CASE AND COMMENT
CHAPUT v. ROMAIN ET AL.
CONSTITUTIONAL LAW –
POLICE CONDUCT –
–
CIVIL RESPONSIBILITY –
QUANTUM OF DAMAGES – MORAL DAMAGES –
FREEDOM OF RELIGION
PUNITIVE DAMAGES.
The recent judgement of the Supreme Court of Canada, Chaput v. Romain
et al.,’ is noteworthy in several respects. The highest court of the nation
pronounced upon the scope of religious freedom in Canada, and defined the
standard of conduct to which state officials must adhere in their official rela-
tionships with citizens. Moreover, the amount of damages awarded, in con-
junction with certain dicta of several of the judges on the nature and function
of civil damages, is pregnant with suggestion.
The facts which gave rise to the action were relatively simple and were not
seriously disputed. “Le demandeur appelant est un ministre du culte des
T~moins de J6hovah. Le 4 septembre, 1949, un autre ministre (Mr. Gotthold)
qui professe ]a m~me religion, se rendit A Chapeau, et l, chez le demandeur,
pr6sida i une cirmonie religieuse. Dans le domicile de l’appelant, oi 6taient
r~unies environ trente ou quarante personnes, il exposa les doctrines auxquel-
les il croyait, lut certains passages de la Bible, et la preuve ne r~v~le pas qu’il
n’y ait ien eu de dit qui fut s6ditieux. Tout se passa dans le calme le plus
complet.’ 2 The meeting commenced at two o’clock in the afternoon. Some
forty-five minutes later, the three defendants, Officers of the Quebec Provincial
Police,3 entered the house. “The respondents went inside and, according, to
them, after observing the proceedings for approximately two minutes, Chart-
rand told the minister, then reading from the Bible, to discontinue, that the
meeting would have to be broken up and those present dispersed . ..The
respondents then seized the Bible Gotthold had been reading, the hymn books,
a number of booklets on religious subjects published by Jehovah’s Witnesses
and the collection box, dispersing the meeting, and conducted Gotthold to the
ferry which plies across the Ottawa River between Chapeau and Pembroke,
Ontario, upon which they placed him. No charge of any kind was at any time
-Judgement delivered Nov. 15, 1955, as yet unreported. All quotations are from a
transcript of the judgement.
2per Taschereau J.
8Chartrand was a member of the Judicial Section of the Quebec Provincial Police.
Young and Romain were members of the Traffic Department of the Provincial Police.
No. 2]
CASE AND COMMENT
laid against any of the participants in the meeting and none of the items
seized have ever been returned. ‘ 4
It is now settled that the sect of Jehovah’s Witnesses constitutes a religious
“class of persons”. 5 Their right of freedbm of religion, which exists under
Canadian law, is to be protected. Taschereau J. expounded this segment of
the law in stirring but accurate terms:
Dans notre pays, il n’existe pas de religion d’Etat. Personne n’est tenu d’adhrer i
une croyance quelconque. Toutes les religions sont sur un pied d’galit6, et tous les
catholiques comme d’ailleurs tous les protestants, les juifs, ou les autres adh6rents
des diverses d6nominations religieuses, ont ]a plus enti~re libert6 de penser comme
ils le d~sirent. La conscience de chacun est une affaire personnelle, et l’affaire de
nul autre. I1 serait d~solant de penser qu’une majorit6 puisse imposer ses vues reli-
gieuses A. une minorit& Ce serait une erreur fhcheuse de croire qu’on sert son pays
ou sa religion, en refusant dans une province, A une minorit6, les m~mes droits que
l’on revendique soi-mnme avec raison, dans une autre province.”
The Freedom of Worship Act6 was relied on by Locke J. While the other
judges do not cite authority for the proposition that there is freedom of
worship in Canada, the criminal law in no way deprives the adherents of any
religion of the right of freedom and worship, and it is a fundamental principle
in a democracy that what is not expressly prohibited is permitted. The
harmony of the bench upon this matter was achieved because a basic issue
in Canadian constitutional law, whether “religion” falls within section 91 or
section 92 of the British North America Act, 1867, did not arise in the case
at bar. The problem was considered in the Sauinur Case,7 in which Locke,
Rand, Estey, and Kellock JJ. held religion to be a matter falling under Federal
jurisdiction while Rinfret C.J.C., Kerwin and Taschereau JJ. maintained that
it was under Provincial jurisdiction as religion fell within Property and Civil
Rights in the Province, Cartwright and Fauteux JJ. expressing no opinion.8
The words of the learned judges in the Chaput Case do not give- rise to the
conclusion that there is a permanent, unalterable right of religious freedom in
Canada. There was no attempt to commence the creation of a “Bill of Rights”
by judicial legislation, for, to do so, it would have been necessary to decide
that “religion” did not fall within either section 91 or section 92 of the B.N.A.
Act, 1867. As long as “exclusive” jurisdiction over religion is retained by
either the Federal Parliament or the Provincial Legislatures, the freedom of
religion which is enjoyed at present, may be curtailed at some future date.
The Freedom of Worship Act, a statute which is for the most part declar-
atory,9 provides that:
4per Kellock J.
Saumur v. City of Quebec [1953] 2 S.C.R. 299. Perron v. School Trustees of the
School Municipality of Rouyn [1955] Q.B. 841. See also (1955) 2 McGill L.J. 42.
614-15 Vict., cap. 175; a pre-Confederation statute passed by the then Province of
Canada, which, with slightly different wording, now appears in (1941) R.S.Q. cap. 307.
7Saumur v. City of Quebec [1953] 2 S.C.R. 299.
8Cartwright J., with whom Fauteux J. agreed, appeared to favour the aspect doctrine.
914-15 Vict. cap. 175. Part of the preamble reads as follows: “Whereas the recognition
of legal equality among all Religious Denominations is an admitted principle of Colonial
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. .
. the free exercise and enjoyment of Religious Profession and Worship, without
discrimination or Preference, so as the same be not made an excuse of acts of
licentiousness, or justification of practice inconsistent with the peace and safety of the
Province, is by the constitution and laws of this Province, allowed to all Her
Majesty’s subjects within the same.
However, as Rinfret C.J.C. has pointed out:
La jouissance et le libre exercice du culte d’une profession religieuse ne jouit pas,
en vertu du ch. 307, R.S.Q. 1941, d’une autorisation absolue ….
D’ailleurs il serait
exag~r6 de pr~tendre que, par application du ch. 307, aucune manifestation religieuse
ne pourrait 6tre empEch~e par r6glement.10
The law is clearly set forth by Cartwright J.:
Under the British North America Act …
the whole range of legislative power is
committed either to Parliament or to the Provincial legislatures and competence
to deal with any subject matter must exist in one or other of such bodies. There
are thus no rights possessed by the citizens of Canada which cannot be modified by
either Parliament or the legislature, but it may often be a matter of difficulty to
decide which of such bodies has the legislative power in a particular case.U
The statement of Taschereau J. quoted above reveals that the learned Judge
has not altered his opinion that “religion” is a matter of Civil Rights within
the Province. Indeed, it is to the Provinces that he addresses himself on the
question of policy. The words reveal a fear that a religious majority in a
province might attempt to impose its views upon a religious minority through
special legislation; and would be meaningless unless this were felt to be a
constitutional possibility.
