Held: The appeal should be dismissed.
The Government of Quebec cannot be held liable for the harm caused to the child by administration of the vaccine. Although in the case at bar recognition of the existence of an obligation independent of any fault would be an excellent thing, no such obligation exists in Quebec civil law. Extrapolation of several provisions of the Civil Code and the ancient law provide no basis for a general principle of the civil law that damages suffered or costs incurred by an individual for the benefit of the community must be borne by the latter. Article 1057 C.C. also provides no legislative support for this principle. That article exists only to explain art. 983 C.C. by giving examples of obligations resulting solely from the operation of law. It does not have the effect of making fortuitous events ‑‑ the danger of an epidemic in the case at bar ‑‑ a sixth and new source of obligations.
So far as the theory of risk is concerned, it is not accepted in Quebec, where the system of civil liability is based on proven or presumed fault and not on risk.
Cases Cited
Cité de Québec v. Mahoney (1901), 10 Que. K.B. 378; Guardian Assurance Co. v. Town of Chicoutimi (1915), 51 S.C.R. 562; Dalbec v. Cité de Montréal (1902), 22 C.S. 23; Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67; Katz v. Reitz, [1973] C.A. 230; Simard v. Soucy, [1972] C.A. 640; Trib. Adm. Strasbourg, November 9, 1976, Engel v. Faculté de médecine de Strasbourg, D.1977.660; Trib. Adm. Strasbourg, November 9, 1976, De Gail v. Faculté de médecine de Strasbourg, D.1977.660, referred to.
Statutes and Regulations Cited
Civil Code, arts. 11, 407, 417, 420, 423, 428, 478, 575, 983, 1046, 1052, 1057, 1539, 1546, 1595, 1767, 1768, 1775, 1804, 1812, 1813, 1973, 1980, 1981, 1982, 1994, 1996, 2007, 2009, 2383, 2385, 2387, 2399, 2402, 2410, 2411, 2412, 2427, 2445, 2450, 2451, 2677, 2680, 2691, 2692, 2709, 2712 (formerly 2613).
Authors Cited
Aboaf, J. L’état de nécessité et la responsabilité délictuelle, Paris, L.G.D.J., 1942.
Baudouin, J.L. Les obligations, Yvon Blais Inc., Montréal, 1983.
Demers, C. Traité de Droit civil du Québec, t. 14, Montréal, Wilson & Lafleur, 1950.
Faribault, L. Traité de droit civil du Québec, t. 7‑bis, Montréal, Wilson & Lafleur, 1957.
Haanappel, P.P.C. "Faute et risque dans le système québécois de la responsabilité civile extra‑contractuelle", (1978) 24 McGill L.J. 635.
Mayrand, A. "L'abus des droits en France et au Québec", (1974) 9 R.J.T. 321.
Mazeaud, H. & L. et A. Tunc, Traité théorique et pratique de la responsabilité civile délictuelle et contractuelle, 6e éd., t. 1, Paris, Montchrestien, 1965.
Mignault, P.B. Le droit civil canadien, t. 1, Montréal, Théorêt, 1895.
Mignault, P.B. Le droit civil canadien, t. 5, Montréal, Théorêt, 1901.
Mignault, P.B. Le droit civil canadien, t. 9, Montréal, Wilson & Lafleur, 1916.
Morel, A. L’évolution de la doctrine de l’enrichissement sans cause, Thémis, 1955.
Nadeau, A. et R. Traité pratique de la responsabilité civile délictuelle, Montréal, Wilson & Lafleur, 1971.
Pallard, R. L’exception de nécessité en droit civil, Paris, L.G.D.J., 1949.
Ripert, G. Droit maritime, 4e éd., t. 3, Paris, Rousseau et Cie, 1953.
Rodière, R. Droit maritime, 8e éd., Paris, Dalloz, 1979.
Rodière, R. Traité général de droit maritime, t. 4, Paris, Dalloz, 1972.
Savatier, R. «L'état de nécessité et la responsabilité civile extra‑contractuelle» dans Études de droit civil à la mémoire d’Henri Capitant, Paris, Dalloz, 1939.
Savatier, R. «Responsabilité de l'état dans les accidents de vaccination obligatoire reconnus imparables» dans Mélanges offerts à Marcel Waline, t. 2, Paris, L.G.D.J., 1974.
Savatier, R. Traité de la responsabilité civile en droit français, 2e éd., t. 1, Paris, L.G.D.J., 1951.
Tancelin, M. Des obligations: contrat et responsabilité, Montréal, Wilson & Lafleur/Sorej Ltée, 1984.
Taschereau, R. Théorie du cas fortuit et de la force majeure dans les obligations, Montréal, Théorêt, 1901.
APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 631, 27 C.C.L.T. 190, 7 D.L.R. (4th) 37, reversing a judgment of the Superior Court, [1979] C.S. 907, 13 C.C.L.T. 1, allowing appellant's action for damages. Appeal dismissed.
Guy Taillefer, Jean Bernier, Richard Pigeon, Stéphane Sheitoyan and Claude Taillefer, for the appellant.
Daniel Chénard and François Aquin, for the respondent.
English version of the judgment of the Court delivered by
1. Chouinard J.‑‑Appellant based his claim for damages against the Government of Quebec, on account of the injury caused by administration of a vaccine, on no‑fault or "objective" liability.
2. As counsel for the government wrote, the latter, [TRANSLATION] "urged by the medical community to introduce measles vaccination in 1970", did so on a grand scale. Beginning in that year it had an average of 85,000 children a year vaccinated without charge.
3. On September 14, 1972, at the suggestion of the nurse at the Assomption‑Montcalm public health unit clinic, Mrs. Lapierre agreed to the vaccination of her daughter Nathalie, then five years old.
4. On September 22 following, the child was the victim of acute viral encephalitis and was hospitalized for several months. The trial judge wrote, [1979] C.S. 907, at p. 910, that this encephalitis [TRANSLATION] "ultimately had disastrous consequences for Nathalie Lapierre and resulted in her permanent almost total disablement".
