Ratté v. Provencher

COUR SUPRtME DU CANADA

DAME THERESE RATTE (Plaintiff) ... .APPELLANT; *Feb. 27,28

June 29

AND

THEODORE PROVENCHER (Defend- RS

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Motor vehicle-Collision-Credibility of witnesses-Expert evidence-Burden of proof-Preponderance of evidence-Finding of trial judge reversed by Court of Appeal.

As a result of the death of her husband in an accident involving his automobile and a truck driven by the defendant, the plaintiff was awarded damages by the trial judge. The only eyewitness to the accident was the defendant, and his account of what happened was vague and confused. Having refused to accept the defendant's evidence, the trial judge relied upon inferences drawn from the circumstances and upon theories advanced by two expert witnesses. The Court of Appeal held that the plaintiff had not satisfied the burden of proof which was hers and consequently set aside the judgment. The plaintiff appealed to this Court.

Held (Fauteux and Abbott JJ. dissenting): The appeal should be allowed and the judgment at trial restored.

Per Taschereau C.J. and Cartwright and Spence JJ.: The duty of the Appeal Court was to consider whether the trial judge, who had the advantage of hearing and seeing the witnesses, had come to a conclusion which could not have been reached by a reasonable man. In civil proceedings, the party who has the burden of proof is not called upon to establish his allegations so rigorously as to leave no room for doubt. It is sufficient if he has produced such a preponderance of evidence as to show that the conclusion he sought to establish was the most probable of the possible views of the facts. In this case, the trial judge who had the advantage of hearing and seeing the witnesses and who carefully considered all the evidence, including the direct evidence of the defendant, the evidence as to the circumstances, and the opinion of the experts, had weighed the probabilities and had come to a conclusion which was a reasonable one.

Per Fauteux and Abbott JJ., dissenting: Where a judgment upon facts has been rendered by a Court of first instance, and a first Court of Appeal has reversed that judgment, a second Court of Appeal should interfere with the judgment on the first appeal only if clearly satisfied that it was erroneous. This the appellant has failed to do.

APPEAL from a judgment of the Court of Queen's Bench, Appeal Side, Province of Quebec', reversing a judg- Taschereau C.J. and Cartwright, Fauteux, Abbott and Spence JJ.

Q.B.

R.C.S.

ment of Lizotte J. Appeal allowed, Fauteux and Abbott JJ, dissenting.

J.:-In this case two actions were tried together; the action of Provencher v. Lavoie and the present action. Lizotte J. gave reasons in very considerable detail in the Provencher v. Lavoie action. In that action, Provencher as plaintiff had the onus and Lizotte J. said in the course of his judgment:

Lizotte J. then then turned to give judgment in the action of Ratte v. Provencher, the subject of this appeal. The largest part of his brief reasons therein are concerned with the quantum of damages but the learned trial judge did say:

Then, lest it be thought that the learned trial judge had failed to note that the onus had shifted in this action to the present appellant, he continued:

Thereby demonstrating that in the paragraph first quoted the learned trial judge had relied on Provencher's failure to discharge the onus in the action in which he was plaintiff as only one of the reasons for dismissing the action and that he was of the opinion that the appellant, here Ratt, in her action, had discharged this burden.

There had been only one eye-witness to the accident which caused the death of the late Lavoie, the defendant Provencher. The learned trial judge, after carefully review- J ing the latter's evidence and quoting from it extensively, came to the conclusion that he could accept it only in so far as it established Provencher's nervousness, vagueness of memory and inability to explain. The learned trial judge was of the opinion that at a critical time in the accident, a definite finding of an act of negligence on Provencher's part. In so proceeding, the learned trial judge was taking advantage of the opportunity to hear and consider the witnesses and decide on the credibility of their evidence. The learned trial judge then turned to the two remaining parts of the evidence, i.e., the testimony of witnesses as to their investigations on the scene and the area surrounding it as well as the vehicles, and secondly, evidence given by the experts, Dr. Gravel and Mr. Royer, for the plaintiff and the defendant, respectively.