Thus it is clearly seen that the decision in the Chaput Case did not establish
a fundamental right which cannot be impaired by legislation, and in no way
extended the law on this point. To do so was unnecessary, as the case raised
the question of the degree of freedom under the law as it exists, and the
answer was merely expository in nature.
Chaput brought an action in damages under Art. 1053 C.C.12 for $5005.15,13
concluding for “a recovery of both special and general as well as moral and
punitive damages.”‘1 4 The action was dismissed by the Superior Court,15 which
judgement was confirmed by the Court of Queen’s Bench. 10 However, the
Supreme Court reversed the lower courts, a full bench unanimously con-
Legislation; and whereas in the state and condition of this Province to which such
principle is peculiarly applicable, it is desirable that the same should receive the sanction
of direct Legislative Authority recognizing and declaring the same as a fundamental
principle of our civil polity.”
10Saunzuy” v. City of Quebec [1953] 2 S.C.R., at p. 314.
11Ibid, at p. 384.
121053 C.C.: “Every person capable of discerning right from wrong is responsible for
the damage caused by his fault to another, whether by positive act, imprudence, neglect
or want of skill.”
3 The $5.15 represented the value of the pamphlets seized.
14See appellant’s factum submitted to the Court of Queen’s Bench.
15 Superior Court, Pontiac, Fortier J., June 10, 1952.
10119541 B.R. 794.
No. 2]
CASE AND COMMENT
cluding that the defendants Chartrand, Young, and Romain had committed
a delict which rendered them jointly and severally liable for $2,000. damages,
with costs. 1 7
The three constables raised several grounds of defence, alleging that:
1. Plaintiff was in possession of pamphlets containing seditious libel, and
was creating animosity and hate between different classes of society.
2. Defendants were public officers fulfilling duties as peace officers duly
appointed, and that they were, at the relevant time, in the scope of their duties
as members of the Provincial Police.
3. Defendants were in good faith and had colour of right, as they had
reasonable and probable cause and they relied on the Court of Queen’s Bench
decision in the Boucher Case,’8 thereby becoming entitled to the protection
of the Magistrates’ Privileges Act.19
4. The defendant was acting under superior instructions to maintain law
and order and to do specifically what he did.
5. That there was no notice as required by law.
6. Chartrand pleaded the benefit of the short prescription of s. 5, Mag-
istrates’ Privileges Act.
The Court of Queen’s Bench characterized the suit as an action for damages
due to the violation of the right of property. Bissonnette J. ignored the inter-
ference with the right of worship and of assembly, and the damage to reputa-
tion, concluding that although the respondents entered plaintiff’s house without
a warrant, this was not illegal as it was a public meeting which had been
advertised as such. The learned judge suggested the only person with a
cause of action arising from the events was ‘Torateur Gotthold”, as he alone
suffered prejudice.
With this view of the legality of the original presence of the respondents
in the residence, Abbott J. agreed. Taschereau J. found that while there may
have been some semblance of good faith at the outset, it did not continue, if
it ever existed. However, it is submitted that the Supreme Court was correct
in holding that the entry was not the fact that gave rise to the cause of action:
facts subsequent to the entry of the constables created a cause of action, for
religious rights and feelings were outraged and Chaput’s reputation was dam-
aged. It was in this light that the defences were examined by the Court.
It was unanimously agreed that the evidence disclosed nothing of a seditious
nature. However, defendants pleaded their good faith, suggesting that they
had reasonable and probable cause to expect a breach of the law, that they
were protected .y the decision of the Court of Queen’s Bench in Boucher v.
‘7 Judgements of some length were written by Kellock J., with whom Rand J. concur-
red, and Taschereau J., with whom Kerwin C.J.C. and Estey J. concurred. Shorter judge-
ments were written by Locke J., Abbott J., and Fauteux J., with whom Cartwright J.
concurred.
18Boucher v. Rex [1949] Q.B. 238.
19(1941) R.S.Q. cap. 18.
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Rex, and therefore were entitled to the benefits of the Magistrates’ Privileges
Act.
The Court of Appeal had held that the onus was on the plaintiff to prove
the absence of reasonable and probable cause and that the constables were
acting outside the scope of their duty, which would render them in bad faith.
In the opinion of Bissonnette J., the plaintiff failed to discharge the burden
of proof and therefore the Magistrates’ Privileges Act protected respondents.
This reasoning did not avail respondents in the Supreme Court, quite cor-
rectly, it is suggested. With respect to the learned judges of the Court of
Appeal who found otherwise, it is difficult to comprehend what further evidence
was necessary to discharge the burden of proof.
Abbott J. reasoned:
En arrivant a la r~union, les intim~s purent imm~diatement se rendre compte de son
caractre religieux, et que tout se passait dans l’ordre et la paix. En dispersant l’as-
sembl~e, les intim~s en consequence, ne pouvaient plus Etre considrs comme agis-
sant de bonne foi; dans l’exercice de leurs fonctions. Ils devaient savoir qu’ils n’6taient
investis d’aucun droit les justifiant d’entraver cette runion.
The actions of the police, Locke J. emphatically argued, brought them
within the then sections 199 and 200 of the Criminal Code. 20 One cannot
disagree with the learned Judge when he states:
I must confess my inability to understand how it can be suggested that a police
officer is acting in the execution of his duty in committing a criminal offence. I am
equally unable to understand how a person can deliberately commit a crime or a tort
in good faith.
Taschereau J. quite properly distinguished the application of a defence of
reasonable and probable cause, which will avail in cases of malicious prosecu-
tion, from the case at bar, as here there is fault because the tortious act is
forbidden by law:
II me semble impossible de dire en consequence que les intim~s ont agi avec cause
raisonnable quand un statut leur interdit de poser l’acte qui leur est reproch6.
Nor could respondents rely on the decision of the Court of Appeal in
Boucher v. Rex. Bissonnette J., in his decision in the Chaput Case, after some
strong obiter,21 concluded that the respondents could infer from the Court of
Appeal decision in the Boucher Case that the pamphlets of the group were
seditious:
.. quand les d~fendeurs … empchaient cette reunion et saisissaient les pamphlets
seditieux, ils savaient qu’ils pouvaient agir ainsi puisque la plus haute autorit6 judi-
ciaire autorisait leur acte.
With respect, it was not the highest judicial authority “within the province.”
The judgement was reversed on appeal to the Supreme Court,22 and so was
20These provisions concerning obstructing an officiating clergyman, or doing violence
to or arresting an officiating clergyman are now under art. 161 of the new Criminal Code.