5. The child's father sued the Attorney General of the province of Quebec, who impleaded in warranty the companies of Merck, Sharp & Dohme and Merck, Sharp & Dohme Canada Limited, the manufacturer and distributor of the vaccine respectively. In his capacity as tutor he claimed the amount of $1,980,000 and in his personal capacity the amount of $35,000.
6. The Superior Court allowed the action and directed the Attorney General to pay plaintiff the sum of $10,000 personally and the sum of $375,000 in his capacity as tutor to his daughter Nathalie, with interest and costs. The action in warranty against the manufacturer and distributor of the vaccine was dismissed.
7. The Attorney General appealed and asked that Lapierre's action be dismissed and the action in warranty allowed. Mr. Lapierre filed a cross‑appeal asking that the damages for his daughter be increased to $1,980,000. The Court of Appeal unanimously allowed the principal appeal, [1983] C.A. 631. It dismissed the action against the province and the action in warranty against Merck, Sharp & Dohme and Merck, Sharp & Dohme Canada Limited.
8. At this stage, fault is no longer alleged against anyone, whether the government, its employees or the manufacturer and distributor of the vaccine. The latter two are no longer parties to the case.
9. It should also be noted that the Attorney General is no longer disputing the causal link between the vaccine and the encephalitis.
10. At the hearing, counsel for the appellant filed an application to increase the amount of the claim. He is now seeking $3,158,853 in his capacity as tutor to the child. He is asking for interest at the legal rate on this amount and on the amount of $10,000 which was awarded to him personally. He is further asking for interest on the interest from September 22, 1972, pursuant to para. 2 of art. 1078 C.C. Finally, he is asking for the additional indemnity provided for in art. 1078.1 C.C. from the date it became effective on April 1, 1983, and costs. This application was taken under advisement and will only have to be disposed of if appellant succeeds on the question of liability. Otherwise, the application will follow the outcome of the appeal.
11. First, the Superior Court judge found that there was a causal link between administration of the vaccine, the encephalitis and the damages. He then ruled out any fault by respondent and its employees or by defendants in warranty. The judge likened the vaccination given in the case at bar to a compulsory vaccination: [TRANSLATION] "In such a case it can be said that the vaccination is deemed to be necessary and that the moral suasion exercised on the public to have it done is the equivalent of a vaccination compulsorily imposed" (at p. 917). In the opinion of the judge the consent given by the mother in the circumstances in no way altered the problem. Finally, the judge decided against the government on the basis of no‑fault liability resulting from necessity and grounded on art. 1057 C.C.
12. The Court of Appeal agreed with the Superior Court as to the fact that no one had committed any fault, but it differed as to whether the vaccination was compulsory. McCarthy J.A. wrote for the Court, at p. 635: [TRANSLATION] "The `moral suasion exercised on the public' referred to by the trial judge [...] did not make Nathalie's vaccination compulsory". In the opinion of the Court of Appeal no‑fault liability did not exist in the circumstances and art. 1057 C.C. definitely does not have the scope suggested by the Superior Court judge. In particular, McCarthy J.A. wrote at p. 633: [TRANSLATION] "In my opinion, an obligation independent of any fault in circumstances such as those of the case at bar would be an excellent thing, but it does not exist in our law at present". Accordingly, the Court of Appeal reversed the Superior Court judgment and dismissed appellant's action.
Whether Vaccination Compulsory
13. It does not seem necessary for the purposes of this appeal to determine whether the vaccination given in the case at bar can be regarded as compulsory for, in my opinion, appellant's argument does not depend on that. The Court of Appeal did not dismiss appellant's action on the ground that, in its opinion, the vaccination was not compulsory, but because Quebec civil law does not recognize no‑fault liability. If appellant's argument is accepted, the Court must rule in his favour regardless of whether the vaccination was compulsory or not.
Appellant's Position
14. As counsel for the appellant argued in this Court:
[TRANSLATION] It cannot be seriously denied that it would be just and equitable to compensate Nathalie.
However, equity is not per se the source of an obligation.
The matter must be decided in accordance with positive law.
If Nathalie Lapierre cannot base her claim on positive law, on the civil law, she cannot be compensated.
15. In his pleading in this Court, counsel for the appellant presented his arguments in a different order from the one used in his submission, without in any way abandoning any of those arguments. This order also undoubtedly differs from that adopted in the Court of Appeal and the Superior Court. It will be best to follow the order adopted at the hearing.
16. Counsel for the appellant stated the following legal principle: damages suffered or costs incurred by an individual for the benefit of the community must be borne by the latter. He found legislative support for this rule in:
(i) extrapolation of several provisions of the Civil Code;
(ii) the ancient law;
(iii) art. 1057 C.C.
Necessity
17. According to counsel for the appellant, the theory of necessity is the source of the rule above stated.
18. He gave it the definition suggested by R. Savatier in a study titled "L'état de nécessité et la responsabilité civile extra‑contractuelle", contained in Études de droit civil à la mémoire d’Henri Capitant, 1939, at p. 729:
[TRANSLATION] Under the definition which we will adopt forthwith, necessity is a situation in which it clearly appears to an individual that the only means of avoiding a greater or equivalent harm is causing a lesser or equivalent harm.
19. Counsel for the appellant submitted that although in general necessity is a defence, it can also be the source of an obligation.
20. Additionally, R. Savatier in his Traité de la responsabilité civile en droit français, 2e éd., t. 1, 1951, Nos. 102‑105, at pp. 125 et seq., lists various types of necessity:
[TRANSLATION]
(1) harm caused to another in order to avoid harm to oneself;
(2) harm caused to oneself to avoid harm to another: the case of selflessness;
(3) harm caused to another to avoid other harm to the same person;
(4) harm caused to a third party in the interest of another third party or of the community.
21. In his submission appellant said:
[TRANSLATION] Savatier says regarding the fourth (4th) type of necessity that, in the absence of any fault leading to the act of necessity, those who benefited from the act arising out of the necessity, or their representatives if they cannot be identified, will be subject to liability.
For such liability to exist, however, there must be moral suasion which led to the decision to cause necessary damage or a duty imposed by statute to perform an act which might cause necessary damage.