The judgment of the Court of Queen's Bench (Appeal Side)' appears to proceed on the basis that neither of these witnesses having given evidence from their own observation but merely from what they had learned, and their evidence concerning inferences from such facts and the theories they developed from them, the Court in Appeal was as well qualified to decide whether it would accept such theories as was the learned trial judge. The effect of the two written judgments in the Court of Queen's Bench (Appeal Side) would seem to be summarized in the statement of Montgomery J.: I have come to the conclusion that the judgment of the Court of Appeal of Queen's Bench is in error for these reasons:

Firstly, the learned trial judge heard much evidence of the facts in addition to the expert testimony, weighed it and assessed both its credibility and its probative value. Some of the facts, the learned trial judge regarded as most important; for example, the evidence of the various witnesses as to Provencher's speed when passing through the J. Village of Ste. Angele. It should be noted they not only gave evidence as to Provencher's speed but also that they noticed no automobile resembling that driven by the late Lavoie following Provencher shortly behind him. Therefore, in all probability, and that is sufficient at any rate in a civil action, Lavoie's vehicle was in front of Provencher's and could not have been attempting to pass Provencher's at the time of the accident. Again, the learned trial judge was called upon to consider the evidence of Constable Levesque as given at the trial in reference to the tire marks crossing the centre line of the road, south of the scene of the impact, and to contrast it with the constable's different evidence at the coroner's inquest. Indeed, the evidence of the defendant Provencher given at trial also differed from his evidence at the coroner's inquest. Much of the evidence at trial as to circumstances was such that it could only be appreciated and assessed properly by the trial judge who heard it and his finding thereon should not be interfered with.

It is most significant to me that the learned trial judge first cited and analyzed this evidence as to circumstances in his reasons, only then turned to the consideration of the evidence given by the expert witnesses and concluded that the theory of Dr. Gravel coincided exactly with his own view as to what occurred. I am of the opinion that the learned trial judge would have arrived at the same conclusion if he had not had the advantage of Dr. Gravel's evidence.

Secondly, one of the expert witnesses, Dr. Gravel, whose theories were accepted by the learned trial judge, had made five different inspections of the scene of the accident. The first of these was on the 14th or 15th of October 1955, only about two weeks after the accident, when he had the opportunity to personally observe many of the signs of the accident at the site and to inspect both vehicles at a nearby garage. Dr. Gravel was therefore in a position to give evidence upon what he actually had seen himself and to use his accurate first-hand knowledge of these observations to evolve his theory. Mr. Royer, the expert witness called by the defendant, on the other hand, went to the bridge site SpenceJ. but he could not say when and the learned trial judge found:

It would appear that Mr. Royer never inspected the vehicles. Under these circumstances, it is not surprising that the learned trial judge preferred to accept the evidence of Dr. Gravel whose testimony he described in these words: As an illustration of the much more convincing character of the evidence of Dr. Gravel, there may be considered the critical issue of whether Provencher overtook the late Lavoie from the rear and in a delayed attempt to avoid his vehicle by turning out and passing it to the left struck the left rear corner of that vehicle or, whether on the other hand, the late Lavoie overtook and passed Provencher's truck, and in passing him or turning in to the right thereby clipped the left front corner of the Provencher truck with the right rear fender or bumper of his own vehicle. Upon that issue, Dr. Gravel gave evidence after inspecting both vehicles and determining in his opinion that the impact on the left rear corner of the Plymouth, the late Lavoie's automobile, was a heavy one. On either the theory advanced by Dr. Gravel or that advanced by Mr. Royer there had been no other heavy impact directly on the rear left corner of the Lavoie vehicle. Mr. Royer, on the other hand, merely from an inspection of the photograph, exhibit D-2, gave as his opinion that the impact on the left rear corner of the Lavoie automobile was too light to have driven it into the bridge pillar. Again, Mr. Royer refused to accept Dr. Gravel's theory that the impression of the front of the Provencher truck on the right side of the Lavoie automobile was made when the latter swung in an are to the left after its right front corner had been driven into the pillar by the impact of the truck upon its left rear corner. Mr. Royer was of the opinion that if the impact had been in that fashion J. the Provencher truck would have continued past the Lavoie automobile on its left and never had an opportunity to mark the right side of the vehicle. It would seem highly unlikely that the Provencher truck could possibly have squeezed past the left side of the Lavoie car on that bridge in the fraction of a second available after the car was driven forward into the pillar and before it pivoted to the left in the direct path of the truck.

These illustrations I have cited, and they may be multiplied, to demonstrate that the learned trial judge had a perfectly sound basis for accepting the explanation of Dr. Gravel. Indeed when, as he stated, the learned trial judge had, apart from Dr. Gravel's opinion, come to the same conclusion such considerations must have influenced him.