21″A tout citoyen de cette province il 6tait notoire que les t~moins de J6hovah avaient
des activit6s d’un caractare s~ditieux, particuli6rement de leurs attaques inqualifiables
contre la religion catholique … Tous savaient qu’ils 6taient honnis de Quebec.” [1954]
B.R. 794, at p. 798.
22Boucher v. Rex [1951] S.C.R. 265.
No. 2]
CASE AND COMMENT
not a correct finding in law. Moreover, even if it were, it would not sub-
stantiate the defence. In the words of Kellock J.:
Bissonnette J. as well as Hyde J., who based his judgement on this ground, are
tinder complete misapprehension as to what was actually decided by the Court of
Queen’s Bench in Boucher v. Regem.
The charge to the jury in the Boucher Case referred to one pamphlet only,
and that pamphlet was not on appellant’s premises. It was not for the police
(or the Court) to widen the application of the finding in the Boucher Case
to include all activities and publications of the sect when only one publication
was under consideration.
The Magistrates’ Privileges Act23 was considered by the Court of Queen’s
Bench to justify respondents’ actions on the failure of the plaintiff to prove
they were in bad faith. The Supreme Court, having come to different con-
clusions on the question of good faith, was logically bound to conclude that
the statute offered no justification for defendants’ acts.
The relevant sections of the Magistrates Privileges Act are as follows:
5. No such action or suit shall be brought against any justice of the peace,
officer or other person acting as aforesaid, for anything done by him in the perform-
ance of his public duty, unless commenced within six months after the act committed.
7. Any such justice of the peace, officer or other person, shall be entitled to the
protection and privileges granted by this act in all cases where he has acted in good
faith in the execution of his duty, although, in doing an act, he has exceeded his
powers or jurisdiction, and has acted clearly contrary to law.21
The privileges accorded by the Act were merely procedural, granting no
relief from delictual responsibility. As was stated by Fauteux J.:
l’article
Cette loi sp~ciale ne constitue pas un obstacle A la responsibilit6 idictie
1053 C.C.; les dispositions de cette loi sp6ciale impliquent, au contraire, l’application
de cet article.
Kellock J. analyzed the nature of the good faith necessary to invoke the
procedural provisions of the Act:
What is required in order to bring a defendant within the terms of such a statute
as this is a bona fide belief in the existence of a state of facts, which, had they
existed, would have justified him acting as he did.
He must not merely believe he has a right; he must believe in a state of facts,
which, if true would give him the right. A personal error in law is not a
defence. Respondents could not claim they were in the performance of their
public duty and so the procedural defences failed.
The Court clearly pronounced upon the duties of a peace officer:
The public duty annexed by law to the office of a peace officer [is] a duty to
maintain the peace, to enforce the law by preventing violations of it and by taking
appropriate action to bring transgressors to justice. Every proper act of an officer
against Dr by way of invading the ordinary rights of a citizen must be done with
such a purpose; there must be the existence or the belief in the existence of facts
which give rise to the duty and call for action. At the moment respondents became
. . the only duty that arose was to do
aware of the nature and facts of the meeting.
nothing in the way of interfering… I assume their belief was that, in some way or
23(1941) R.S.Q. cap. 18, particularly arts. 2, 5, 7.
241talics are those of the Judges.
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other, by holding the meeting, those present were committing an offence, but such
a mistake, a mistake as to what is criminal, can never give rise to a public police
. . [What respondents did] was not in execution of a public duty, but in
duty .
carrying out an illegal instruction.2 5
The orders to break upthe meeting were issued by one Sergeant Perreault
of Montreal upon reference by Chartrand, who had received a telephone call
from the local cur6, Mr. Harrington, in respect of the meeting. The fact that
appellants’ activities were not approved of by the local cur6 was no excuse for
the police to interfere, and consequently Sergeant Perreault’s instructions were
illegal. Although Bissonnette J. maintained that the fact respondents were
acting under instructions constituted a complete defence, as Kellock J. pointed
out, he did -not refer to any authority in support of this view. The Supreme
Court held that no one can authorize an illegal act.28 The order of Perreault
would merely make him jointly and severally liable for damage caused in
carrying out his illegal order.
The readiness with which the respondents accepted the illicit order is nothing
less than shocking, revealing as it does, in some of the Provincial Police, a
state of abysmal ignorance of the law and of their duty under the law.
Chartrand, on the witness stand was asked, “Q. You never bothered about
the law, to see if it was illegal? A. No, I have nothing to do with that.”
Young “just went with Mr. Chartrand at his request; I did not definitely
[but] there ought to be some reason for
understand why we were going…
us going there … when he gets orders there must be something wrong.”2
On the question of suspected sedition, the respondents admitted “that they
had not read any of the pamphlets either before or after the seizure.” 28 Romain
admitted not knowing the meaning of the word “sedition”. Young gave
evidence that before going into the house Chartrand told him that literature
would have to be taken for evidence to find out if it was of a seditious nature
or not. It is clear that the respondent police officers were unable to tell at a
glance that the Douay Bible –
the Catholic Bible – was not seditious I
The entry and seizure were made without a warrant of any kind having
been obtained or even applied for. Had a warrant been procured, the situation
would have been considerably different. The police would not have been
responsible: Chaput’s sole remedy would have been an action in damages due
to malicious prosecution.
The Court unanimously rejected all the defences of the respondents, and
awarded appellant $2000. damages, Locke J. being of the opinion that the
award should have been higher.
In awarding damages, the Court made several pronouncements which give
rise to the following interesting questions. What is the nature of moral dam-
2 5 per Kellock J.
2 8 See Dicey, Law of the Constitution, 9th ed., p. 193, quoted by Kellock J.
2 7 1talics added.
2 8The trial evidence is quoted in Kellock J.’s judgement.
No. 2]
CASE AND COMMENT
ages under civil law? Can Quebec civil tribunals award punitive damages?
What considerations govern the quantum of damages to be awarded when
only moral damages are to be granted by the court?
The plaintiff, in his conclusions, asked the court for a “recovery of both
special and general as well as moral and punitive damages.”2 9 The Supreme
Court agreed that Chaput had a right to damages. It is convenient to set out
the specific words of the Judges:
Kellock J. stated:
The appellant suffered an invasion of his home and his right of freedom of worship
was publicly and peremptorily interfered with. In addition to that his property was
seized and kept. He was humiliated in his own home before a considerable number
of people … While the appellant is not, in my opinion, entitled to recover punitive
damages, he is entitled to recover moral damages, a term which, for the present
purposes, may be said to be analogous to general damages under common law.
(Dalloz, Nouveau REpertoire, Vol. III, n. 205.)
Taschereau J. held that plaintiff:
a subi des dommages moraux, pour lesquels il a droit A une reparation . .. un mon-
tant suffisant pour justement compenser la victime, mais pas si Olev6, qu’il soit dis-
proportionn6 aux dommages subis
Locke J. affirmed that:
The appellant’s right to maintain his good name and to enjoy the privileges con-
ferred upon him by the [Freedom of Worship Act] are absolute and very precious
rights, and he is entitled to recover substantial general damages3 o . . . The moral
damages allowed in cases of this kind in Quebec do not differ in their nature from
the general damages allowed at common law for wrongs such as those inflicted upon
the appellant by the respondants in this matter.
