La Compagnie d’Assurance Canadienne
Nationale v. Marek Siemiatycki 1
Howard B. Shaffer *
Article 1629 of the Quebec Civil Code provides that:
“When loss by fire occurs in the premises leased, there is a legal pre-
sumption in favor of the lessor, that it was caused by the fault of the
lessee or of the persons for whom he is responsible; and unless he proves
the contrary, he is answerable to the lessor for such loss.”
What proof must the lessee make in order to rebut this legal
presumption? Is it sufficient for him to establish that he acted in
a prudent manner, taking all reasonable precautions to avert a
fire, or must he go further and prove the cause of the fire so as
to show that he was in no way implicated?
Facts and Decision
Plaintiff insurance company insured a building against fire in
the name of the proprietor, who subsequently rented it to the
defendant, Siemiatycki, by written lease. On April 2, 1960, during
the term of the lease, a fire broke out in the leased premises at
about 2:30 a.m., causing considerable damage to the property. Plain-
tiff company paid the proprietor $4,462.28 in virtue of the insur-
ance contract, and obtained a transfer and subrogation in his rights
against the defendant to the extent of the amount paid.
At trial, plaintiff invoked Art. 1629 C.C., pleading fault, negli-
gence and imprudence on the part of the defendant or his employees
or customers. Defendant disclaimed responsibility, replying that he
and his employees had taken all reasonable precautions, and that
an inquiry held on April 21, 1960 by the fire commissioner had
established that the cause of the fire was unknown.
Mr. Justice G. B. Puddicombe, who heard the case in Superior
Court, phrased the legal problem as follows:
“The sole question for the Court is whether or not the presumption
raised by Article 1629 of the Civil Code has been effectively rebutted by
the defendant.”
* Of the Junior Board of Editors, McGill Law Journal, second year law student.
‘An unreported judgment of the Superior Court of the District of Montreal,
no. 522,317, 29 June 1964, Mr. Justice G. B. Puddicombe.
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CASE AND COMMENT
The learned judge held that the defendant had not rebutted the
presumption. He conceded that the cause of the fire was unknown,
and that the proof showed that the defendant had been “reasonably
prudent.., probably to the extent of un bon pare de famille”.
Despite these findings, however, Mr. Justice Puddicombe held at
page three of his judgement that:
“The defendant contented himself with proving that he had acted as
a reasonable man. I am of the opinion that he had also to prove that the
fire could not have occurred by reason of his fault… He must.., show
that he had done nothing which could have caused the fire … This latter,
in my view, he has totally failed to do. He has made no attempt to show
what the cause of the fire was other than to say that it was unknown,
which is insufficient.”
The plaintiff company was awarded judgement for the sum of
$4,462.28 against the defendant lessee.
Jurisprudence and Doctrine
The decision of Puddicombe J. conflicts with a long line of
Quebec jurisprudence on this question, headed by a Supreme Court
judgment in Murphy v. Labb -.2 This jurisprudence is to the effect
that:
“The defendant need not prove the exact or probable origin of the fire
or that it was due to unavoidable accident or irresistible force; it is suffi-
cient for him to prove that he has used the object leased as a prudent
administrator (en bon pare de famille), and that the fire occurred without
any fault that could be attributed to him or to persons for whose acts he
should be held responsible.”3
Quebec law commentators Mignault 4 and Snow 5 express agree-
ment with the above viewpoint.
The opposing view taken by Mr. Justice Puddicombe finds prece-
dent in two early decisions, 6 neither of which he cited. In another
2 (1897) 27 S.C.R. 126. See also: Evans v. Skelton 16 S.C.R. 637, Jamieson v.
Steele Cas. Dig., 2 ed., 465 at 467, Parent v. Potvin (1895) 1 R.J. 387, Klock v.
Lindsay (1898) 28 S.C.R. 453, Ford -v. Phillips (1902) 22 S.C. 296, Hunt v.
Beetham (1904) 10 R.J. 536, Henry v. Ward (1918) 28 B.R. 159, Fox Film Corp.