As the evidence at trial demonstrated, measles is a universal scourge which must be dealt with by any society. So far as moral suasion is concerned, the medical associations had pressured the provincial government to develop a vaccination program.
Accordingly, the evidence in the record is that there was a necessity to act, and the government acted.
22. Fate decreed that although the risk of encephalitis would only be one in a million of the persons vaccinated, Nathalie Lapierre would be its victim. (The risk among persons not vaccinated is one in one hundred thousand.) According to appellant, the rule above stated means that the community ‑‑ or the State ‑‑ must compensate the victim.
23. Counsel for the appellant further referred to J. Aboaf, L’état de nécessité et la responsabilité délictuelle, 1942.
24. The latter lays down five conditions for the existence of a necessity (at p. 22):
[TRANSLATION]
(a) The individual must be faced with an unavoidable alternative.
(b) One of the two branches of this alternative must be to perform an act causing damage, as the only means of avoiding serious harm (act of necessity).
(c) The other branch of the alternative must be to allow that serious harm to occur, resulting in the effective loss of something worthwhile.
(d) The harm must be unjust.
(e) It must be significant and greater or at least equal in significance to that of the loss that would result from the act of necessity.
25. According to counsel for the appellant the circumstances of the case at bar are such that each of the five conditions is met:
1. The trial judge found that there was the risk of an epidemic, which the Court of Appeal assumed without confirming or denying it, as in view of its findings on the law this was not necessary: the risk of an epidemic made it necessary to take action and to vaccinate;
2. It was established that vaccination was the only means of avoiding an epidemic;
3. The evidence was that the other alternative, namely the serious harm, was the possibility that up to 90 or 95 per cent of the population would catch measles;
4. A measles epidemic is an unjust harm per se, especially as the vaccine was the means of stopping it and it would not be administered;
5. The harm done to Nathalie Lapierre was less than all the encephalitis which would have resulted if there had been no vaccination.
26. Even assuming that the conditions of a necessity were all met, which is strongly disputed in the case at bar, it would not be possible to ignore the qualifications made by French academic analysis, seeking to limit application of the rule to circumstances of a particular type. See, in particular, H. and L. Mazeaud and A. Tunc, Traité théorique et pratique de la responsabilité civile délictuelle et contractuelle, 6e éd., t. 1, 1965, Nos. 488 et seq., pp. 544 et seq.; R. Pallard, L’exception de nécessité en droit civil, 1949, Nos. 76 et seq. and Nos. 207 et seq.
27. Quebec writers have had little to say on the subject, apart from descriptions of a few cases of action taken in extremis.
28. However, counsel for the appellant cited three cases which discuss the legal rule on which he relied, namely that damage suffered or expense incurred by an individual for the benefit of the community must be borne by the latter.
29. The first is the judgment of the Court of Appeal in Cité de Québec v. Mahoney (1901), 10 Que. K.B. 378, in which the City of Québec was ordered to reimburse an owner for the value of his house which was demolished to check the progress of a fire. Cimon J.A., speaking for the majority, relied inter alia on a French case which awarded compensation for demolition in such circumstances in the public interest. However, he noted that some authorities base this action on the rules of expropriation. At page 401, he wrote:
[TRANSLATION] Turning to more modern French law, I again find that as a result this case is likened to the theory of jettison, though many writers regard this demolition as a tacit expropriation; the result is that the owner of the house demolished will be entitled to compensation.
A little further on, he added:
[TRANSLATION] In a case before the Cour de cassation, presided over by Mr. Troplong, a demolition in such circumstances is called an "expropriation" (D. P. 66. 1. 75). I regard this description as inappropriate: but what do the words matter!
30. In any event, this case does not constitute an authority for the case at bar in view of the fact that there was no statement of principle and it is not clearly indicated whether the decision was based on ancient or modern French law or on municipal law.
31. Guardian Assurance Co. v. Town of Chicoutimi (1915), 51 S.C.R. 562, concerned a claim by the Town against the insurance company of an owner whose house had been demolished to arrest the progress of a fire, and who the Town had compensated. It may be noted that in this case the Town Corporations’ General Clauses Act, R.S.Q. 1888, s. 4426, authorized such demolition and provided for compensation. Three judges of this Court cited Mahoney. Duff J., dissenting, mentioned it at pp. 573 et seq., and appeared to approve it at p. 579. Brodeur J. also cited it at p. 584, but he relied on art. 407 C.C. He wrote:
[TRANSLATION] Essentially we are back under the provisions of art. 407 of the Civil Code, which states that no one may be compelled to give up his property except for public utility and in consideration of a just indemnity previously paid.
32. Finally, Idington J., though he expressed no opinion as to the merits of Mahoney, did not regard it as relevant (p. 570).
33. In Dalbec v. Cité de Montréal (1902), 22 C.S. 23, the Circuit Court directed the City to pay an owner the income lost while his house was quarantined due to an infectious disease. The judge relied on Mahoney.
34. Respondent argued that the case was not one of necessity, and especially not one which met each of the conditions stated by commentators.
35. I do not intend to discuss this question, for what matters is to determine whether the fundamental principle on which appellant's entire case rests has any support in the law of Quebec, in particular the three points mentioned. Respondent disputed this, and argued that [TRANSLATION] "The concept of a legal obligation to compensate resulting from a necessity has no legal existence in the law of Quebec".
Extrapolation
36. The first point made by appellant was based on this Court's decision in Cie Immobilière Viger Ltée v. Lauréat Giguère Inc., [1977] 2 S.C.R. 67, which confirmed that the theory of unjust enrichment has been incorporated into the civil law. After referring to the academic dispute, as to whether the legislative basis for unjust enrichment in arts. 1041 and 1042 C.C. or arts. 1057 and 2613 C.C. (now 2712), depending on whether it is regarded as based on an innominate quasi‑contract or on law or custom, Beetz J. wrote, for the Court, at pp. 76‑77:
Such support can also be found in an extrapolation from the numerous provisions of the Civil Code, that are only special applications of it. The Civil Code does not contain the whole of civil law. It is based on principles that are not all expressed there, which it is up to case law and doctrine to develop:
[TRANSLATION] ". . . our Code, like the French Civil Code, has often applied this maxim‑‑"Pomponius' maxim"‑‑to special situations, but it has not made it into a general rule. I have admitted, however, the possibility of maintaining that the legislator recognizes its authority, since he gives it effect in all the cases of application which he contemplates. Surely it can be argued that if he had contemplated other situations, and he sometimes lacks foresight, he would have applied it again". (Mignault, op. cit., pp. 1971 and 1972 [sic]).