The learned Judges characterized the cause of action as the breach of the
rights of freedom of religion and free assembly, illegal invasion of a private
home, and damage to reputation.
It is submitted, with respect to the learned Judges who equated moral
damages under civil law to general damages under common law, that there are
certain differences which render it desirable that the Courts preserve civil
law terminology when the subject matter under consideration falls within the
ambit of the Civil Law.”‘ A cause of action which will give rise to substantial
moral damages under civil law, might not, under common law, call for an
award of general damages. It seems probable that the attorney for the plaintiff-
appellant,32 being learned in both the Common and the Civil Law, incorporated
the common law term, general damages, into his plea for civil law damages,
and this term was taken’up by Kellock and Locke JJ., both of whom have a
common law background. No benefit accrues from importing the common law
term into a judgement awarding moral damages under Civil Law.
Plaintiff, in the case at bar, asked for damages which would be sufficiently
high to compensate him, and which would act as a preventive with regard to
20See appellant’s factum submitted to the Court of Queen’s Bench.
301talics added.
B1See infra.
32W. Glen How, of the bars of Quebec and Ontario.
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possible future derogations from duty by police officers. These delicts, it was
argued,3 3 ought to be visited with sufficient damages to make law enforcement
officials realize that the liberty of the citizens of a free nation is not to be
treated as a matter of small importance. Moreover, as the action in damages
is often the sole remedy available to the ordinary citizen, it is essential that it
be efficacious: the citizen must find it worth his while to go to court to have
the law enforced. The administration of justice suffers directly
if the
quantum of damages awarded is insignificant.
In Prime v. Keiller, Rainville, and the City of Montreal,3 4 plaintiff sought
$500. for false arrest. Tyndale J., as he then was, stated:
Plaintiff did not prove any specific damages. It
is clear, however, that he went
through a very humiliating experience and is entitled to some monetary reward.85
However, plaintiff was granted merely $100. and the costs of an action
for $200.
Similarly in Brault v. City of Montreal236 plaintiff received what appears to
be an inadequate award. The court found that, to an innocent question:
. . . the constable replied in very vulgar language . . . The constable struck [plain-
tiff] in the face with his fist and broke his glasses, and calling someone to his
assistance, took him across the street and stood him there for some time in the
midst of a crowd of onlookers until the patrol arrived, when the plaintiff was taken
to the police station, stripped, and lodged in a cell where he remained [until bailed
out] .
. The complaint, as
subsequently laid, was an afterthought and false in every respect, to the knowledge
of complainant.
. The arrest was made without reasonable cause .
.
.
Brault sued for $999.99 and was awarded $336.40.
A similar argument in respect of quantum of damages can be made for
cases based on insults to religion. In Ortenberg v. Plamondon,3 7 an action
seeking $500. for public insult to plaintiff’s religion and a consequent loss of
business, two of the defendants were condemned to pay a total of $75.
The Criminal Law provides rules by which items may be seized for pos-
sible use as evidence in a criminal trial. In the case at bar, the police, without
investigating what they were seizing, seized a Douay Bible, a number of
pamphlets, and the cigar box used to collect money. The report of the police
shows the disrespect for law and order that characterizes some of those whose
special function it is to uphold the law:
Nous avons tout-saisie tout les livres qui avait dans la maison. 38
The items seized were never returned, although no criminal charge was
laid. Section 432 of the new Criminal Code provides for a means of securing
the return of items (lawfully) seized. This provision is new law, and appears
3 3 See appellant’s factum submitted to the Court of Queen’s Bench.
34[1943] R.L. 65.
35Ibid, at pp. 70, 71.
36[1944] S.C. 185.
37(1915), 24 K.B. 69.
38Quoted in Kellock J.’s decision.
No. 2]
CASE AND COMMENT
to be necessary law.39 Similarly, provision must be made to secure a person’s
rights against illegal seizures. The courts have held fairly consistently that
evidence seized without a warrant can be produced at a Criminal trial and
will appear as an exhibit in the record. The only remedy for the illegal seizure
is a civil suit against the officer. 40 The Civil Courts should make effective
the sole sanction to secure enforcement of this rule of law by granting sufficient
damages.
Pothier, appropriately in his time, advocated a conservative view of
damages:
II faut mime selon les diffrents cas apporter une certaine mod&ration A la taxation
et estimation des dommages dont le d~biteur est tenu.4 1
II doit 8tre laiss6 a la prudence du juge, mime en cas de dol, d’user de quelque in-
dulgence sur la taxation des dommages et intirets.42
In his analysis of the Court’s tendencies in awarding damages, Baudouin
notes that judges:
… ont une tendence naturelle malgrE les principes, a rduire le montant des dom-
mages-intr6ts. 43
Dans la pratique jurisprudentielle . . . une certaine habitude s’est d6velopp6e qui
tend, malgr6 ,l’nonc6 de principe, ! att~nuer ou tout au moins A proportionner le
montant de la reparation non plus au montant du prejudice mais au degr6 de cul-
pabilitE.44
Whether or not one approves of this tendency, it can be argued that the courts
ought to apply the same considerations in a positive way in appreciating the
amount of damages when there is flagrant culpability. As Planiol argues:
Les juges usent parfois de leur pouvoir souverain d’appr&ier le montant du dom-
mage pour allouer une indemnitE d’autant plus 6lev~e que la faute est plus grave.
C’est attribuer aux dommages-int&rts un r6le de sanction, en m6me temps qu’un
r6le de r~paration.45
Planiol considers that the award may be punitive and compensatory at one
and the same time.
The Supreme Court, in the case at bar, stated that punitive damages were
not to be granted. Moral damages are purely compensatory, even though no
pecuniary loss be suffered.46 The decision of Taschereau J. is central to the
discussion of damages in the Chaput Case, as Locke, Kellock, and Abbott JJ.
39See Martin’s Crimial Code, Toronto, 1955, annotation at p. 719.
40The Criminal Law is stated in, among many decisions on this point, Rex v. Honan
20 C.C.C. 10; Rex v. Wright 52 C.C.C. 285; Rex v. Lee Hai 64 C.C.C. 49; Rex v.
Gilchrist 65 C.C.C. 356. Its application by the Court of Appeal in Quebec is found in Rex
v. Hawkins 42 C.C.C. 305: “It was urged that these officers penetrated into the sanctity
of the accused’s castle and illegally took possession of these cheques. That may be, and
it may be that the accused might have some recourse against the intruders into his
castle . .. ,” but the evidence was accepted. Per Greenshields J., at p. 307.
41Pothier, Obligations, pt. I, ch. ii, art. 3, no. 160.
42Pothier, op. cit., no. 168.
43Baudouin, Le Droit Civil de la Province de Quibec, Montreal, 1953, p. 872.
44Baudouin, op. cit., p. 846.