Ltd. v. Moreau (1923) 61 S.C. 536, Clermont v. Charlebois (1924) 37 B.R. 151,
Valois v. Caromel (1926) 64 S.C. 319, Potvin v. De Bechard [1946] R.L. 1,
Fleury v. Lggarg [1947] S.C. 259, Mailhot v. Loranger [1949] B.R. 814 at 820,
Yorkshire Insurance Company Ltd. v. Gabriel [1964] S.C. 347 at 349.
3 Fox Film Corp. Ltd. v. Moreau, supra, p. 536 (Rinfret, J.).
4 Droit Civil Canadien, vol. 7, pp. 306-307.
5 Law of Landlord and Tenant, 3rd. ed., 1934, pp. 305-306.
6 Siminaire de Quebec v. Poitras (1875) 1 Q.L.R. 185, and B6langer v. Mc-
Carthy, 19 L.C.J. 181.
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case,7 Mr. Justice Taschereau cited with approval the judgment of
the Seminaire de Qu6bec case that the lessee, in order to rebut the
presumption of Art. 1629 C.C., must go beyond proving he acted
prudently to show how the fire originated and that it was without
fault on his part. Faribault 5 criticizes the Murphy v. Labb6 and
Fox Film Corp. Ltd. v. Moreau decisions 9 and seems to share the
opinion of Puddicombe J. The preponderance of opinion in Quebec
remains, however, that the lessee need not prove the cause of the
fire but need establish that he acted “en bon pore de famille” with
no fault in any way attributable to him, in order to overcome the
legal presumption of Art. 1629 C.C.
Critique of Judgment
The decision of Puddicombe J. departs from an apparently well-
established body of jurisprudence. Despite the fact that, in theory,
Quebec does not accept the Common Law doctrine of stare decisis,
the present case does not seem urgent enough to warrant a defini-
tive rejection of accepted doctrine. Moreover, the decision may be
objected to on grounds that it contradicts Art. 1629 C.C. and leads
to an impossible situation.
Article 1629 C.C. provides that the presumption that a fire in
leased premises “was caused by the fault of the lessee” may be
rebutted if the lessee “proves the contrary.” 10 Strictly speaking, the
contrary or converse of the proposition that the fire was caused
by the fault of the lessee is that the fire was not caused by the
fault of the lessee. Hence to establish the converse proposition,
the lessee need only prove that he was not at fault. If he can suc-
cessfully dissociate himself from fault he will have rebutted the
presumption without having to make any proof of the cause of
the fire. It now may be objected that the lessee cannot really
exonerate himself from causing a fire unless he proves the cause
I Evans v. Skelton, supra, at p. 659.
8 Trait6 de Droit Civil du Qudbec, vol. 12, pp. 177-179.
9 Op. cit., supra.
10 There is an apparent discrepancy in the wording of the English and French
versions of Art. 1629 C.C. In the English version, the pronoun “it” in the clause
“that it was caused by the fault of the lessee”, refers not to the fire, but to
“loss by fire”. Thus the English version alludes to the cause, not of the fire
itself, but of something quite different in ordinary usage, viz. “loss by fire”. In
t6 caus” refers clearly to “‘incendie” and not to
the French version, “qu’il a
“perte par incendie”. This writer has, for present purposes, resolved the dis-
crepancy in favor of the French version (see Art. 2615 C.C.), but submits that
an amendment seems in order to avoid possible misinterpretations.
No. 1]
CASE AND COMMENT
of it and shows that he was in no way at fault as regards that
cause. This objection, however, leads to an impossibility where, as
in this case, the cause of the fire is unknown.
