justified in taking such a course. I need not cite authority in detail and it is sufficient to mention S.S. “Hontestroom” v. S.S. “Sagaporack”[2], and Powell v. Streatham Manor Nursing Home[3].

I would therefore dismiss the appeal against the unanimous judgment of the Court of Appeal for British Columbia in so far as it dealt with

[Page 666]

liability and affirm the disposition made by that Court in which it found that the appellants were alone responsible.

This, however, does not dispose of the appeal. The appellant had also appealed against the quantum of damage allowed by the Court of Appeal for British Columbia.

The learned trial judge found that the damages were $34,681 plus $375 special damages for funeral expenses. In arriving at that figure, the learned trial judge had noted that the widow Rajinder Gill and her five children were all receiving pensions under the provisions of the Canada Pension Plan the present value of which he found to be $21,318.43. It would appear, therefore, in arriving at the figure of $34,681 for general damages he had deducted from the damages which he would have found this present value of pension in the amount I have set out.

In the Court of Appeal for British Columbia, the majority, composed of Branca J.A. and Nemetz J.A., were of the opinion that the present value of the pensions payable under the Canada Pension Plan should not be deducted from the damages to be awarded to the respondent Gill and therefore by a majority the judgment of the Court fixed those damages at $55,999.42 plus $375 allowed as damages for funeral expenses. Taggart J.A., on the other hand, was of the opinion that the learned trial judge was correct in deducting from the damages which he had found the present value of the Canada Pension Plan.

The Canada Pension Plan is provided for by a statute of the Parliament of Canada which now appears as R.S.C. 1970, c. C-5, and which had previously appeared as 1964-65 (Can.), c. 51.

[Page 667]

Nemetz J.A. gave the reasons for the majority in coming to the conclusion that the pension payments under the Canada Pension Plan should not be deducted from the award of damages. In doing so, he relied most strongly on the recent decision of the House of Lords in Parry v. Cleaver[4]. That was an appeal dealing with a claim by a police constable for damages due to injuries and was not a fatal accident case as is the present one. However, the ratio used in the House of Lords Nemetz J.A. found and, with respect, I agree with him, was most convincing. In the House of Lords the majority of the Law Lords composed of Lord Reid, Lord Pearce and Lord Wilberforce were of the opinion that the pension payment should not be deducted. Lord Pearson and Lord Morris of Borth-y-Gest dissented. It is sufficient to quote two short extracts. Lord Reid said at p. 16:

What, then, is the nature of a contributory pension? Is it in reality a form of insurance or is it something quite different? [Example quoted is omitted.] The products of the sums paid into the pension fund are in fact delayed remuneration for his current work. That is why pensions are regarded as earned income.

But the man does not get back in the end the accumulated sums paid into the fund on his behalf. This is a form of insurance. Like every other kind of insurance, what he gets back depends on how things turn out. He may never be off duty and may die before retiring age, leaving no dependents. Then he gets nothing back. Or he may, by getting a retirement or disablement pension, get much more back than has been paid in on his behalf. I can see no relevant difference between this and any form of insurance. So, if insurance benefits are not deductible in assessing damages and remoteness is out of the way, why should his pension be deductible?

Lord Pearce said at p. 37:

[Page 668]

If one starts on the basis that Bradburn’s case (1874) L.R. 10 Ex.1, decided on fairness and justice and public policy, is correct in principle, one must see whether there is some reason to except from it pensions which are derived from a man’s contract with his employer. These, whether contributory or non-contributory, flow from the work which a man has done. They are part of what the employer is prepared to pay for his services. The fact that they flow from past work equates them to rights which flow from an insurance privately effected by him. He has simply paid for them by weekly work instead of weekly premiums.

Is there anything else in the nature of these pension rights derived from work which puts them into a different class from pension rights derived from private insurance? Their “character” is the same, that is to say, they are intended by payer and payee to benefit the workman and not to be a subvention for wrongdoers who will cause him damage.

The difficulty is in the present case we are not considering a claim by a person who was injured and who will be receiving certain insurance payments or certain pension or disability allowances we are considering an action under the provisions of the Families’ Compensation Act of the Province of British Columbia which is that province’s counterpart of the Fatal Accidents Act. As Nemetz J.A. pointed out, the remedy provided for under Lord Campbell’s Act to correct a manifest injustice formerly subsisting at common law was, in the earlier English decisions, much cut down by requiring the deduction of benefits which the widow had received from other sources. Therefore, the British Parliament, and the amendment was followed throughout the Canadian jurisdictions, in 1908 enacted remedial legislation to exclude insurance from being taken into account in the calculation of damages in fatal accident cases. The counterpart of that provision appears in s. 4(4) of the Families’ Compensation Act of British Columbia and provides:

[Page 669]

In assessing damages there shall not be taken into account any sum paid or payable on the death of the deceased under any contract of assurance or insurance.

In 1959, in Great Britain another amendment was enacted to also provide that pension fund benefits should not be taken into account. However, such a provision does not appear in the Families’ Compensation Act of British Columbia. With respect, I agree with Nemetz J.A. that although the 1959 statutory provision in the United Kingdom does not appear in the British Columbia statute, nevertheless the decision in Parry v. Cleaver may be used as assistance in determining whether the provisions of s. 4(4) of the British Columbia statute apply to permit the disregard of pension payments in the present circumstances.

