Judgment of the Court — PIGEON J.
The judgment of the Court was delivered by
PIGEON J.—Appellants are the daughters of Saul Pantel and his wife, née Tilly Benjamin,
[Page 474]
who were both killed in an air accident which occurred at Ste. Thérèse, county of Terrebonne, on November 29, 1963. Two actions were commenced in the Superior Court in Montreal by the tutor of appellants, who were then minors and who in due course continued the actions after reaching their majority. Respondent’s liability was admitted and the only issue is as to the quantum of damages.
For their father’s death the trial judge awarded
Francine Merle Pantel
$26,632
Sharon Pantel
$21,983
Eleanor Rhona Pantel
$24,483
Total:
$73,098
For their mother’s death he awarded
Francine Merle Pantel
$12,410
Sharon Pantel
$ 8,710
Eleanor Rhona Pantel
$10,140
Total:
$31,260
On appeal the award was reduced to the following sums:
For the father’s death
Francine Merle Pantel
$11,738.60
Sharon Pantel
$ 7,090.00
Eleanor Rhona Pantel
$ 9,690.00
Total:
$28,518.60
For the mother’s death
Francine Merle Pantel
$ 11,270
Sharon Pantel
$ 7,570
Eleanor Rhona Pantel
$ 9,000
Total:
$ 27,840
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The basis for these reductions and the dismissal of the appeal seeking a greater award was essentially the denial of any compensation for loss of future estate. The appeals of appellants are founded essentially on the argument that the Court of Appeal of Quebec erred in so holding, and that it ought to have applied the decision of this Court in Proctor et al. v. Dyck et al.[2], where it was held that, under the law of Ontario, compensation should be awarded for this type of loss by virtue of The Fatal Accidents Act. It was there said (at p. 249):
To entitle a claimant to damages under The Fatal Accidents Act it is not essential that he should have been financially dependent upon the deceased or that the deceased should have been under any legal liability to provide for him or that he should have enjoyed any benefits from the deceased in his lifetime. It is sufficient if it is shown that the claimant had a reasonable expectation of deriving pecuniary advantage from the deceased’s remaining alive which has been disappointed by his death.
In my view, for the reasons hereafter stated, this test is not the proper one to apply in relation to a claim under art. 1056 C.C. because the question is as to what is meant by “damages occasioned by such death” in that article of the Quebec Civil Code, paragraphs one and three of which at the date of the accident read as follows:
1056. In all cases where the person injured by the commission of an offence or a quasi‑offence dies in consequence, without having obtained indemnity or satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi‑offence, or his representatives, all damages occasioned by such death.
…
In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity each is to receive.
This is not the first time it has been argued that these provisions should be interpreted as having the same meaning as those of The Fatal
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Accidents Act. Until now the argument has always been rejected, and this is doubtless why no authority can be found dealing expressly with the particular point now before this Court, although there are a number of decisions which reject in principle the interpretation of the Code in this manner. It is true that in 1847 the Parliament of the Province of Canada, under the Union then in effect, enacted a statute (10-11 Vict., c. 6) applicable to both Lower and Upper Canada, which substantially reproduced Lord Campbell’s Act (9-10 Vict., c. 93), and the latter was thus the original basis for the Ontario Fatal Accidents Act. The 1847 statute later became Chapter 78 of the Consolidated Statutes of Canada of 1859. However, though it is not known why or how this happened, the previous wording was not, as that of many other statutes, inserted in the Civil Code of Lower Canada as enacted on the eve of Confederation; instead a new wording was drawn up which was substantially different and was clearly intended to better fit in with the rest of the Code.
In Robinson v. Canadian Pacific Railway Co.[3], in which the decision of the Courts of Quebec was restored, Lord Watson said (at p. 487):
…The language used by Lord Herschell in Bank of England v. Vagliano Brothers (1 App. Cas. 145), with reference to the Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), has equal application to the Code of Lower Canada: “The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities.” Their Lordships do not doubt that, as the noble and learned Lord in the same case indicates, resort must be had to the pre-existing law in all instances where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning. But an appeal to earlier law and decisions for the purpose of interpreting a statutory Code can only be justified upon some such special ground.
[Page 477]
In so far as they bear upon the present question, the terms of sect. 1056 appear to their Lordships to differ substantially from the provisions of Lord Campbell’s Act and of the provincial statute of 1859. The Code ignores the representative of the injured person, and gives a direct right of action to his widow and relations—a change calculated to suggest that these parties are to have an independent, and not a representative right.
In Miller v. Grand Trunk Rly. Co.[4], in which the decision of the Courts of Quebec was also restored by the Privy Council, Lord Davey said (at pp. 191 and 195):
It has been decided by this Board in Robinson v. Canadian Pacific Ry Co. (1892 A.C. 481) that the right of action of the widow and relatives under this article is an independent and personal right of action, and not, as in the English Act known as Lord Campbell’s Act, conferred on the representatives of the deceased only….
