Queen v. Sylvain:
The Meaning of Damage
David Cayne *
Article 1053 of the civil code of Quebec provides that,
Every person capable of discerning right from wrong is responsible for
the damage caused by his fault to another, whether by positive act, impru-
dence, neglect or want of skill.
Inherent in this article are the three fundamental elements which
render a person civilly responsible for his behaviour: fault, damage,
and a causal relationship between the two.
It will be the purpose of this note to critically examine the second
of these three elements, in the light of the recent jurisprudence.
At the outset, it should be mentioned that we are concerned, not
with the evaluation of damages, or pecuniary loss, but rather with
that kind of loss, however great it be, which the courts presently
recognize as coming within the purview of article 1053 C.C.
The recent decision of the Supreme Court of Canada in the
Queen v. Sylvain 1 relates directly to the problems under considera-
tion. In that case, a car belonging to Doctor J. L. Sylvain and driven
by his son Guy collided with a car driven by Corporal L. P. E. Le-
blanc. One of the consequences of this accident was that Leblanc
and his four passengers, all members of the Canadian armed forces,
were injured.
More than two years ofter this accident, the appellant sued the
respondent in the Exchequer Court,2 alleging that the accident was
the result of respondent’s negligence. A claim for damages was made
as follows: $3,145.05 for disbursements which the Crown was obli-
gated to make to these soldiers for medical care, and $1,516.23
representing their pay for the period during which they were in-
disposed. Mr. Justice Dumoulin dismissed the action in the Ex-
chequer Court, from which decision an appeal was made to the
Supreme Court.
It is important to note that the Crown did not assert its rights
by invoking either conventional or legal subrogation. Nor did it
Of the Junior Board of Editors.
1 [1965J S.C.R. 164.
2 [1965] Ex. C.R. 261.
346
McGILL LAW JOURNAL
[Vol. 13
base its action on any special subrogatory legislation, such as the
Government Employees Compensation Act.3 Finally, the appellant
did not rely on the equitable principle, which is the basis of the
action de in rem verso, that no person should enrich himself to the
detriment of another. The appellant, rather, based its action for
damages exclusively on article 1053, claiming that the pecuniary
loss it suffered arose directly from the fault of the respondent.
Mr. Justice Fauteux summed up the plaintiff’s position,
… comme
tant une action directe dirig~e par le maitre contre le responsable
d’un quasi-d~lit causant des lesions ou blessures corporelles A son serviteur,
pour 6tre rembours6 des sommes qu’il a d6bours~es A cette occasion au
b~n6fice du serviteur. 4
In his words, the real issue at bar was the validity of such a
claim,
lorsque ses d6bours6s sont faits en satisfaction d’une obligation contrac-
…
tuelle ou statutaire, dont le maitre devient alors le d~biteur et l’employ6 le
criancier.5
In rejecting the action the learned judge decided that,
… les sommes ainsi vers6es par l’employeur ne repr~sentent pas de dom-
mage an sens de ce mot suivant
Fauteux, J. based his reasoning on an article by L. de la Moran-
‘article 1053 du Code civil.. 6
di~re,7 the most relevant parts of which are reproduced below.
En effet, celui qui acquitte une obligation en vertu d’un contrat qu’il a
conclu, ou d’un statut rbglementaire qui organise son fonctionnement, no
subit pas de dommages, parce qu’il ne subit pas de lesion, ni dans ses
droits (ce qui est 6vident), ni dans ses intfrbts.
En d’autres termes, il ne s’agit pas l& d’un dommage an sens de
‘article
1382 C.N. parce que le paiement trouve sa cause dans l’ensemble des stipula-
tions du contrat ou du statut…
Quand un individu s’engage par contrat on par statut A payer une cer-
taine somme, il ne le fait pas contrairement A ses int~rbts, mais, bien au
contraire, en vue de donner satisfaction A ceux-ci. Comment peut-on sou-
tenir qu’en payant ce & quoi il est ainsi tenu, il subit un dommage dont il
peut demander A d’autres reparation ?7a
It is respectfully submitted that this reasoning, cited with ap-
proval by Fauteux, J. and constituting the basis of his decision, is
subject to criticism on a number of grounds. Firstly, it fails to
recognize important differences between those obligations having
their source in a contract, and those which emanate from the law
3 R.S.C. 1952, c. 134.
4 [1965J S.C.R. at p. 170.
5 Ibid., at p. 170.
6 Ibid., at p. 172.
7 De l’action des administrations contre le tiers responsable do Paccident survenu
survenu & un membre de leur personnel, D.C. 1958.179.