The legal presumption raised by Art. 1629 C.C. against the
lessee is, according to the very words of the article, rebuttable or
juris tantum.11 According to Mr. Justice Puddicombe’s decision that
the lessee, to exculpate himself, must prove the cause of the fire,
it follows that every time that the cause of the fire is unknown,
the lessee will be unable to rebut the presumption. Thus in many
cases a juris tantum or rebuttable legal presumption will have been
converted in effect into a presumption which is irrebuttable or junis
et de jure.12 It is submitted that this result opposes not only the
spirit of our jurisprudence, but also the very terms and import of
Art. 1629 C.C. In the absence of any provision to that effect, the
legislature, it is submitted, could not have intended to place upon
the lessee’s shoulders the impossible burden of proving the cause
of a fire, which has been proved to be unknown. 3 The lessee’s bur-
den must therefore be that he prove he was in no way at fault,
whether or not the cause of the fire be known and proved.
General Considerations and Conclusions
In general, the presumption in favor of the lessor as exempli-
fied by 1629 C.C., is losing the importance it once had. It seems
to have originated in times when fire insurance was unknown in
order to protect the lessor against loss by fire of his leased premises.
The Roman law used it and the French adopted it;14 but the
English, who early developed the contract of insurance, never ac-
cepted this legal presumption. 15 Our codifiers in Quebec adopted the
presumption from French law, but our Art. 1629 C.C. is much wider
in scope than its counterpart in Art. 1733 C.N.’ s The opinion is
current that the modern fire insurance contract affords the lessor
the protection formerly secured only by the legal presumption in
11 Faribault, op cit., p. 178.
12 Art. 1239 C.C. distinguishes formally between rebuttable and irrebuttable
legal presumptions.
13 In this case a fire commissioner’s inquiry concluded that the cause of the
fire was unknown.
14 Art. 1733 C.N.
15 Girouard, J. in Murphy v. Labb, supra, at p. 137 gives a learned discussion
of the history of the presumption in Art. 1629 C.C.
16 Traders General Insurance Co. v. Jobin [1956] B.R. 788, at p. 792.
(Gagnk, J.).
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his favor. 17 Furthermore, this presumption is not of public order;
it may be, and often is, set aside by an express clause in the lease. 8
It is also evident that in many cases it is difficult or impossible
to ascertain the cause of a fire, therefore difficult to attribute
causal fault with precision. In such cases the presumption works
hardship upon the lessee. To a much greater extent than in 1866,
when Art. 1629 C.C. came into force, premises now leased, such
as commercial buildings and apartment dwellings, are large and
complex. With the widespread use of electricity and electrical equip-
ment there arises the probability of fires caused by defective wiring,
for which d tenant may not be at all responsible.
Finally, it is submitted that fault involves the breach of a pre-
existing obligation. Art. 1626 C.C. obliges the lessee:
“1. To use the thing leased as a prudent administrator, for the purposes
only for which it is designed and according to the terms and intention of
the lease;…”
The writer submits that Art. 1626 C.C. sets up the standard of
behavior by proof of which the lessee should be held to have re-
butted the presumption of his fault in Art. 1629 C.C.19
In the light of these considerations, the decision of Puddicombe J.
in this case seems unwarranted, and it is submitted with respect
that the law is that which is held by the majority of our juris-
prudence, namely that in order to overcome the presumption that
loss by fire in leased premises was caused by his fault, the lessee
need not prove the cause of the fire; it is sufficient for him to
prove he acted “en bon pare de famille” and that the fire occurred
with no fault attributable to him or to persons for whose acts he
is responsible.
1′ Snow, op. cit., p. 306.
15 The express waiver of the legal presumption in favor of the lessor may
also be made effective as regards the latter’s insurance company which becomes
subrogated in his rights. The lessor may subscribe to a policy of fire insurance
designed to cover the risks of such waiver. Although the presumption be waived,
a trader occupying commercial premises as lessee may be well advised to insure
himself against claims of the proprietor or adjacent lessees as a result of fire
caused by his fault. (See Assurances, Jan. 1964, no. 4, pp. 221-222).
19 Savatier, Cours de droit civil, 1944, vol. 2, no. 352, p. 172, calls the lessee’s
obligation an “obligation de moyens” which allows the “dibiteur d’6chapper ainsi
a toute responsabiliti par la preuve de sa diligence”.