37. Appellant followed the same reasoning and referred to several articles of the Civil Code, which he submitted apply the legal principle that [TRANSLATION] "damages or expenses necessary to preserving the common welfare are paid for by those who benefit from them".
38. He grouped these articles in four categories, the first of which deals with general average contribution. It takes in the following twelve articles: 2007, 2383, 2385, 2387, 2399, 2402, 2450, 2677, 2680, 2691, 2692, 2709.
39. Of these, the one most often cited and which perhaps best illustrates the theory of general average contribution is art. 2450 C.C., regarding jettison:
2450. Freight is payable upon the goods cast overboard for the preservation of the ship and of the remainder of the cargo, and the value of such goods is to be paid to the owner of them by contribution on general average.
40. However, it must be borne in mind that the theory of general average contribution is entirely special to maritime law, so much so indeed that it applies only to maritime navigation as opposed to any other form of transportation.
41. G. Ripert, Droit maritime, 4e éd., t. 3, 1953, writes at p. 193, No. 2222:
[TRANSLATION] The theory of general average contribution has always been presented in our ancient law as pertaining to maritime traffic. It still has this exceptional nature today.
42. At page 188, No. 2218, he writes:
[TRANSLATION] When one looks at the theory of general average contribution today, one is struck by its singular appearance in relation to the rules of the civil law.
43. G. Ripert defines general average contribution at pp. 180‑181, No. 2209:
[TRANSLATION] According to a very ancient rule of maritime law, certain damage affecting the vessel or goods will not be borne exclusively by the owner of the thing damaged. If the vessel is damaged, the shippers will contribute to repairing it; if the goods have been sacrificed or have deteriorated, the owner of the vessel will partly indemnify the shippers; if extraordinary expenses have been incurred by the captain, the shipowner and the shippers will bear the burden jointly.
44. Regarding the origin and the basis for the theory of general average contribution, he writes at p. 183, No. 2212:
[TRANSLATION] One need only read the provisions of the Code de commerce, regarding jettison and contribution, to see that these rules are not simply a reproduction of similar provisions in the Ordonnance, but the most recent form of a very ancient maritime institution. The theory of general average contribution is in fact one of the oldest rules in law. Though we do not know its exact origin, traces of it are found in ancient legislation, and it appears to have been followed by all seafaring nations which have attained a certain level of civilization. Essentially the idea is quite simple: when in maritime transportation a peril threatens the vessel and cargo and a sacrifice has to be made to avoid this peril, the owner of the vessel and the owners of the goods will share in the required sacrifice. The legal theory of general average contribution is therefore only the implementation of a principle of general and equitable contribution, but what is interesting is the way in which it is implemented.
45. Rejecting the theory of unjust enrichment which some writers have suggested as the basis for the theory of general average contribution, G. Ripert writes at pp. 190‑91, No. 2219:
[TRANSLATION] This is the explanation given by jurists who do not want to take any account of the institution's past and who are seeking a legal construction to house a rule which seems strange to them.
46. In his view, the theory rests on an agreement, a temporary partnership between the owner of the vessel and the shippers. At page 191, No. 2220, he writes:
[TRANSLATION] Clearly the institution can only be explained in terms of its origin and its past. Contribution arose out of the temporary agreement created between the owner of the vessel and the shippers against the dangers of ocean shipping. The contributory action is one between partners. The partnership is only for a time and has a well‑defined purpose; it consists of a very small number of partners; but it is nonetheless a mutual insurance against risks at sea.
47. Moreover, this agreement exists by operation of law. On this point the writer observes at p. 185, No. 2214:
[TRANSLATION] It is possible that originally the master of the vessel and the merchants formally concluded an agreement before the vessel departed; however, writers on customary law all admit that it exists by operation of law.
48. Similar explanations are given in a more modern form by R. Rodière, Droit maritime, 8e éd., 1979, No. 472 et seq., pp. 464 et seq.
49. The same writer, in his Traité général de droit maritime, t. 4, 1972, rejects both negotiorum gestio and unjust enrichment as bases for the theory, and speaks of a de facto partnership (Nos. 328 and 329, pp. 354‑55).
50. Finally, G. Ripert writes at p. 194, No. 2222:
[TRANSLATION] French jurisprudence limits the application of the theory of general average contribution to maritime transportation: it applies that theory neither to transportation by land nor by air, where it might be of some value, nor to loading and unloading lightering operations which are not in the nature of transportation, nor to riverine transportation, where it could quite easily be applied.
51. On this point it appears that the theory of general average contribution cannot be the basis for a general principle applicable throughout the civil law, although the provisions concerning it are in our Civil Code, whereas in France they are contained in the Code de commerce and were previously in the Ordonnance sur la marine which dates from 1681, to go no further back than that.
52. The second category of articles of the Civil Code cited by appellant relates to expenditures in the common interest, and covers arts. 1994, 1996 and 2009.
53. These articles are found in Chapter Second, "Of Privileges", of Title Seventeenth, "Of Privileges and Hypothecs", of Book Third, "Of the Acquisition and Exercise of Rights of Property", of the Civil Code.
54. Article 1980, the first in Title Seventeenth, provides:
1980. Whoever incurs a personal obligation, renders liable for its fulfilment all his property, moveable and immoveable, present and future, except such property as is specially declared to be exempt from seizure.
However, a creditor may agree with his debtor that the latter will be bound to fulfil his obligation only on the property they describe and which is affected by a legal cause of preference in favour of the creditor.
55. Article 1981 then lays down the following rule:
1981. The property of a debtor is the common pledge of his creditors, and where they claim together they share its price rateably, unless there are amongst them legal causes of preference.