45Planiol, Traiti Pratique de Droit Civil Frangais, 1952, no. 682. Italics are added.
46See Nadeau, Traiti de Droit Civil, (Trudel series), vol. 8, no. 582.
McGILL LAW JOURNAL
[Vol. 2
refer to his opinion, although they appear to differ in their conclusions as to
what is decided therein:
M~me si aucun dommage p6cuniaire n’est prouv6, il existe quand m~me, non pas un
droit t des dominages punitils ou exemplaires, que la loi de Quibec ne reconnalt pas
mais certainement un droit A des donzuzages inoraux. La loi civile ne punit jamais
‘auteur d’un d~lit ou d’un quasi-d~lit; elle accorde une compensation A la victime
pour le tort qui lui a 6t6 caus&. La punition est exclusivement du ressort des tribu-
naux correctionnels. 4 7
Abbott J. agreed that the civil law does not provide for punitive damages.
Locke J. phrased his reference with a slightly different emphasis, implying that
Taschereau J.’s decision might be consistent with punitive damages in Quebec
under other circumstances, though not in the case at bar:
I have had the advantage of reading the reasons for judgement to be delivered by
my brother Taschereau, in which he has discussed the circumstances in which moral
damages, as distinguished from punitive damages, have been allowed in the courts
of Quebec, and indicated that, in his opinion, those awarded in the present inaitcr
should fall within the former category.4 8
Kellock J. took exception to the reasoning in the decisions of the Court of
Appeal to which Taschereau J. referred with approval,49 although not neces-
sarily to the ultimate disposition of those cases:
In so far as the recent decisions in the Provincial Courts are founded upon the view
that the civil Courts of the Province have no jurisdiction to order recovery of any-
thing in the nature of a penalty, it being for the Criminal Courts to impose punish-
insofar as [the
ments, they are not, in my opinion to be accepted. [However,]
reasoning] is based on the construction of art. 1053, I respectfully agree. The language
of the article is “damage caused”.
The learned Judge argued that public law statutes of the Province, which
make specific provision for penalty, are to be interpreted in the light of English
authorities and precedents, and therefore would authorize an award “of com-
mon law damages”. As the learned Judge remarked, the question is clearly
obiter, but the argument is instructive. Although Kellock J. concluded that
the appellant could not recover punitive damages, the courts have jurisdiction
to award punitive damages. This reasoning, however, may be met with the
argument that a provincial public-law statute may allow English precedents to
determine if fault existed, but once fault is found, the ordinary law of civil
responsibility applies, and consequently only civil law damages can be awarded.
Definitive pronouncement upon this point will have to await another case in
which the Court is squarely confronted with the issue.
It is evident that the Judges with a Common Law background are more
sympathetic to the notion of punitive damage in civil courts. Should their
views eventually prevail in Quebec, it would not be an innovation, but rather
a return to principles of Quebec law from which the Courts deviated some
the following cases:
French v. Htu (1908), 17 B.R. 429; Guibord v. Dallaire (1932), 53 B.R. 123; Savignac
v. Duquette (1936), 61 B.R. 503; Duhaime v. Talbot (1938), 64 B.RL 391.
47per Taschereau J. The learned judge cites with approval
48Italics added.
49See footnote 47.
No. 2]
CASE AND COMMENT
decades ago. Kellock J. cites with approval Lachance v. Casault,50 in which
the Court of Appeal, after hearing argument, awarded penal damages. As the
Court awarded moral damages in the Chaput Case, it is still open to the
Supreme Court to avow that punitive damages are part of the Civil Law, as
expounded by Planiol, referred to above. This appears to be consistent with
the award made in Lachance v. Casault, where Ouimet J., in his reasoning,
stated that defendant “devra &re condamn6 At payer A l’appelant une somme
de $200., savoir $100. pour lui rembourser ses dispenses, et $100. comme dom-
mages exemplaires” ;51 but in the formal judgement it was merely “consi-
d~rant qu’en d~nonqant et en faisant arr~ter l’appelant comme susdit, 1’intim6
lui a caus6 des dommages que cette cour 6value A $200.52 The jurisprudence of
the Court of Appeal has since abandoned this position, but the process of
arriving at the sum of damages may often be the same. In the case at bar, the
Supreme Court awarded $2000. It is uncertain if this included the $5.15 specific
damages for the pamphlets. If it does, how did the Court arrive at the sum of
$1994.85 ?53
There is a splii in the doctrine on the question of punitive damages. Mignault
declared unequivocally:
Quant aux dommages exemplaires qui peuvent 6tre accordis en certain cas, m~me
lorsqu’aucun tort r~el n’a E6 caus6, afin d’exprimer la r6probation d’un acte malicieux
ou r~pr~hensible, et d’en punir l’auteur, et quant au montant de ces dommages, on
pourra voir les causes suivantes:
and he cites nine cases.54
Goldenberg agrees:
Where moral damage is suffered . .. the Court may award exemplary or punitive
damages, or merely nominal damages…. The award is punitive and exceeds the
actual injury caused, because malicious intent or grave negligence is presumed. 55
50(1902), 12 K.B. 179.
51Ibid., at p. 203.
52Ibid., at p. 204.
5A breakdown of specific damages is not without its practical application. The Minister
Gotthold unquestionably had a right to sue, and may have been entitled to even greater
damages than Chaput. How much the latter was awarded for damage to religious
sentiments as distinct from the other segments of the whole cause of action, would have
served as a guide to others. ,One cannot help but wonder what would have been awarded
to each of the thirty-six other Witnesses present for insult to their religious sentiments
and interference with their right to be present at a lawful assembly for purposes of
worship.
5 4 Mignault, Droit Civil Canadien, vol. 5, p. 388. Watson v. Thompson 24 L.CJ. 129;
Brossoit v. Turcotte 20 L.C.J. 241; Papineau v. Taber M.L.R. 2 Q.B. 107; Fitzgibbons
v. Woolsey 13 Q.L.R. 49; Stephens v. Chaussg M.L.R. 3 Q.B. 270, confirmed by the
Supreme Court, 11 L.N. 90; Beauregard v. Daignault 11 L.N. 403; Lamirande v.
Cartier R.J.Q. (1892), 2 C.S. 43; Pednault v. Ville de Buckingham 5 R. de J. 40;
Chalim v. Gagnon 5 R. de J. 320. Mignault’s list is not exhaustive. See Guest v. Mac-
Pherson 3 L.N. 84.
55 Goldenberg, The Law of Delicts, Montreal, 1953, at p. 115.
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The author may have meant one of two things: either formal punitive dam-
ages are allowed under civil law, which was certainly Mignault’s view, or
that heavy damages may be awarded which in fact are punitive. In either case,
the net result is that the Court can award a substantial sum as damages which
will in fact punish the party at fault.
