j. On this state of facts, it appears to me that as between the appellant and Leclerc the whole blame for the occurrence of the explosion rests upon the latter. The appellant employed Leclerc to do what was necessary to prevent the jacket-heater giving off offensive smells. The appellant whose profession was that of a physician did not know, and would not be expected to know, how this should be accomplished. On the other hand, while there are suggestions in the evidence that neither Leclerc nor his employee Delisle fully realized the danger of hermetically sealing the cylinder while it contained rust or moisture, it was clearly the duty of Leclerc to know and guard against this danger; spondet peritiam artis. It is clear that the appellant relied entirely upon Leclerc in the matter. Leclerc committed a grave fault in sealing the cylinder. Having done this it was his duty to give a clear and explicit warning to the appellant of the potential danger which he had created; this he failed to do. I do not find it necessary to consider whether, if Richard had not been entitled to compensation under the Act, the fact that as between the appellant and Leclerc all the blame rested upon the latter would have afforded a defence to the appellant against the claim made by Richard. I will assume that as "gardien juridique" of the jacket-heater the appellant would have been responsible to Richard under art. 1054 of the Civil Code; on that assumption I think it clear that Leclerc would have been liable to indemnify the appellant against the damages the latter was called upon to pay to Richard. Since, however, Richard is entitled to, and has elected to take, compensation under the Act, to order the appellant to pay Richard's damages and to order Leclerc to indemnify the appellant would, in the result, be to order Leclerc to pay the damages suffered by his employee; such a result would be contrary to the provisions of the Act; the law does not permit that to be done indirectly which is forbidden to be done directly. In my view Marchand J. was right in holding that the action of the Commission should be dismissed. It follows from this, as Marchand J. held, that the action in warranty becomes unnecessary and should be dismissed but as, in my opinion, the fault of Leclerc was the sole effective cause of the injuries suffered by Richard I would not award any costs to him.
Cauchon v. Commission des accidents du travail de Québec et al.
Contents
respondent Dame Mary Agnes Macaulay, and the appeal was argued only as against the intervenants-respondents. CRowN For the reasons which I have given I would dismiss that Co. appeal with costs.
the reasons of the learned trial judge and in those of St. Jacques J. in the Court below. Both the learned trial judge and the majority in the Court below found that the effective cause of the accident was an imprudent use of the jacket-heater by appellant or by persons for whom he is responsible, and appellant has failed to satisfy me that this is a case in which these concurrent findings of fact should be interfered with.
For the reasons given by St. Jacques and Montgomery JJ., with which I am in respectful agrement, I would dismiss both appeals with costs.
(dissenting):-These are appeals from two judgments of the Court of Queen's Bench of the Province of Quebec (Appeal Side)' which confirmed judgments of the Superior Court for the District of Quebec whereby the appellant was ordered to pay to the respondent, La Commission des Accidents du Travail de Qu6bec, hereinafter referred to as "The Commission", the sum of $4,490.50 and his action in warranty against the respondent Leclerc was dismissed. Marchand J., dissenting, would have allowed the appeals and dismissed the Commission's action; as a result he would have affirmed the dismissal of the action in warranty on the ground that it was unnecessary.
There does not appear to me to be any serious dispute as to the facts on which the rights of the parties depend. The Commission brought its action against the appellant by virtue of its right to be subrogated to the claim of ment Richard who was an employee of the defendant in warranty Leclerc. The business of Leclerc, that of a plumbing and heating contractor, was subject to the provisions of the Quebec Workmen's Compensation Act, hereinafter referred to as "the Act."
On January 18, 1952, Richard was an employee of Leclerc; while in the course of his employment he was seriously injured by the explosion of a jacket-heater in the basement of the appellant's cottage in which Leclerc was carrying out a contract with the appellant involving the replacement of the heating system. Richard elected to claim compensation under the Workmen's Compensation Act.
The jacket-heater, which exploded, had been used for some years by the appellant for the domestic supply of hot water. It was designed to use either wood or coal as fuel. The fire box was surrounded by a metal cylinder in which water circulated entering through a pipe inserted in an opening one inch in diameter about one inch above the base of the cylinder and passing out to the hot water reservoir through a similar opening near the top of the cylinder. In December 1951, Leclerc in the course of performing his contract with the appellant disconnected the jacket-heater from the pipes mentioned above and installed a hot water heater operated by electricity.
The appellant's evidence was that he intended to get rid of the jacket-heater; Leclerc's evidence as to the conversation between them was as follows:
et al. Following this the appellant used the jacket-heater on several occasions for the purpose of burning rubbish consisting of discarded papers of various sorts but found that it gave off a nauseating odour. The appellant says that he reported this to Leclerc, the latter denies this, but it would seem probable that he is in error as it is established that his foreman Delisle went to the appellant's house and plugged the two holes in the water-jacket so that, in the result, the cylinder in which formerly the water circulated was now hermetically sealed.
While there is some conflict in the evidence as to matters of detail, if taken at its worst against the appellant it establishes the following facts.
The appellant told Leclerc that he would continue to use the jacket-heater for the burning of waste-paper. Prior to the plugging of the holes Leclerc had told the appellant that he could use the jacket-heater like any other little stove. The holes were plugged by the servant of Leclerc acting in the course of his employment. This action, on the uncontradicted evidence of the expert witnesses, transformed the jacket-heater from an ordinary and harmless stove into a highly dangerous thing. Leclerc gave the appellant neither notice nor warning of this danger. The appellant had no knowledge of the danger created and relied on Leclerc, as an experienced heating and plumbing contractor, to do what was necessary to get rid of the disagreeable smell which the heater had been causing. The immediate cause of the explosion was the use made of the jacket-heater by the appellant and his wife to heat the basement while the normal supply of heat was cut off owing to the work being done on the furnace. Instead of merely burning waste paper on January 17, the appellant burned fire-wood in the stove. Before it was re-lighted on January 18 the appellant's wife cleaned out the ashes which had accumulated in the stove; to some extent these had acted as insulation and when the stove was re-lighted and fire-wood added to it on January 18 a sufficiently high temperature was generated to cause the explosion by which Richard was injured. Both Leclerc and Delisle were present while wood was being burned in the stove on January 17 and January 18.
I would allow the appeals, set aside the judgments in the
Courts below and direct that judgment be entered dismissing the action of the Commission against the appellant with costs throughout and dismissing the action in warranty of the appellant against Leclerc without costs; I would make no order as to costs in the last mentioned action in the Court of Queen's Bench (Appeal Side) or in this Court.
J.:-I have had the advantage of reading the reasons of both Cartwright J. and Abbott J. in this appeal, and
I have further re-read much of the evidence and all of the judgments in the courts below. I have come to the conclusion that the judgment of Sevigny C.J. in the Superior
Court was a finding of fact made after considering conflicting evidence and that judgment was confirmed by the judgment of the Court of Queen's Bench (Appeal Side)'.
This Court cannot reverse the finding of fact made in the trial court and confirmed on appeal unless there was evident error in the lower courts: Paradis v. Limoilou , per
Girouard J.
I adopt what was said by Anglin J. in Frith v. Alliance
Investment Company':
I find myself in the same position in this case and I would, therefore, dismiss the appeal with costs.
Appeal dismissed with costs, J. dissenting.
Attorneys for the defendant, appellant: Gagnon & de Billy, Quebec.
Attorney for the plaintiff, respondent: G. Dorion, Quebec.
Attorneys for the defendant in warranty, respondent:
Pelletier & Levesque, Quebec.