Their Lordships are not sure that in coming to a conclusion in favour of the appellant they are differing from the real opinion of the learned judges in the Supreme Court. Chief Justice Taschereau said in the course of his judgment:
“Here, were I unfettered by authority, I would be inclined to doubt if the deceased can be said to have received any indemnity or satisfaction, but I am bound by the authority of Reg. v. Grenier (30 Sup. Ct. Can. 42) to hold that he has.”
And the other learned judges who delivered judgments in favour of the respondent company also hold themselves bound by that decision which they thought could only be distinguished if the company was itself in fault and not merely responsible for the fault of its employees. In Reg. v. Grenier the judgment of the Court was delivered by Chief Justice Strong. The learned judge held that the action given by art. 1056 is merely an embodiment in the Civil Code of the action which had previously been given by a statute of Canada re-enacting Lord Campbell’s Act, and that therefore the English decisions on that Act, such as Griffiths v. Earl of Dudley (1882, 9 Q.B.D. 357) were applicable to the case. He is reported to have said:
Judgment of the Court
[Page 478]
“It must be acknowledged that if the deceased would, if he had survived, have had no claim for damages against the Crown, the suppliant can have none, provided we are right in assuming this to be a proceeding to be governed by the law applicable to actions under Lord Campbell’s Act.”
The assumption thus made was admitted by learned counsel to be erroneous, and their Lordships cannot attach any weight to a decision founded upon it.
Art. 1056 C.C. must therefore be interpreted, not as reproducing a statute of English inspiration, but as a new provision forming part of a codification in which some fundamental principles are radically different from those of the common law, in terms of which Lord Campbell’s Act was written. As noted in Hunter v. Gingras[5], the 1847 statute did not for Quebec create a new remedy. The right to recover damages due to the death of a near relative had long been existing there. Whatever may have been the situation before the Code, due to adoption of the same statute applicable to two areas subject to different systems of private law, a consideration of the effect of that law at the time is now of historical interest only. The 1847 statute has been repealed. What we have since 1867 is a code, and its provisions on this subject must be interpreted in keeping with the whole of which it is a part. Among the fundamental principles of that whole, which are radically different from those of the common law, is the absence of the maxim actio personalis cum persona moritur. Thus, the heirs of a deceased person inherit his rights resulting from the accident causing his death. (Smith v. Pelletier[6]).
In Driver et al. v. Coca Cola Ltd.[7], this Court clearly recognized that the claim of the victim of an accident for damages suffered during his lifetime passed on to his heirs, but it held that shortening of life could not be included because
[Page 479]
it is caused by the death. Concerning pain and suffering it was held that to support a claim by the heirs, it must be shown that the suffering was felt by the victim while alive, which was not true in that case as the death appeared to have been instantaneous.
The same line of reasoning was finally adopted, after some difference of opinion, with regard to funeral expenses. It is now settled that because funeral expenses are a charge on the estate of the deceased (art. 2002 C.C.), the near relatives specified in art. 1056 C.C. may only recover these expenses if they show that they had to pay them because there were not in the estate sufficient assets to cover the amount. The decision in that sense by the Court of Appeal, in Mussens Limited v. Verhaaf[8], was unanimously upheld in this Court.
Similarly in Quebec Workmen’s Compensation Commission v. Lachance[9], Chief Justice Fauteux, giving the unanimous opinion of this Court, after recalling the principles stated in the aforementioned cases, Robinson v. C.P.R. and Miller v. Grand Trunk said:
Allowance definitely cannot be made for the widow’s personal income, which had accrued to her before the death of her husband. Nor can the share of the estate devolving on the widow and children be taken into account, without making those responsible for the event that produced the damage benefit from the providence of the deceased and from the savings he was able to accumulate for the benefit of his heirs, and without in this way making him indirectly, through his legal representatives, bear a portion of the damages attributable to those who committed, or who are answerable for, the quasi-delict which resulted in his death.
In the Court of Appeal[10], Brossard J.A. had said (at p. 193):
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[TRANSLATION] Appellant further contends that the judges erroneously decided, and so instructed the jury, that allowance should not be made either for the value of the accident victim’s estate, or for the pension which his widow was entitled to receive.
Neither appellants nor respondent submitted any authority to prove or disprove this contention; it is a point on which our Canadian commentators, Mignault, Langelier and Nadeau, are silent, unless Mignault intended to deal with it when he wrote Droit civil canadien, (1901) vol. 5, p. 340:
[TRANSLATION] We are not concerned here with a right of action which was available to the deceased and is transmitted to his heirs by his death, because the victim’s spouse, who is named first, is not his heir. The right of action is even distinct from that exercisable by the victim, as the damages suffered are not the same. It is derived, not directly from the wrongful act itself, but from the loss which the victim’s death caused to those dependent on him.