Nadeau disagrees with this reasoning, arguing forcefully that penal dam-
ages are foreign to Quebec civil law as they would constitute an unjustified
enrichment:
La victime ne peut pr&endre A un enrichissenient parce que le d6fendeur a eu des
torts envers elle, mais uniquement i la reparation des pertes r~elles subies.56
Les tribunaux doivent appr&ier les dommages moraux actuellement causes au de-
mandeur, et accorder une indeninit6 p&uniaire pour le tort rfellement subi, exclu-
sion faite des dommages dits exemplaires ou punitifs.5 7
The author suggests, less convincingly, that:
nos tribunaux avant 1935 avaient accord6s ce qu’ils appelaient des dommages exem-
plaires ou punitifs. En rbalit6 il s’agissait de dommages moraux pr~sent~s erron6-
ment sous cette 6tiquette.58
This bit of rationalization might more correctly be inverted, for punitive
damages under the guise of moral damages have been awarded since 1935,
though not in sufficient amounts. Moreover, it is not undesirable that this
should take place. It is submitted that the interests of Justice would be well
served if an increased liberality in awards would find favour with the Courts,
particularly those of first instance. It is not significant, from a practical point
of view, whether this takes place under the title of punitive damages, or by
awarding an increased quantum of moral damages, which in effect would be
punitive. In either event, the application of the principles of civil responsibility,
with significant economic consequences, would aid in preventing similar
breaches of private rights by the police. The Chaput Case may be the beginning
of a new trend in this direction.
LAURENCE CAPELOVITCH*
5ONadeau, op. cit., no. 258.
57Nadeau, op. cit., no. 259.
58Nadeau, op. cit., no. 257.
*Third Year Student.
No. 2]
CASE AND COMMENT
HENRY v. RIVARD
CIVIL LAW –
1054, PARA. 7 C.C. –
PLOYER FOR DELICT COMMITTED BY EMILOYEE –
DAMAGES –
RESPONSIBILITY OF EM-
INTERPRETATION OF THE
WORDS: “IN THE PERFORMANCE OF THE WORK FOR WHICH
THEY ARE EMPLOYED” .
A rather thorny field of inquiry in the Quebec law of civil responsibility
is the determination of the responsibility of masters and employers for the
acts of their servants and workmen. The final paragraph of Article 1054 C.C.
provides that “masters and employers are responsible for the damage caused
by their servants and workmen in the performance of the work for which they
are employed”. The majority of litigation under this provision has been con-
cerned with the interpretation of the words: “in the performance of the work
for which they are employed”. How can one determine with any degree of
certainty when an act causing damage is in the performance of the work for
which the actor is employed, thus engaging the responsibility of the master
or employer?
In the case of Henry v. Rivard,’ the Superior Court was again confronted
with the question of determining the responsibility of an employer for a delict
committed by his employee. The facts are as follows. On the 3rd of October,
1953, G6rard Henry, the plaintiff’s minor son, went for a ride in a delivery
truck driven by Gaston Rivard and belonging to the latter’s employer, Paul-
Emile Rivard. During the trip an accident occurred in which Grard Henry
received injuries. In the present action, Paul-Emile Rivard was sued under
1054, para. 7 C.C. in his capacity as employer. The evidence discloses the
following: (1) that Gaston Rivard was employed by his brother, Paul-Emile
Rivard, for the purpose of making deliveries and for other purposes incidental
to his business; (2) that the driver, Gaston Rivard, had only three deliveries
to make on the day of the accident and that he had made them long before the
that the accident occurred outside the normal route
accident occurred; (3)
which Gaston Rivard usually took in the performance of his duties; (4) that
the driver was under the influence of liquor at the time of the accident and
that the driver
that the accident was caused by his careless driving; and (5)
was given the use of the delivery truck for his own use, in partial payment
for his services.
On the basis of the facts and the interpretation given to the last paragraph
of 1054 C.C. in The decisions of Curley v. Latreille,2 Moreau v. Labelle,3 and
Alain v. Hardy,4 Mr. Justice Marquis concluded that the driver of the vehicle:
1[1955] S.C. 317.
2(1920), 60 S.C.R. 131.
3[1933] S.C.R. 201.
411951] S.C.R. 540.
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…
n’executait aucun travail dans l’intrft du commerce du d~fendeur Paul-Emile
Rivard et ses actes ne pouvaient Her ce dernier.5
From the uncontradicted evidence adduced by the defendant, it was quite
clear that the acts of the driver at the time of the accident had no connection
whatever with his employment. After dismissing the plaintiff’s action on the
evidence before the Court and on the basis of the authorities cited above,
Mr. Justice Marquis goes on to make the following statement, which must be
considered to be an obiter dictum:
irme si le d6fendeur Gaston Rivard avait W dans l’excution de ses fonctions, le
d6fendeur Paul-Emile Rivard n’6tait pas responsable des dommages causes an voya-
geur b~nivole G6rard Henry.6
This statement directly implies that a gratuitous passenger is barred from
the recovery of damages from an employer when the employee is in the
performance of the work for which he is employed. We know, however, that
this is not the law in Quebec, although it is in certain common law jurisdic-
tions (e.g. Ontario) where a gratuitous passenger’s right of recovery from
the driver or his employer is barred by statute. Since we have no such statute
barring recovery in this Province, the second and only possible meaning of
this statement (after considering it in the light of the arguments which follow
it)
is that the exercise of the functions for which a servant is employed is
incompatible with his inviting a gratuitous passenger to accompany him; in
other words, that it is impossible for a driver to be in the performance of the
work for which he is employed while he has a gratuitous passenger in his
vehicle. In the writer’s opinion, it would appear that there is no incompatibility
here in spite of the lengthy arguments relied upon by the Court in support of
its view. Since it not infrequently happens that obiter dicta are cited as author-
ities for subsequent judicial decisions, and thus become permanently imbedded
in our law, it is the writer’s purpose to examine the above statement in the
light of the reasoning and precedents which prompted it.
In arriving at this statement, .the trial judge found it necessary to discuss
the various theories offered as to the basis of the vicarious liability of masters
and employers for delicts committed by their servants and employees. After a
brief discussion of the theories advanced by Pothier, Baudry-Lacantinerie et
Barde, and Savatier, Mr. Justice Marquis ultimately found favour with the
theory expounded by a recent author, Edmond Bertrand, in his book entitled
Le Priposg Moderne, wherein the basis of the vicarious liability of the master
is said to reside in the representative function which the employee fulfills in
acting for his employer. Thus there is, according to Bertrand, a substitution
of the personality of the employee for that of the employer’s in the perform-
ance of the work for which the former is engaged, on the reasoning that “si
une personne peut se substituer i une autre pour la conclusion d’un contrat,
5[1955] S.C. 317, at p. 318.
6 ibid, at p. 319.