56. Article 1982 states that the legal causes of preference are privileges and hypothecs.
57. There are many kinds and different classes of privilege and the purpose of Chapter Second is to determine their order of priority.
58. Accordingly, art. 1994 places "Law costs and all expenses incurred in the interest of the mass of the creditors" before other privileges on moveables such as tithes or the claims of the vendor, but this simply means costs and expenses incurred in the interest of the mass of the creditors as opposed to those incurred in the interest of an individual.
59. There have been many cases concerned with separating one from the other: reference need only be made to the comments of C. Demers in the Traité de Droit civil du Québec, t. 14, 1950, and of P. B. Mignault, Le droit civil canadien, t. 9, 1916, under arts. 1994, 1996 and 2009, and to the cases cited.
60. Article 1996 adds to para. 1 of art. 1994 in stating: "The expenses incurred in the interest of the mass of the creditors, include such as have served for the preservation of their common pledge".
61. Similarly, art. 2009 places "Law costs and the expenses incurred for the common interest of the creditors" before other privileges on immoveables.
62. First and foremost, it must be determined how one is to apply the rule that the property of the debtor is the common pledge of his creditors, and how the latter will distribute it. Articles 1994 and 2009 provide that costs incurred in arriving at a distribution of the proceeds of the debtor's property will be paid before tithes and funeral expenses or other privileges and before claims which are not privileged.
63. The important point is that the preference given to a privileged creditor affects only the debtor's property. No obligation is imposed on other creditors to reimburse one who has incurred costs in the interest of the mass of creditors if the debtor's property is insufficient to do so. In this case, a creditor who has incurred such costs will bear the loss alone.
64. It could be argued that there is a contribution in the sense that the mass of the debtor's property, and therefore the proportional share of the other creditors when the proceeds of sale of the property are distributed, is reduced if costs incurred in the interest of the mass are paid on a priority basis; however, that is only true where the proceeds of the sale are sufficient to pay such costs. If they are not, the other creditors cannot be called on to contribute.
65. These rules are very different from the general principle suggested by appellant, namely that costs incurred by an individual for the benefit of the community must be borne by the latter.
66. The third category of articles relied on by appellant relates to the reimbursement of necessary expenses. They are arts. 417, 1046, 1052, 1539, 1546, 1775, 1812, 1813 and 1973. Article 417 deals with the case of a person having possession who with his own materials has made improvements to land which does not belong to him, and makes the owner's right to such improvements depend on their nature and the good or bad faith of the person making them. All the other articles cited govern contractual or quasi‑contractual relations between the parties: art. 1046, negotiorum gestio; art. 1052, receipt of a thing not due; art. 1539, dissolution of a sale by reason of non‑payment of the price; art. 1546, exercise of the right of redemption; art. 1775, expenses incurred by a borrower; arts. 1812 and 1813, expenses incurred by a depositary, voluntary deposit and necessary deposit; art. 1973, obligations of creditors and debtors with respect to pledges.
67. Far from being specific applications of the principle stated by appellant, these articles are specific applications of the theory of unjust enrichment confirmed by Cie Immobilière Viger Ltée, supra.
68. In his critical essay on L’évolution de la doctrine de l’enrichissement sans cause, 1955, A. Morel lists at p. 56 "inter alia" 73 articles of the Civil Code [TRANSLATION] "which prevent one person from enriching himself at the expense of another". This list contains all the articles cited by appellant with two exceptions, which should actually have been included. First, there is art. 1539, dealing with the obligation of a seller who retakes possession of the thing sold, when the price is not paid, to reimburse the price received and the costs of repairs and improvements. There is also art. 1813, dealing with necessary deposit which is subject to the same rules as voluntary deposit. Article 1812 on the latter is included in A. Morel's list.
69. The fourth category mentioned by appellant consists only of art. 407:
407. No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid.
70. This article is also a specific application of the theory of unjust enrichment. It is the first article mentioned by A. Morel.
71. Appellant's first point, the support provided by extrapolating the provisions of the Civil Code, cannot be admitted.
Ancient Law
72. Appellant relied on art. 2712 C.C.:
2712. The laws in force at the time of the coming into force of this code are abrogated in all cases:
In which there is a provision herein having expressly or impliedly that effect;
In which such laws are contrary to or inconsistent with any provision herein contained;
In which express provision is herein made upon the particular matter to which such laws relate;
Except always that as regards transactions, matters and things anterior to the coming into force of this code, and to which its provisions could not apply without having a retroactive effect, the provisions of law which without this code would apply to such transactions, matters and things remain in force and apply to them, and this code applies to them only so far as it coincides with such provisions.
73. As counsel for the respondent observed, this article has received little attention from academic analysts and the courts.
74. In the case at bar, the trial judge wrote at p. 916:
[TRANSLATION] In view of the wording of the old art. 2613 C.C. (now art. 2712), we have to consider that the provisions of ancient French law and those of Roman law constitute a supplementary system of law to which reference must be made where the Code is silent on a particular point. This legislation, peculiar to Quebec, thus allows us to refer occasionally to the ancient law, which is itself based on Roman law in the area of civil liability, though it is only exceptionally necessary to do this in view of the great generality of arts. 1053 et seq. of the Civil Code.
75. McCarthy J.A., speaking for the Court of Appeal, wrote at pp. 633‑34:
[TRANSLATION] However, that article does not have the effect of introducing the obligations of ancient French law or Roman law into the law of Quebec. On the contrary, art. 983 implicitly but clearly has the effect of limiting obligations to the sources it mentions. If the obligations of ancient French law or Roman law are contained in the law of Quebec, it is only because they have been adopted by the Quebec legislator. Article 2450 C.C., which deals with casting a passenger's effects overboard to ensure the safety of the vessel, is an example of this. Even assuming, therefore, that ancient French law or Roman law imposed on the province an obligation to compensate for the damage suffered by young Nathalie, I do not find any such obligation in our present law.