It is true that the evidence adduced by the appellant was far from complete and irrefutable. As I have noted above, Montgomery J. in the Court of Queen's Bench (Appeal Side) found it did not discharge the onus on the plaintiff. Hyde J., in the same court, said:

In my view, with respect, the learned judges of the Court of Queen's Bench (Appeal Side) applied to the proof a standard beyond that required in a civil action. That standard would seem to be exactly the same in civil actions in Quebec as it is in common law jurisdictions and was put simply and clearly by Duff J., as he then was, in Clark v. The King':

COUR SUPRtME DU CANADA he seeks to establish is substantially the most probable of the possible RAWL~ views of the facts.

In Rousseau v. Bennett', the present Chief Justice of this Spence J. Court, said at p. 92:

Mais preuve peut 6tablir des pr6somptions de faits et 'article 1242 du Code Civil nous dit comment elles doivent 8tre appr6cides. Cet article se lit ainsi:prisomptions qui ne sont pas 6tablies par la loi sont abandonndes A la discr6tion et au jugement du tribunal.,

Ce que la loi a voulu c'est que ces pr6somptions soient laissies A la discr6tion du juge qui voit et entend les t6moins, et pour qu'une Cour d'Appel intervienne dans l'exercice de cette discrition, il faut n~cessairement trouver une erreur de la part du juge au proces, erreur qu'on ne trouve pas dans le cas prlsent.

L'honorable Juge de premibre instance a jug6 suivant la balance des probabilitis, ce qui est la preuve requise en matibre civile, et je crois que le jugement de la Cour d'Appel est erron6 en droit quand cette dernibre conclut qu'il n'y a pas de prisomption tellement forte qu'elle exclut toute autre possibilit6. Ce n'est pas ce que la loi requiert. Il y a une distinction fondamentale qu'il faut faire entre le droit criminel et le droit civil. En matibre criminelle, la Couronne doit toujours prouver la culpabilit6 de l'accus6 au deld d'un doute raisonnable. En matibre civile, la balance des probabilitis est le facteur dcisif.

Les tribunaux doivent souvent agir en pesant les probabilit6s. Pratiquement rien ne peut 6tre math6matiquement prouv6. (Jdr6me v. Prudential Insurance Co. of America ((1939) 6 Ins. L.R. 59 at 60), Richard Evans & Co. Ltd. v. Astley ((1911) A.C. 674 at 678), New York Life Insurance Co. v. Schlitt ((1945) S.C.R. 289 at 300), Doe D. Devine v. Wilson (10 Moore P.C. 502 at 532)).

In Champagne v. Labrie , Rivard J. said at p. 487: Les prisomptions qui rdsultent des faits sont laiss6es h l'appr6ciation du tribunal, A sa discr~tion et A son jugement (C.C., art. 1242). Il n'est pas besoin de rappeler que notre Code civil n'impose pas au tribunal les directives que prescrit le Code Napol6on dans I'exercice de la discrition que la loi lui laisse en cette matibre (Code Napoldon, art. 1858). Je crois que le premier juge en appr~ciant cette preuve de circonstances a dicid6 suivant la pr~pond6rance des probabilitis et qu'il n'y a pas lieu pour cette Cour d'intervenir sur ce point.

To balance these probabilities, the trial judge may draw inferences: Simpson v. London, Midland and Scottish Riwy. Co.', per Viscount Dunedin at p. 357.

1 [19561 S.C.R. 89.

[19611 Que. Q.B. 481. 3 [19311 A.C. 351.

R.C.S.

The duty of the appellate court was put by Davis J. in Danley v. C.P.R.1, quoting Lord Shaw in Kerr v. Ayr Steam Shipping Co. Ltd.

For the reasons which I have outlined, I am of the opinion that the learned trial judge who had the advantage of hearing and seeing the witnesses and who carefully considered all the evidence, including the direct evidence of the respondent, the evidence as to the circumstances, and the opinion of the experts, has weighed the probabilities and has come to a conclusion which is a reasonable one. I would, therefore, allow the appeal with costs and restore the judgment of Lizotte J.

J. (dissenting) :-This action arose out of a collision between two automobiles which occurred on September 30, 1955, in which the driver of one of the vehicles, the husband of the appellant, was killed. The facts are fully set out in the judgments below and in the reasons of my brother Spence, which I have had the advantage of considering.

The only surviving witness of the accident was the respondent Provencher, the driver of one of the cars involved. The learned trial judge found his evidence vague and confusing as to what happened at the time of the collision and refused to accept it. In maintaining the appellant's action therefore, he relied upon inferences drawn from the circumstances surrounding the accident and upon theories as to how it happened, advanced by two expert witnesses. That judgment was unanimously reversed by the Court of Queen's Bench.'

The burden of proving negligence was upon the appellant, and the learned judges in the Court below refused to