No. 2]
CASE AND COMMENT
pourquoi ne le pourrait-elle pas pour la rialisation d’un fait matiiel?” After
quoting liberally from Bertrand’s text, the trial judge concludes:
Ainsi, si le d~fendeur avait 6tj dans l’ex~cution de ses fonctions, il aurait engag6 la
responsabilit6 du commettant en heurtant un piton, ou en heurtant un autre v~hicule
sur ]a voie publique. C’est tout comme si le commettant avait commis lui-mme cet
acte. Mais, si le pripos6 n’est pas dans la poursuite du but i atteindre, s’il va faire
une promenade pour ses fins personnelles, ou encore s’il invite un voyageur binkole
a l’accompagner, il ne reprisente pas alors le commettant et ne pett engager sa res-
ponsabiliti.8
The writer finds it difficult to agree with this line of reasoning and with the
conclusion reached to the effect that an employee ceases to represent his
employer, thus disengaging the latter’s responsibility, whenever, or as soon as,
the employee or servant invites a gratuitous passenger to accompany him.
It is admitted that drivers are not hired to pick up gratuitous passengers.
Does this admission, then, lead us to conclude that a driver ceases to repre-
sent his employer in all cases where the former picks up a gratuitous pas-
senger? If we were, for a moment, to agree with Mr. Bertrand’s theory as to
the basis of the vicarious responsibility of employers, would we not be justified
in concluding mutatis mutandis that since a driver isn’t hired to drink while
driving, he would cease to represent his master as soon as he begins to drink
while driving, thus disengaging his employer’s responsibility? A fallacy in
this method of argument now becomes obvious. This fallacy, it is submitted,
is due to an omission of a necessary distinction between: (a) the act of picking
up a gratuitous passenger, wherein, if we accept Bertrand’s theory, the driver
ceases to represent the master in so far as that act is concerned; and (b) the
delictual act which causes injury to the passenger at the moment of the ac-
cident wherein the servant may have returned to the performance of the
work for which he is engaged. Thus, if a driver, contrary to his master’s in-
structions, stops on the highway to pick up a passenger, he may at that
moment, if we accept Bertrand’s theory, cease to represent his master. But
as soon as the passenger takes his seat and the driver resumes his journey
along his route of business, has not the driver returned to the performance
of the functions for which he is engaged? The truth of the matter is that it is
quite possible for the servant to be engaged at one and the same time on his
own business and on that of his master’s. For some obscure reason, our Courts
have been reluctant to admit this possibility.
As to disobedience by a driver of orders given by his employer to refrain
from picking up passengers, it is an established rule of law that an express
prohibition of any act by the master will not relieve the latter where the
transgression of a prohibition only deals with conduct within the sphere of
employment.9 It is submitted that the only time where the act of giving a ride
7At p. 250 of Bertrand’s text, quoted at p. 321 of the decision.
8[1955] S.C. 317, at p. 322. The italics are the writer’s.
9Apart from the cases discussed in this case comment, there are no reported Quebec
decisions as to the precise effect of disobedience by a driver of an order given by the
McGILL LAW JOURNAL
[Vol. 2
to an unauthorized person is not merely a wrongful mode of performing an act
of the class which the driver is employed to perform, but the performance of
an act of a class of which the driver is not authorized to perform at all is where
notice of the prohibition to unauthorized persons to travel on their vehicle is
affixed to the driver’s cab where it is clearly visible to the world at large.10
The decisions of Fink v. Herer” and Duquette v. Pinard12 were heavily
relied upon by the trial judge in support of his dictum. In Fink v. Herer, after
a review of the French jurisprudence and doctrine on the subject, Mr. Justice
Mackinnon concluded that the French jurisprudence appears fairly settled
that the taking of a passenger does not come within the scope of the servant’s
authority and is not a mode of exercising his master’s employment. 18 On this
basis, the trial judge in that case held that the owner of a vehicle is not re-
sponsible for injuries suffered by a passenger who had been invited by a
servant, driver of the vehicle, without the knowledge of the owner. It is
respectfully submitted that the view taken of the French jurisprudence is an
erroneous one. ;Neither the French jurisprudence 14 nor the French doctrine 5
master prohibiting the latter from picking up passengers. But, as to the effect of diso-
bedience generally: P rain v. Bronfnan (1931), 69 S.C. 187; Cloutier v. Savard (1923),
36 K.B. 73; Hudson’s Bay Co. v. Vaillancourt [1923] S.C.R. 41;.Curley v. Latreille
(1920), 60 S.C.R. 151. These cases, and many others not quoted here, illustrate the
difficulty of determining when the transgression of a prohibition or the disobedience of
the master’s instructions disengages the master’s liability. In this connection, a distinction
was laid down by Lord Dunedin in Plumb v. Cobden Flour Mills [1914] A.C. 62, at
p. 67, which has been frequently cited by our Courts in order to determine when the
transgression of a prohibition takes the employee outside the scope of his employment,
thus disengaging the responsibility of the master. Said Lord Dunedin: “There are pro-
hibitions which limit the sphere of employment, and prohibitions which deal only with
conduct within the sphere of employment. A transgression of a prohibition of the latter
class leaves the sphere of employment where it was, and consequently will not prevent
recovery and compensation. A transgression of the former class carries with it the result
that the man has gone outside the sphere.” Cf. Moreau v. Labelle [1933] S.C.R. 201, at
p. 211, where this distinction was quoted and followed by the Supreme Court of Canada.
‘ 0 Compare with Duquette v. Pinard [1953] K.B. 705, at p. 708, last paragraph. Refer to
A. Nadeau’s case comment (1954), 32 Can. Bar Rev. 774, at p. 777.
n(1934), 72 S.C. 509.
12[1953] K.B. 705.
13(1934), 72 S.C. 509, at pp. 513 to 515.
1411 juin 1928, Gaz. Pal., 1928.2.307; 8 avril 1933, Gaz. Pal., 1933.2.156; 21 juill. 1933,
Gaz. Pal., 1933. Note especially the two following cases which are quoted by Mr. Justice
Mackinnon: Sevn v. Honore-Mathon, Ga. Pal., 1930.2.639, and Broggini v. Frigirio,
Gaz. Pal., 1926.1.355. See also 22 nov. 1932, Gaz. Pal., 1933.1.236; 3 avril 1933, S.,
1933.1.190. For a list of the French jurisprudence cf. H. & L. Mazeaud, Traitd Thlorique
et Pratique de la Responsabilitg Civile, Dilictuelle et Contractuelle, 2 ed. 1934, p. 771,
in the 3rd and 4th
no. 914, footnotes (1) to (7). See also No. 914, footnotes (1) to (7)
editions of this text for additional jurisprudence.
15 There is little divergence between the French jurisprudence and doctrine on this
matter. Cf. R. Savatier, Traitj de la Responsabiliti Civile en drolt francais, 2 ed., 1951,
No. 2]
CASE AND COMMENT
holds that the taking of a passenger does not come within the scope of the
servant’s authority and is not a mode of exercising his master’s employment.
Even the French cases’0 cited in this decision do not lead to this conclusion.
