No. 11
CASE AND COMMENT
LAPIERRE v. CITY OF MONTREAL
Damages – Action r6cursoire – Claim against the City of Montreal
as joint tort-feasor for share of amount paid in settlement of action
in damages – Pedestrian injured following collision between two
vehicles – Stop sign not in place at intersection – Pedestrian’s
action against owners of vehicles instituted more than six months
after accident – Whether City’s liability extinguished by prescrip-
tion – Whether joint and several liability – Charter of the City of
Montreal, art. 45; Civil Code, arts. 1106, 1117, 1118, 1156, 2261.
by Mary Herzberg*
This appeal to the Supreme Court’ arose out of an action recursoire taken by
Lapierre against the City of Montreal to recover part of the amount paid by
him in settlement of an action for damages arising from a traffic accident.
The accident in question occurred on 25th January, 1952, at the intersection
of Ontario and Aylmer streets in Montreal. A taxicab owned by Lapierre came
into collision with another taxicab, owned and operated by one Beaudry.
Ontario was at this point a “through” street, normally protected by stop signs
on the intersecting street, but at the time of the accident the stop sign at this
particular intersection was not in place. Because of this, Beaudry failed to
stop before entering the intersection and collided with Lapierre’s vehicle.
As a result of this collision, Vocelle, a pedestrian, was seriously injured.
Consequently, two actions were instituted. The first was taken by Beaudry
against both Lapierre and the City and the second was taken by Vocelle against
Lapierre and Beaudry. The first action came to trial and was maintained;
Beaudry was found to be 40% responsible and Lapierre and the City of Montreal
were held to be jointly and severally responsible for 60% of the damages.
Following this judgment, Lapierre and Beaudry, who had up to this point
contested Vocelle’s action, entered into negotiations for a settlement. Lapierre
called upon the City to be a party to these negotiations, but it declined to do so.
A settlement was finally concluded, under the terms of which Vocelle was paid
$13,000 plus costs of $1,000, Lapierre’s contribution being $8,000 on account of
damages and $600 on account of costs. Lapierre then instituted the present
action against the City for recovery of 75% of the amount he paid in settlement
of Vocelle’s claim.
The trial judge maintained the action to the extent of 50% of the amount
paid but this judgment was reversed by the Court of Appeal.2 The Supreme
*Tbird year law srudcnt.
1[1959] S.C.R. 434..
2(1959] Que. Q.B. 125.
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Court confirmed the latter decision. Mr. Justice Taschereau, following the
reasoning of the Court of Queen’s Bench held that the City of Montreal:
“par l’effet de la prescription 6dict~e I ‘art. 45 de ]a charte de la Cit6 de Montral … a &6
totalement lib~rie de responsabiliti vis-a-vis Vocelle i l’expiration des six mois et, en con,6-
quence, il n’y avair plus d’obligation solidaire sur laquelle pouvait reposer une action
ricursoire”‘.
This case is worth noting on two grounds. The first question it raises is
that of the interpretation of the rules of joint and several liability and their
application to the cases foreseen by art. 1106. Although it is not proposed to
reject this carefully reasoned decision, it is respectfully submitted that the net
result is “hard” law. Under the rules of joint and several liability, the .oltens
(i.e., the debtor who pays the joint and several debt) may recover from those
jointly and severally obliged with him. In the present case the failure of the
creditor, Vocelle, to take action within 6 months from the date of the accident
put an end to the action ricursoire against the City, thereby placing a heavy
burden on Lapierre. This conclusion from the rules of the Code and of the City
Charter leaves much to be desired insofar as an equitable sharing of responsibility
for damage “arising from the common offence or quasi-offence of two or more
persons” is concerned.
A second and more interesting question is posed by the obiter dictum
pronounced by Mr. Justice Taschereau, constituting a departure from forty
years of jurisprudence and the express words of art. 1106 of the Civil Code.
The learned judge added a further condition for the existence of joint and several
liability; he states that for solidarity to exist
“il faut que cc d6lit ou quasi-dlit soit ke mime, qu’il saot de mbnt nature”.4
This new approach to solidarity in the area of quasi-delicts and delicts would
exclude it from most situations in which it has been hitherto applicable, thus
limiting the scope of art. 1106 C.C. This article reads as follows:
solidaire.”
“L’obligation risultant d’un d~lit ou quasi-d~lit commis par deux personnes ou plus est
“The obligation arising from the common offence or quasi-offence of two or more persons
is joint and several”.