76. One observation should be made. There is no question that what our civil law has preserved of the ancient law is not necessarily limited to what the legislator has expressly adopted and enacted. On the contrary, and on this point I would cite P. B. Mignault, op. cit., t. 1, 1895, at p. 53:
[TRANSLATION] . . . what one may call the ancient law is only repealed when the Civil Code contains a provision which expressly or implicitly has this effect, or which deals expressly with the particular subject‑matter of this legislation, and finally when the substance of the ancient law is contrary to that of the Code or inconsistent with its provisions. Apart from these cases, the ancient law is still in effect, except of course in cases where it has fallen into disuse.
77. However, I do not think it is necessary for the purposes of this appeal to determine the exact scope of art. 2712. Only two cases belong to the ancient law: they are jettison and the demolition of a building to arrest the progress of a fire.
78. I feel I have dealt sufficiently with the theory of general average contribution to show that it is not possible to derive from that theory a general principle of the civil law that damages suffered or costs incurred by an individual for the benefit of the community must be borne by the latter.
79. So far as cases of demolition are concerned, they may be justified as much or more by the theory of unjust enrichment and the rule which results, stated in art. 407 C.C., that no one can be compelled to give up his property, except for public utility and in consideration of a just indemnity previously paid. The demolition of a building by a public authority or at its direction is similar to an expropriation.
80. Appellant's second point, based on the ancient law, cannot be admitted either.
Article 1057 C.C.
81. Finally, as legislative support for the general principle stated by him, appellant pointed to art. 1057 C.C.
82. Title Third of Book Third of the Civil Code is titled "Of Obligations".
83. Among the general provisions is art. 983:
983. Obligations arise from contracts, quasi‑contracts, offences, quasi‑offences, and from the operation of the law solely.
84. There follow Chapter First, dealing with contracts, Chapter Second dealing with quasi‑contracts, Chapter Third dealing with offences and quasi‑offences, and Chapter Fourth dealing with obligations which result from the operation of law solely.
85. The last mentioned contains only art. 1057, which reads as follows:
1057. Obligations result in certain cases from the sole and direct operation of law, without the intervention of any act, and independently of the will of the person obliged or of him in whose favor the obligation is imposed.
Such are the obligations of tutors and other administrators who cannot refuse the charge cast upon them;
The obligation of children to furnish the necessaries of life to their indigent parents;
Certain obligations of owners of adjoining properties;
The obligations which in certain cases arise from fortuitous events;
And others of a like nature.
86. The corresponding article of the French Code civil* is as follows:
*English translation by John H. Crabb, The French Civil Code (1977).
1370. Certain engagements are formed without any agreement intervening, neither on the part of him who obligates himself nor on the part of the one toward whom he is obligated.
Some result from the sole authority of the law; others arise from an act personal to him who finds himself obligated.
The first are engagements made involuntarily, such as those between neighboring owners, or those of guardians and of other administrators who may not refuse the function which is conferred upon them.
Engagements which arise from an act personal to him who finds himself obligated result either from quasi‑contracts or from delicts or quasi‑delicts (torts); they constitute the subject‑matter of the present Title.
87. I should at once make an observation concerning art. 1057, namely that strictly speaking a fortuitous event which in general has the effect of excusing the perpetrator of damage from liability cannot be the cause of an obligation, even though it sometimes occasions one. I will cite below the text of R. Taschereau who makes this distinction in Théorie du cas fortuit et de la force majeure dans les obligations, 1901.
88. The Superior Court judge observed that art. 1370 of the French Code is analogous to art. 1057 C.C., except for paras. 3, 5 and 6 which are not in the former.
89. The following explanation is given in the Commissioners' Report concerning art. 1057:
The single article, No. 77 (82), in cap. 4, declares in a more extended and special form than the article 1370, of the French code, the law, as well under the ancient as under the present system in France. The distribution under these systems, differs from that found in the Institutes of Justinian, by which this class of obligations is referred to [sic] quasi‑contracts.
90. The Commissioners refer to the following writers: Domat, Pothier, Marcadé and Toullier.
91. According to appellant, art. 1057 is general in its application. It is neither limiting nor an article which refers to any other. In short, art. 1057 indicates categories of obligations rather than listing specific cases, and there are in addition to the examples it gives many other obligations which result solely from the operation of law.
92. In particular, appellant relied on para. 5, "The obligations which in certain cases arise from fortuitous events", and on para. 6, which adds "And others of a like nature".
93. In general fortuitous events serve to excuse the perpetrator of damage from all liability; but the Code gives examples of obligations which result from fortuitous events, or more precisely of obligations which result when fortuitous events occur: they are arts. 420, 423, 428, 478, 575, 1595, 1767, 1768, 1804, 1813, 2410, 2411, 2412, 2427, 2445, 2450, 2451.
94. These are only examples, and according to appellant such obligations can be extended by analogy to other cases, in accordance with para. 6 of the article, which states "And others of a like nature".
95. This is especially true because "A judge cannot refuse to adjudicate under pretext of the silence, obscurity or insufficiency of the law", as stated in art. 11 C.C.
96. According to appellant, there is an analogy between the theory of general average contribution and one example of its application, jettison, on the one hand, and vaccination on the other.
97. In the case of jettison, the storm is the fortuitous event, while in the case at bar it is the danger of an epidemic. Both acts occur in circumstances which are necessarily analogous: jettison to save the vessel and its crew, vaccination to prevent the epidemic. Finally, the obligation which results from jettison is to pay the value of the goods to the owner by general average contribution, while that resulting from vaccination is that the victim should be compensated by the community, that is by the State.
98. The difficulty with this reasoning is that its effect is for all practical purposes to make fortuitous events a sixth and new source of obligations independent of contracts, quasi‑contracts, offences, quasi‑offences and obligations resulting solely from the operation of law.
99. Respondent submitted that on the contrary, the fortuitous events referred to in art. 1057, which occasion obligations, are those found in the various articles of the Code such as those already mentioned or those about which the legislator has enacted other legislation such as the Workmen’s Compensation Act, R.S.Q., c. A‑3; the Crime Victims Compensation Act, R.S.Q., c. I‑6; and the Automobile Insurance Act, R.S.Q., c. A‑25.