While it is true that the remedy under Art. 1056 is of English origin, the fact remains that on the question of damages, despite the similarity of the French and English law, the principles of law which must be applied are those of French law, as Fournier J. pointed out in 1881 in Levi v. Reed (1882) 6 S.C.R. 482, at p. 497.
In the case referred to by Brossard J.A. the claim for damages was made under art. 1053 C.C. In this regard it seems proper to note that in The Queen v. Sylvain[11], this Court refused to treat the loss sustained by the employer of a person injured through the fault of a third party as damages recoverable under that article, while such a loss is recoverable at common law in those circumstances.
In the case at bar Salvas J.A. cited the following passage from the reasons of Choquette J.A. in Rousseau et al. v. Nadeau et al.[12]:
[TRANSLATION] However, the action is not for loss of income, it is an action for loss of maintenance; its purpose is not to obtain an inheritance for the claimants, but to provide them with a substitute for the deceased’s maintenance obligation (including ser-
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vices) in the years of life that would have remained to him. Otherwise, the widow and children of a millionaire might make a fantastic claim, besides inheriting the deceased’s millions.
How could the diminution of an eventual inheritance be taken into account in estimating the damages recoverable by the near relatives as such, when it is clear that such inheritance is not to be considered in estimating those damages? The loss of future estate is a loss suffered by the heirs. It is nothing else than a pecuniary aspect of the loss of life expectancy, and as we have seen, this Court held in Driver v. Coca Cola that such a loss is not recoverable.
In my view the Court of Appeal properly held that the sums awarded by the trial judge for loss of future estate should be disallowed. The loss of any hope of inheriting a larger estate if the deceased had lived a normal life span cannot be regarded as damages caused by his death to persons specified in art. 1056 C.C.
It appears to me, however, that this does not dispose of the case, at least as regards the claim arising out of the death of appellants’ father, for it is clear that the trial judge took into account the income from the estate they inherited in fixing the amount that appellants were awarded for loss of maintenance. Rinfret J.A. has noted it in his reasons on appeal:
[TRANSLATION] With regard to the other claims, I feel that the figures arrived at by the trial judge are adequate; on the claim for loss of financial support in particular, I see no reason not to take into consideration the interest on moneys received either from the estate of Saul Pantel or that of his spouse: these undoubtedly contribute to the financial support of plaintiffs appellants, and reduce their loss.
There is an obvious error in those remarks. They are completely at variance with the decision in Quebec Workmen’s Compensation Commission v. Lachance. Having regard to the evidence presented in this case, I feel the trial judge would not have estimated the loss of
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financial support from the father, as he did, if he had not made allowance, in favour of the author of the wrongful act, for the fact that appellants had received a sizeable inheritance. He computed the amounts awarded to appellants on this account by taking the present value of $500 per annum to each of them, from the date of the accident to age 25. In my opinion this amount should be tripled, resulting in an award to each appellant, over the amount determined by the Court of Appeal, of the following sums, representing twice the amount awarded by the trial judge for loss of maintenance due to their father’s death:
Francine Merle Pantel
$ 10,477.20
Sharon Pantel
$ 5,580.00
Eleanor Rhona Pantel
$ 8,380.00
Total
$ 24,437.20
Since the three appeals were heard concurrently, and appellants only succeed on one appeal on a secondary question, failing on the principal question, it seems proper that no costs should be allowed in this Court.
On the whole I would allow the appeal of appellants against the first of the three judgments rendered by the Court of Appeal on September 15, 1971, by which the compensation awarded for the death of Saul Pantel was reduced to $28,518.60, and vary that judgment by increasing such compensation to $52,955.80, divided as follows: Francine Merle Pantel, $22,215.80; Sharon Pantel, $12,670; and Eleanpr Rhona Pantel, $18,070; I would dismiss the two other appeals and allow no costs in this Court.
Appeal for increasing the compensation awarded for the death of the father allowed; other appeals dismissed, all without costs.
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Solicitors for the plaintiffs, appellants: Mendelsohn, Rosentzveig, Shacter, Taviss, Shayne, Greenstein & Levitt, Montreal.
Solicitors for the defendant, respondent: Pinsonnault, Boudreau & Giard, Montreal.
Footnotes
- [1] [1972] C.A. 25, sub nomine Pantel v. Trans-Canada Air Lines.
- [2] [1953] 1 S.C.R. 244.
- [3] [1892] A.C. 481.
- [4] [1906] A.C. 187.
- [5] (1922), 33 Que. K.B.403.
- [6] [1942] Que. K.B. 664.
- [7] [1961] S.C.R. 201.
- [8] [1971] C.A. 27, (1972), 27 D.L.R. (3d) 717, [1973] S.C.R.621.
- [9] [1973] S.C.R. 428, (1972), 28 D.L.R. (3d) 66.
- [10] [1970] C.A. 185.
- [11] [1965] S.C.R. 164.
- [12] [1967] Que. Q.B. 301, [1968] S.C.R. 853.
Cases cited
- Levi v. Reed 6 S.C.R. 482 p 497