In Hewson v. Downs[5], Park J. considered the question of whether a state disability pension must be deducted from the damages which were payable to a plaintiff seriously injured in an automobile accident. Park J. refused to make such deduction relying on the judgment of the majority of the House of Lords in Parry v. Cleaver, supra. It is true that the state pension in the United Kingdom is not an exact counterpart of the Canada Pension Plan but it is on a like basis, that is, persons in the class of pensionable persons are required by statute to make a contribution to the pension plan; the employer makes contribution, and then a pension is payable on retirement or upon becoming disabled, or a pension is payable to the widow and dependent children upon the death of the contributor. The plan, therefore, is an exact substitute for a privately arranged insurance policy made between the deceased person and an insurance company with the benefits payable upon the death or disablement of the insured.

[Page 670]

There is an element of risk to both the contributor under the Canada Pension Plan and to the Government which pays the benefits under the plan. It may well be that a person who is a contributor may make but a few payments and then become disabled and be paid pension amounts over a long period, on the other hand, the contributor may contribute for a very long number of years and then upon retirement die within a few months so that very little pension benefit is obtained.

There are, of course, many forms of insurance and surely one of them may be considered to be the social insurance now exemplified by the Canada Pension Plan. In so far as the word “contract” is concerned, there is, in result, a contract between the contributor to the Canada Pension Plan and the Government which, by virtue of the statute, exacts from such contributor weekly deductions from his wages. One must keep in mind the evident remedial character of s. 4(4) of the Families’ Compensation Act. I am therefore of the opinion that pensions payable under the Canada Pension Plan are so much of the same nature as contracts of insurance that they also should be excluded from consideration when assessing damages under the provisions of that statute.

I am fortified in this view by the consideration of two cases in this Court separated by about eighty years.

In Grand Trunk Railway v. Beckett[6], the Court considered an action for damages for the death of a person by the negligence of the railway. The very brief report includes this note at p. 714:

[Page 671]

The life of the deceased was insured, and on the trial the learned judge deducted the amount of the insurance from the damages assessed. The Divisional Court overruled this, and directed the verdict to stand for the full amount found by the jury. This was affirmed by the Court of Appeal.

Again, in Commission des Accidents du Travail de Québec v. Lachance[7], a judgment of this Court delivered on October 5, 1971, this Court considered an action by the widow of an employee of the Commission who had been killed while on duty by the negligence of another employee. It was part of the Commission’s appeal to the Court of Appeal of Quebec and again to this Court that the award in favour of the widow should be reduced by the amount of a pension in the sum of $96 per month which was payable to the widow. The source of that pension could have been under the provisions of the Quebec Workmen’s Compensation Act or the Pension Act of the Province of Quebec, R.S.Q. 1941, c. 13. The majority of the Court of Appeal confirmed the decision of the Superior Court in refusing to make a deduction because of such pension. The reasons for the majority were given by Brossard J.A., and the Chief Justice of Canada in giving judgment in this Court referred with approval to these reasons and to the rationale adopted, saying, at p. 433:

…the learned judge came to the conclusion that appellant could not rely, in support of a reduction or lessening of its responsibility, on facts which do not concern it, and which would have come into existence on the death of Fernand Chrétien in any case, independently and with no relation to the tortious nature of the event resulting in damage.

The Chief Justice of this Court continued:

In the case at hand I must say that, with all respect for the opposite view, I concur in the conclusions of the majority opinion.

And at p. 434 he said:

[Page 672]

If, on the other hand, as I believe, this is a pension paid to an employee’s widow under the Pension Act, it follows that being a contributory pension, it is not to be taken into account in assessing these damages, as was ruled by the Judicial Committee of the Privy Council in Miller v. Grand Trunk R. Co., [1906] A.C. 187.

For these reasons, I would dismiss the appeal of the appellants as to the quantum of damages as well as liability. In the result, the appeal will be dismissed as against the respondent Gill with costs in this Court. I see no reason to vary the judgment of the Court of Appeal and of the learned trial judge as well that the appellants here do pay to Gill 100 per cent of the costs.

In so far as the respondent Aujla is concerned, the situation is somewhat puzzling. Notice of appeal was served on the respondent Aujla. The respondent appeared by counsel and submitted a factum, yet the factum filed by the appellants does not request any variation to hold the defendant Aujla grossly negligent, the only situation upon which he should become liable for any portion of the judgment. The result of my judgment is that I would not find that the defendant Aujla was either negligent or liable. Under the circumstances, the only conclusion must be that the appellants must pay to the respondent Aujla his costs of this appeal.

Appeal dismissed with costs.

Solicitor for the defendants, appellants: F.E. Dent, Vancouver.

Solicitors for the plaintiff, respondent: Braidwood, Nuttall, MacKenzie, Brewer & Co., Vancouver.

Solicitors for the defendant, respondent: Thompson & McConnell, Vancouver.