100. Article 1057 exists only to explain art. 983 by giving examples of obligations resulting solely from the operation of law. Accordingly, when the article speaks of the obligation of tutors and other administrators who cannot refuse the charge cast upon them and the obligations of children to furnish the necessaries of life to their indigent parents, there can be no question of obligations other than those contained in the Code or in some other legislative enactment. The same is true, respondent submitted, of fortuitous events. The final paragraph, which adds "And others of a like nature", simply means that art. 1057 is not limiting and only gives certain examples. Thus, it covers alimentary obligations of children to their parents but not those of spouses to each other and to their children, which are other similar obligations that result solely from the operation of law.
101. The prevailing view of academic analysis, with which I agree, is that art. 1057 is only declaratory and that para. 5 does not create a sixth source of obligations.
102. P. B. Mignault, op. cit., t. 5, 1901, writes at p. 391:
[TRANSLATION] Obligations resulting solely and directly from the operation of law are those which derive from an event or circumstance other than the act of an individual, which the law adopts and sanctions. Article 1057 cites, as examples:...
103. In his text cited above, R. Taschereau wrote at pp. 59‑60:
[TRANSLATION] One might be tempted on reading this article to think that the drafter intended to add to art. 983 a sixth source of obligation, namely fortuitous events or Acts of God. This provision of our Code was probably worded in this way in keeping with the opinion of Domat, who thought that fortuitous events should be a source of obligation. Toullier, subscribing to this approach, criticized art. 1370 C.N. because it omitted the obligations resulting from fortuitous events, "for" he said, "such obligations result neither from the sole authority of the law nor from a personal act, either by the person on whom the obligation falls or the one to whom it is owed".
In our opinion, Marcadé gives the true state of the law on the matter: "So" he says, "when the Code speaks of obligation resulting from the sole operation of the law, the word sole has a relative and not an absolute meaning‑‑it means that only the law is concerned, in that it is not accompanied by a contract, a quasi‑contract, an offence or a quasi‑offence; but once again, the intention is not that it should be absolutely by itself and that no circumstances may have existed which determined its intent by the formation of an obligation due to reason and natural equity . . . The category of obligations resulting from the operation of law, as we know, includes many other obligations besides those which are given here merely as examples. It includes absolutely and without limitation all obligations (and there are many) which arise neither from contract nor quasi‑contract, offences nor quasi‑offences, and in particular, as we have already said, those arising out of fortuitous events".
We adopt this view. In our opinion, fortuitous events are not a sixth source of obligation: the law alone operates in such cases to create obligations of natural equity. In a word, fortuitous events are not the cause of obligations, they merely occasion them.
104. L. Faribault, in t. 7‑bis of the Traité de Droit civil du Québec, 1957, writes at pp. 176‑77, No. 255:
[TRANSLATION] The list which it [art. 1057] gives of obligations which result solely from the operation of law is far from being complete. Accordingly, after discussing those which are specifically mentioned, we will say a word about others, namely those which are not discussed but which are mentioned in other parts of the Code or in particular statutes.
105. In his text Les obligations, 1983, J. L. Baudouin writes at p. 37:
[TRANSLATION] 32‑‑Legal Obligations‑‑Article 1057 of the Civil Code mentions a number of obligations resulting from the operation of law, due to special legal situations (adjacent rights, the obligations of tutors and those arising out of fortuitous events). With a few rare exceptions, including one notable one, the Quebec courts have devoted little attention to this text, which has been regarded simply as a reference to obligations resulting from the operation of law as a whole.
106. The notable exception to which the writer refers is the trial judgment in the case at bar.
107. This point made by appellant also cannot be allowed.
Theory of Risk
108. In his written submission, appellant asks the following question: [TRANSLATION] "Can the theory of risk be accepted in exceptional cases where the obligation results from the operation of law?" He suggests that an affirmative answer should be given in the case at bar.
109. The theory of risk has been described as follows by H. and L. Mazeaud and A. Tunc, op. cit., at No. 339, p. 431:
[TRANSLATION] Some partisans of the theory of risk limit themselves to denying the necessity of fault: they maintain that any act which causes damage, whether due to fault or not, obliges the perpetrator to make reparation. This is what may be called the integral theory of risk, a purely negative approach. However, most opponents of the idea of fault do not stop there: having destroyed they seek to rebuild; they recognize that all acts causing damage are not such as to make their perpetrators liable; they then seek some criterion other than fault by which they can make the distinction they consider to be necessary; they part company in this search, and each suggests a different rule. [One example is the theory of risk‑profit.]
110. At No. 353, pp. 442‑43, the same writers indicate that the theory of risk is not accepted in French law:
[TRANSLATION] Perhaps in terms of equity the theory of risk raises fewer objections in public law. When it is the State or a public body which has caused damage through its representatives, there is no moral objection to requiring it to make compensation, though it may be clear that no one was at fault. This is no longer a question of causing pecuniary loss to an individual, against which equity rebels when the latter's conduct is free of fault; the question is whether a single individual, the victim, should bear the burden caused by operation of the service which injured him, or whether all individuals, represented by the State, should share that burden. The question arises in completely new circumstances: there is a problem of "distributing public burdens", "individual equality with respect to public burdens". However, no contemporary publicist accepts the theory of risk outright.
111. The theory of risk is equally not accepted in Quebec law.
112. One isolated judgment of the Court of Appeal has suggested to some that the Quebec courts are moving in the direction of recognizing the theory of risk. This is Katz v. Reitz, [1973] C.A. 230, in which the Court of Appeal had to decide whether the owners of a building were liable for the collapse of the adjacent house. Lajoie J.A. held they were liable, and wrote at p. 237:
[TRANSLATION] However absolute it may be, the exercise of the right of ownership includes an obligation not to injure one's neighbour and to compensate him for damages which the exercise of this right may cause him. This obligation exists even in the absence of fault, and in that case results from the neighbour's right to enjoy his property undisturbed and to be compensated for losses which he suffers against his will from work done by another for his advantage and profit.
113. In reality, this decision is no different from cases in which liability results from the faulty use or exercise of rights. It is only an example of application of the theory of abuse of rights to disputes between neighbours.