Applying the new criterion to the present case, where Lapierre’s fault
consisted in the unskillful and negligent driving of his taxi and the City’s
fault in failing to replace the stop sign, Mr. Justice Taschereau concludes that,
since these faults were of a different nature, there was never any solidarity
between the Flaintiff and the defendant. He adds that the Court would, if
the question were raised in a future case, be pleased to consider this as a valid
approach to the application of art. 1106 C.C.5
3[1959] S.C.R. 434, at p. 439. Taschereau J. apparently erred in his reference to the relevant
section of the City Charter of Montreal. He should have referred to see. 536a, which reads as
follows: “No action against the city for damages or for compensation shall be admissible unless the
same be instituted within six months from the date when the right of action originated.”
4Ibid.
SIbid.
No. 1]
CASE AND COMMENT
The learned Justice supports his argument by referring to the case of
Jeannotte v. Couillard’. It is significant to note that the decision in this case
was later rejected by the Supreme Court, which held that
“There may be joint and several responsibility of two different parties for the consequences
of an accident caused by independent acts of negligence committedby both at the same time
and contributing directly to the accident.'”
This is the leading case on the subject and subsequent decisions8 have reiterated
that it is only necessary for the acts of negligence to have been committed at
the same time in order for there to be joint and several responsibility among the
joint tort-feasors. No reasoning is offered by Taschereau J. to justify this
apparent departure from the words of the Code and the established jurisprudence.
Several questions immediately arise regarding the juridical implications of
this shift in interpretation. First, what will be its effect on the rules with regard
to responsibility for the faults of others under art. 1054 C.C.? Is it not also
possible that art. 1106 C.C. would become a “lame-duck” article under this
interpretation, as it would be difficult to find circumstances in traffic and other
accidents where the several parties committed the same offence or quasi-offence?
Again, the advantages which art. 1106 C.C. offers to the victim –
a single
suit against any or all of the parties responsible, interruption of prescription and
the right to sue any one of the parties for the whole of the debt – would
disappear if the co-authors of the damage had to commit the same offence or
quasi-offence. Furthermore,
lose the
advantage of being able to call the other co-debtors in warranty. This aggrava-
tion of the problems of the victim is, it is suggested, a step away from efficient
and fair judicial redress.
the party sued would presumably
In connection with the learned Judge’s suggestion, it is interesting to note
the difference between the French and English text of the Code. While the
former speaks of the “d~lit ou quasi-d~lit commis par deux personnes ou plus”,
the latter says the obligation arises from the “common offence or quasi-offence”.
The Codifiers’ Report fails to comment on this article, although it is different
from that found in the Code Napolon; instead, the Report merely cites Pothier
(Obligations, No. 264), where reference is made to an obligation arising from
“un d~lit commis par plusieurs (quatre) personnes”, each debtor being respon-
sible to the victim for the whole of the damage, but among themselves each
co-debtor being responsible for an equal share under an assumed recursor’
action. However, in another section, Pothier speaks of an “‘obligation solidaire
a P’gard de ceux qui ont concouru a un de’lit”.9
4(1894) 3 Que. Q.B. 461.
7Grand Trunk Railway and City of Montreal v. Macdonald (1919) 57 S.C.R. 268.
sNapikrvilleJunctin Railway v. Duhois, [1924] S.C.R. 375; The King v. Canada Steamship Lines, [1927]
S.C.,..68; Thiriault v. Huawith, [1948] S.C.R. 86; Nobert r. Morais, [1956] Que. Q.B. 740.
‘Pothier, Obligati ns. No. 268.
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The primary sources then are inconclusive, but do not seem to support the
view that art. 1106 C.C. need be restricted to fact situations where the declicts
are the same.
In the Quebec doctrine, only Mignault seems to offer support to this new
look for art. 1106 C.C. He speaks of “individus condamns pour un mbme crime ou
pour un meme delit”.’0 This language is, it must be noted, a reproduction of
art. 55 of the French Penal Code; this is criminal and not civil law and must
therefore be transferred into our law with caution, if at all. Faribault talks of
“les auteurs communs d’un dflit'” and also says that
“‘pour qu’il y air solidaritE il faut cependant que les domrnage r&lanis proviennnrt d’wu
mEme ddlit ou quasi-dlit auquel les d6fendcurs onr contribu& Elles n’existent pas lorsqu, les
dommages rgsulrenr d’actes distincrs er ind6pcndants de ]a part dcs divers d6fendcurs”.1t
Nevertheless,
the cases he cites as upholding his opinion”* follow the
criterion set up in the Grand Trunk case, 3 viz.. that the actions may be
different as long as they are committed at the same time and contribute directly
to the delict or quasi-delict. Nadeau says
‘les co-auteurs d’un de’lit ou quasi-
dilit .. .sont oblige’s a la reparation solidaire” 4 but then goes on to approve
the -ratio” of the Grand Trunk case.