7a Ibid., at p. 185.
No. 21
THE MEANING OF DAMAGE
itself. Thus one may validly argue that the fulfillment of a con-
tractual obligation made exigible by the negligence of a third party
does not constitute damages in law because the debtor has volun-
tarily run the risk, and has, in return, received consideration for
this risk. The same reasoning does not, however, apply to an obli-
gation which the law imposes upon an individual, and for which he
receives nothing in return. When a person involuntarily assumes an
obligation, should the law not recognize that his rights have been
prejudicially affected when it is rendered exigible by the negligence
of a third party? Has he not suffered a pecuniary loss sanctionable
in law?
The writer emphasizes that, in his opinion the legal damages lie,
not in the creation of the obligation (which has its true source in
a statute), but rather in the fact that an obligation must now be
fulfilled which might otherwise have never been exigible. It is
submitted that to hold otherwise is to give a most restrictive and
artificial meaning to the concept of damages under the civil law.
This decision may also be criticized on policy grounds. While it
is true that the civil law is primarily concerned with compensating
the victim rather than punishing the wrongdoer, there is no reason
why a punitive element cannot be retained, providing the rights of
the victim are not thereby impinged upon. In the case under con-
sideration, however, the Supreme Court chose to allow the negligent
conduct of Mr. Sylvain to go unsanctioned, even though the victim
had already been compensated for the injuries he suffered.
The Legal Implications
The Queen V. Sylvain sets forth the principle that whenever a
statutory or contractual obligation is rendered exigible by the negli-
gence of a third person, the pecuniary loss thereby suffered does
not constitute damages in law. Keeping in mind the fact that the
civil code is a statute, the implications of this principle become ob-
vious, for it follows that wherever the code places a legal responsi-
bility upon someone, that person has no right of action under article
1053 C.C. to recover his losses, even when his obligation is made
exigible by the negligence of a third person. Hence when an em-
ployer is condemned under article 1054 C.C. to pay for the damage
caused by his servant’s negligence, he has no recourse against the
latter on the grounds that he has suffered damages. Although this
situation is easily distinguishable from the facts of the Sylvain
case, the principle established in that decision is so broad that our
example would fall squarely within it.
MeGILL LAW JOURNAL
[Vol. 13
Applying the same reasoning to the vicarious liability imposed
upon the mandator, it follows that he too, has no recourse against
his negligent mandatary under similar circumstances. Nor, in a
partnership, would one partner have a recourse against another
for the loss which he suffers under articles 1856 C.C.
The same reasoning applies to article 1055, for here too a legal
responsibility is imposed upon certain classes of persons. A case
relevant in this context is that of Marcotte v. Desourdy et Corpora-
tion de la Paroisse de St-Siboire,8 where the principal defendant was
condemned to pay for the damages caused by his sheep, in accord-
ance with article 1055. He impleaded the defendant municipality
on the grounds that it was due to its negligence that the animals
had gained access to the public road where the damage was caused.
The court held that,
t6 condamn6 A payer A titre
Consid~rant que le d6fendant principal ayant
de dommages, une somme de $213.65, son action en garantie doit 6tre
accueillie concurremment pour un 6gal montant, et la d~fenderesse en
garantie doit A son tour indemniser son garant, suivant l’application des
principes qui r6gissent la garantie simple.9
Thus in allowing the action in warranty, the court was recog-
nizing that the loss suffered by the principle defendant constituted
damage in law, even though he was condemned under the legal rule
of article 1055. The writer submits that, unless the principle estab-
lished in the Queen v. Sylvain is rigidly confined to the fact pattern
from which it arose, a decision of this nature could no longer be
rendered.
It should also be noted that, as a result of the Sylvain decision
the word “another” in article 1053 C.C. can now only refer to the
immediate victim of a delict or quasi-delict, and hence no longer
include a third party who compensates the victim: if the payment
is made ex gratia, then the requisite causality is lacking between
the negligent act and the damage; and if it is made in satisfaction
of a contractual or statutory obligation, then it does not constitute
damages in law. In this respect, then, the Queen v. Sylvain has in
fact overruled the celebrated decision of the Supreme Court in the
case of Regent Taxi and Transport Co. v. Maristes Fr~res,10 where
the word “another” was not given so restricted a meaning.”1
8 (1937) 75 C.S. 439.
9 Ibid., at p. 441-442.
10 [1929] S.C.R. 650.
1 Anglin, J., at p. 657; Lamont, J., at p. 707.