114. Moreover, it has been given differing interpretations by various writers: see A. Mayrand, "L'abus des droits en France et au Québec", (1974) 9 R.J.T. 321, P.P.C. Haanappel, "Faute et risque dans le système québécois de la responsabilité civile extra‑contractuelle", (1978) 24 McGill L.J. 635, and M. Tancelin, Des obligations: contrat et responsabilité, 1984, No. 444, p. 226.
115. In my opinion the law is correctly stated in Simard v. Soucy, [1972] C.A. 640, by Deschênes J.A., as he then was, when he wrote at p. 651:
[TRANSLATION] . . . The move from a system of liability based on fault‑‑whether proven or presumed‑‑to a system based on risk which a certain school of opinion in France has supported since the early part of the century [...] has not been accepted in Quebec law.
116. In A. Nadeau and R. Nadeau, Traité pratique de la responsabilité civile délictuelle, 1971, there is the following at p. 44, No. 58:
[TRANSLATION] The practical result of the theory of created risk is to establish objective liability.
...
Whatever the outcome of all these discussions as to the basis of civil liability, there is no doubt, at least so far as the province of Quebec is concerned, that the civil courts here only apply the classical theory of liability based on proven or presumed fault.
The Law in France and Elsewhere
117. In my view it is significant that in France, Britain, Japan, the Federal Republic of Germany and Denmark it has been found necessary to adopt special legislation providing compensation for vaccination victims.
118. In France in particular there is art. L.10‑1 of the Code de la santé publique, inserted in 1964:
[TRANSLATION] Subject to actions which may be brought pursuant to the ordinary law, compensation for any damage attributable directly to a compulsory vaccination given in the conditions stated in this Code shall be paid by the State.
If necessary the State shall be subrogated, up to the amount of any compensation which it pays, in the rights and actions of the victim against the persons responsible for the damage. [Gaz. Pal. 1964.2.40 and Gaz. Pal. 1975.1.275.]
119. On the state of the law prior to adoption of this specific legislation, R. Savatier observes in an article titled "Responsabilité de l'état dans les accidents de vaccination obligatoire reconnus imparables", Mélanges offerts à Marcel Waline, t. 2, 1974, at pp. 752‑53:
[TRANSLATION] The unavoidable risk of an accident‑‑resulting in death or serious injury‑‑which is occasioned by a compulsory vaccination has only been an undisputed scientific fact for a short time; and though very rare, this risk is still proportionately not widely known. Miss Lemasurier, in a note published under the decision of the Conseil d'Etat in Lastrajoli (July 13, 1962, D. 1962, 726), places it at one in 10,000 vaccinations, and for anti‑polio vaccinations the figures of one in 20,000 or one in 33,000 were quoted to the National Assembly in discussing the law of 1964 (J.O., Débats, April 15, 1964, p. 759).
Before the unavoidable nature of this risk was established, existing apart from any identifiable counter‑indication, tribunals both civil and administrative only heard actions in liability within the classical framework.
The Cour de cassation, which has long asserted judicial jurisdiction, regarded vaccinations only as an everyday medical occurrence, undoubtedly capable in the event of faulty administration of making the physician liable, but in the absence of any proof of fault merely one of the medical obstacles inherent in the human condition, which must therefore be borne by the patient (Civ. 1er, January 15, 1957, D. 1957, 146). Then the judicial authority had to give way, as regards liability for accidents occurring in approved vaccination centres, to the administrative authority as the result of a decision of the Tribunal des Conflits on March 25, 1957 (D. 1957, 395, concl. Chardeau, J.C.P. 1957, II, 10004, note R. Savatier). However, the administrative tribunals, applying the principles of their customary law to vaccination accidents, made liability of the public power depend on gross negligence or faulty organization of the department (Cons. d'Et., May 7, 1952, Dame Veuve Chassagnac, Rec. p. 230).
Only one small alert group of administrative tribunals (Trib. Adm. Bordeaux, February 29, 1956, D. 1956, 462; Marne Trib. Pensions, September 27, 1957, Gaz. Pal. 1960, 2, 154, in a sub‑note; Trib. Adm. Lyons, June 17, 1960, Gaz. Pal. 1960, 2, 154, and June 14, 1963, D. 1964, 343, note R. Savatier) had taken the initiative of applying‑‑to the small number of vaccinated persons who became victims as the result of efforts to protect the French public, in a pitiless game of chance‑‑the precedents based on equality of burdens among French citizens, which no one has described with greater force and clarity than Mr. Waline (Précis de droit administratif, I, No. 1088):
...
"If in the public interest an additional sacrifice is imposed on someone, which falls on him by chance, there is a deliberate breach of the equality which should apply between citizens with respect to public burdens, and that equality must be re‑established by means of a compensatory payment".
Clearly (vide the note of Miss Lemasurier, cited above), the Conseil d'Etat in Lastrajoli in 1962 still preferred, when the circumstances allowed it to do so, to base the order which it would make against the State on defective organization of the department rather than on the risk to society.
120. The Court was referred to two French decisions subsequent to Mr. Savatier's article, rendered by the Tribunal Administratif of Strasbourg on November 9, 1976, Engel v. Faculté de médecine de Strasbourg and De Gail v. Faculté de médecine de Strasbourg, D.1977.660. Suffice it to say that in the first case the action against the State was dismissed for reasons relating to procedure, and the order made was only against the Faculté de médecine of Strasbourg, and in both cases the tribunal based its ruling on the failure of the physician to inform the person vaccinated of the risks inherent in vaccination. In the case at bar, the argument based on failure to provide information was dismissed by the Superior Court judge, who ruled out any fault.
Conclusion
121. I conclude by again citing this passage from the reasons of McCarthy J.A., speaking for the Court of Appeal:
In my opinion, an obligation independent of any fault in circumstances such as those of the case at bar would be an excellent thing, but it does not exist in our law at present.
122. I would dismiss the appeal, but like the Court of Appeal, without costs in view of the circumstances.
Appeal dismissed.
Solicitors for the appellant: Taillefer, Taillefer, Pigeon, Bernier & Sheitoyan, Montréal.
Solicitors for the respondent: Aquin, Chénard, Montréal.
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