The French authors are also of interest on this point. Planiol ” speaks of
“corresponsables d’un meme dommage” and also uses Pothier’s expression “concouru
tin mime dflit”. MM. Mazeaud, basing themselves on the principle that I
person is responsible for the whole of the damage caused by his fault, even to
the slightest degree (art. 1382 C.C., art. 1053 C.C.), not only deny the
necessity that the faults be of the same nature, but also state that the faulty
acts may be successive and need not be simultaneous in time.
**Les fautes peuvent donc Etrc ind~pendarircs;’ elles pcuvent meme
La simultani&6 n’est pas plus indispensable que Yunit6 on l’identir6. Un
atre, en effer, produit par la reunion de fautes successives dtnt chacune c,-. . l!e icie.
de tout le dommage. 6
French jurisprudence in this sense is cited and thus we not only see the
proposition of Mr. Justice Taschereau in the present case denied, but we also
see rejected the criterion of simultaniety of faults established in the case of
Grand Trunk Railway v. Macdonald. It must be remembered, however, that there
is no equivalent in the Code Napoleon of our art. 1106 C.C. and thus the French
ire suCsives .h.C.
niote dommagc peut
cause
“oMignault, P.B., Droit Civil Canadien, Vol. 5, p. 490.
1 Faribault, Traid de Droit Civil du Quebec, Vol. 8 bis, p. 192.
12Bdl Telephone Co. v. Major Ltle, (1926) 64 C.S. 143; Corp. Jrt Religiecux Ju Tris Jain.Sacramun: v.
Belmont Construction Co. (1936) 39 R.P. 368.
13(1919) 57 S.C.R. 268.
“Nadeau, A., Traidde Droit Cirildu.Quibc:, Vul. s, p. 527.
15PIaniol, Ripert & Boulanger, Traitl Pr.rique du Droit Civil Franfais (1952;, % ol. 6, p. 685.
“sMazeaud, MM. H. & L., Tune, A., Traite Thorique at Pratiqae de la Responabili eCivile, Simze ed.
-1958), Vol. 2, No. 1944. 1983.
No. 1]
CASE AND COMMENT
courts and authors have more freedom to vary the criteria for the existence of
joint and several liability among co-authors of a quasi-delict.
While the body of Canadian doctrine provides little support for the obiter
dictum of Mr. Justice Taschereau, the Canadian jursiprudence offers even less,
inasmuch as it follows the case of Grand Trunk Railway v. Macdonald. In this
case the responsibility of the parties was incurred as a result of a traffic accident,
where the faults of the different parties were similar to those in the present
case. However, in the case of The King, v. Canada Steamships1 7 the fact situation
was different but the same criterion of simultaniety of acts causing damage
was applied. The accident in question in this case occurred when the steamship
company overloaded a landing slip belonging to the Crown. The landing slip
had not been kept in repair and the Court found, on the basis of the facts,
.9a case of common offence or quasi-offence’ of the respondent company and of
the appellant resulting in a joint and several obligation on their part.”1 s
The case of Jeannotte v. Couillard’9 , relied on by the Supreme Court in the
present case, is factually dissimilar to the above cases. A physician wrote out
a prescription for the plaintiff’s child, naming a drug not in commercial use.
The pharmacist changed the prescription without consulting the doctor and
substituted a substance of similar chemical composition. The father sued in
damages for the death of his child, which would have occurred had either drug
been given. The Court of Appeal held that “solidarity only exists when the
damage results from the same act and not from an independant act on the part
of each defendant”. This is the criterion which was expressly rejected in the
Grand Trunk case 20.
The obiter dictum of Mr. Justice Taschereau is thus in conflict with previous
decisions of the Supreme Court. Leaving aside the question whether this court
is, since the abolition of appeals to the Privy Council, still bound by its former
decisions, the Court has a great latitude in distinguishing cases on their facts.
It is respectfully suggested, however, that before adding new criteria for art.
1106 C.C. the implications of this dictum should be carefully considered. It is
in this writer’s opinion, that the recourses now available to
undesirable,
accident victims for damages suffered be restricted by additional obstacles of law.
The present case also reveals the need for a clarification of the rules which
apply to delictual solidarity. Although the law in this area has remained
constant for over forty years the situation is not altogether satisfactory;
consideration of this matter by the Supreme Court would be a welcome addition
to the jurisprudence.
17[1927] S.C.R. 68.
-4at p. 79.
“1(1894) 3 Que. Q.B. 461.
20(1919) 57 S.C.R. 268, at p. 287.