Rather, the French jurisprudence holds that a passenger is precluded from
suing the master vicariously only when the passenger knew or ought to have
known that the servant was acting “en dehors de ses fonctions”, and that
where a passenger accepts a place offered by the driver, in the belief that
the latter was acting with the approval or at least the tacit consent of the
master, the latter will be liable. The tendency of the French jurisprudence is
summed up as follows:
Lorsque la victime du pr~pos6 a su que ce dernier agissait en dehors de ses fonc-
tions, elle ne peut pas demander r6paration au commettant; ce dernier, d~clare la
Cour de cassation, cesse d’tre responsable lorsque le pr~posE a RE envisag6 par la
victime comme ayant agi non pour le compte de son commettant, mais pour son
compte personnel. 1 7 II en est ainsi lorsque, par exemple, quelqu’un demande au
chauffeur d’une automobile de le conduire dans la voiture du patron, ou accepte d’y
monter, sans aucune autorisation du propri~taire. Celui, au contraire, qui accepte
une place offerte par le chauffeter, croyant que ce dernier agit sur les ordres ou du
moins avec le consenternent de son patron, peut invoquer, au cas de dontinage l’article
1384(3) [equivalent to 1054, para. 7 C.C.]. On voit g6nralement ici une application
de la th~orie de l’apparence: on exige qu’il y ait eu apparence de l’exercice des
fonctions.’ 8
Also:
Toutefois, la responsabilit6 du commettant cesse lorsque le tiers victime du domma-
ge caus6 par le pr~pos6 savait ou devait savoir que celui-ci agissait en son nom per-
sonnel et non comme repr~sentant du commettant, c’est-i-dire n’6tait plus dans
l’exercice de ses fonctions, au ca$, par example, d’un accident caus6 A une personne
qui avait pris place bnvolement et a so demande sur un camion conduit par un
employ6.’ 9
In the light of this revelation, one has no alternative but to conclude that
the case of Fink v. Herer was decided on a misinterpretation of the source
on which it relies.
In addition to the French jurisprudence and doctrine, the trial judge in
the Fink case also relied on a number of American and Common Law deci-
sions. One must remember the danger of citing American and Common Law
jurisprudence in this field of law, especially since such concepts as “trespasser”
Nos. 318 to 325; H. & L. Mazeaud, op. cit., 2nd, 3rd & 4th ed., nos. 903 ff., especially at no.
914.
‘6Broggini v. Frigirio, Gas. Pal., 1926.1.355; Marteau v. Demangeon, Cass., Gas. Pal.,
1928.2.307; Sevin v. Honore-Mathon, Gas. Pal, 1930.2.639. See also footnote 14.
17Cf. the 3rd and 4th editions of H. & L. Mazeaud, op. cit., no. 914, footnote (2 bis)
where the authors add: “Puisque, dans la th~se jurisprudentielle, il y a li une condition
d’application de l’article 1384 [equivalent to 1954 C.C.], il appartient i celui qui se pri-
vaut de ce texte d’en faire la preuve: e’est donc ]a victime qui doit prouver qu’elle croyait
le pr~posE dans l’exercice de ces fonctions.” To this effect: Paris, 30 avril 1936, Gas. Pal.,
1936.2.468.
18H. & L. Mazeaud, op. cit., 2 ed., No. 914. The same conclusions are also reached in
the two subsequent editions of this treatise. The italics are the writer’s.
‘9 Colin et Capitant (de la Morandiire), Cours aRimentaire de droit civil fran~ais, 1948,
10 ed., no. 353. The italics are the writer’s.
McGILL LAW JOURNAL
[Vol. 2
and “mere licensee” are used in such jurisdictions in order to determine the
master’s liability towards gratuitous passengers. Such concepts have no
counterpart in, and are not part of, our civil law. Hence, American and Com-
mon Law decisions in this particular field can be relied upon only as rationes
scriptae.
The second decision relied upon by Mr. Justice Marquis in support of
his dictum is the case of Duquette v. Pinard, decided by the Court of King’s
Bench in 1954. In this decision, the majority of the judges of the Court of
Appeal unquestioningly accepted the reasoning and conclusions of Mr. Justice
Mackinnon in Fink v. He-er and, on this basis, reversed the Superior Court,
which had held the employer jointly and severally liable with his employee
for injuries suffered by a gratuitous passenger who had been present in the
vehicle while the driver was making his deliveries. In a case comment which
appeared in the Canadian Bar Review shortly after the Court of Appeal
rendered its decision, a well-known author20 illustrated his disapproval of
this reversal by convincing arguments but on grounds other than those
mentioned by the present writer.
CONCLUSION
In this field of vicarious responsibility, we are constantly aware that we
are dealing with a branch of law in which there is an evident conflict between
different interests. The right of the community to have its business and in-
dustry carried out in the most efficient manner, although this may create
some risk, is in conflict with the right of ordinary individuals to security of
life and limb. It is the primary aim of the courts, in making an adjustment
between these two interests, to see that justice is done, in so far as may be
possible, in every case that comes before them. For this reason, then, it is the
writer’s opinion that the adjustment between the two interests is a matter of
degree rather than of principle.
Through a series of decisions beginning with the Fink case and culmin-
ating in Mr. Justice Marquis’ dictum in the case under discussion, we have
seen the establishment of a principle the effect of which is to disengage the
master’s liability towards a third person who suffers damage as a result of a
delict committed by a servant while the latter is in the performance of the
work for which he is employed. The possibility that a driver may be engaged
on his own business, as well as his master’s, at one and the same time has
already been discussed. It is to be observed, further, that if a driver is really
engaged on his master’s business, the fact that he is at the same time engaged
on his own is no defence to the master even though: (1) it was the competing
claims of the servant’s business which caused him to perform his master’s
negligently; or (2) the delictual act causing the damage was committed at a
moment when the servant was engaged on his own as well as on his master’s
2 0A. Nadeau, (1954), 32 Can. Bar. Rev. 774.
No. 2]
CASE AND COMMENT
business. In either of these two cases, the master still retains his recourses
against his employee.
For these reasons, therefore, to hold that “m~me si le d6fendeur Gaston
Rivard avait 6t6 dans l’excution de ses fonctions, le d~fendeur Paul-Emile
Rivard n’6tait pas responsable des dommages caus6s au voyageur b6n~vole
G~rard Henry” is to urge the application of a principle which has been
erroneously construed. It appears that in this branch of law there is no single
principle which will determine with certainty when an act causing damage is
in the performance of the work for which the actor is employed. Only a proper
appreciation of the facts in each particular case will afford a true guide. Hence,
such a principle as is urged by Mr. Justice Marquis’ dictum is particularly
misleading both because it is based on a misconception and because it is in
direct contradiction to a normal state of affairs, namely, that it is possible for
a servant to be on his own business as well as on his master’s at one and the
same time. However strong the attraction towards precedent may be in the
judicial process, it is hoped, in the final analysis, that our Court of Appeal will,
at the earliest opportunity, rectify the misinterpretation made of the French
jurisprudence in the Fink and Duquette decisions, and that our Court of
original jurisdiction will see fit in the future to discourage both the application
of this dictum, and the extension of the holdings of precedents in this field of
vicarious responsibility beyond the particular facts to which they apply.
MICHAEL AwADA*
*Third Year Student.
