Recent Cases
NEGLIGENCE – MOTOR VEHICLES –
PRACTICE OF GRIPPING AUTO-
MOBILE RAIN GUTTER AS CONTRIBUTORY NEGLIGENCE. Broersma, V.
Norton, [1968] B.R. 739.
A note on a recent case published earlier in this volume 1 dealt
with two cases, Yuan V. Farstad2 and MacDonald v. Kaiser,3 which
questioned the effectiveness of the argument put forward by the
respective defendants to the effect that the failure of the plaintiff
to wear a seat belt was a negligent act which contributed to his
damages and that the plaintiff should not, accordingly, be entitled to
receive compensation for damages attributable to the negligent act.
The cases were heard by the British ‘Columbia and Nova Scotia
Supreme Courts and the following query was raised:
It will be interesting to see whether the Quebec courts determine that a
bon p~re de famille wears his seat belt or not.
A recent judgment of the Quebec Court of Appeal, while not
answering this question, does give same indication of what a bon
pare de famille does in fact do in his -automobile.
In a automobile accident case to which judicial attention may
never again be turned, defendant’s son ‘lost control of his father’s
car, which overturned, causing injury to plaintiff’s minor son.
Plaintiff sued the driver’s father under the provisions of article 3
of the Highway Victims Indemnity Act,4 since the latter was the
owner of the vehicle.
Plaintiff was successful at trial but was met in appeal with the
argument that plaintiff’s son was gripping the rain gutter of the
car when it overturned and that this was an imprudent action which
rendered the victim the author of his own misfortune. Lovers of a
warm June breeze will be pleased at the words of Casey, J.:
The practice of gripping the gutter with one’s fingers is a common one
and not in itself an act of imprudence.5
The appeal was dismissed.
1 (1,968), 14 McGill L.J. 332.
2 (1967), 66 D.L.R. (2d)295, 62 W.W.R. 645.
8 (1968), 68 D.L.R. (2d)104.
4 R.S.Q. 1964, c. 232.
5 [1968] B.R. 739, at p. 740.
McGILL LAW JOURNAL
[Vol. 14
Now that it has apparently been settled that a bon pare de famille
at least occasionally grips the rain gutter of the car in which he is
a passenger,” we have only to learn whether he does so with his seat
belt on or off.
R.I.C.
BANKRUPTCY –
– WHETHER INTEN-
TION OF DEBTOR TO PREFER IS SUFFICIENT. Re Sitta, (1968), 69
D.L.R. (2d) 620.
FRAUDULENT PREFERENCE
The controversial issue of the relevance of the intention to benefit
from a fraudulent preference in contravention of section 64 of the
Bankiruptcy Act’ was recently faced by Mr. Justice Lacourci~re
of the Ontario High Court in Re Suta.
In that case a creditor had made loans totalling $7,000 to his
son-in-law and at a subsequent date, exactly twenty-four days before
the bankruptcy, he was given security in the form of a mortgage
for these loans. Though it was not disputed that the security had
actually been executed within three months of the bankruptcy, the
judge was called upon to find that the bankrupt had not even made
any arrangements for subsequently giving this security before the
three month period; if he had, this would have been sufficient to
rebut the presumption of intention to prefer.2
The principal submission of the mortgage creditor was that it
had not been shown that he, as well as the bankrupt, had the
view of giving the creditor a preference –
in other words, he
interpreted section 64 so as to require a double or concurrent intent.
This question has long been a controversial one in Canadian
bankruptcy law, and notwithstanding the large number of judicial
decisions on the point 3 it is difficult to determine which view the
6 Quaere: The effect of the plaintiff-driver’s gripping the rain gutter on his
claim for damages suffered.
1 R.S.C. 1952, c. 14.
2 Re Blenkarn Planer Ltd., (1.958), 14 D.L.R. (2d) 719, 37 C.B.R. 147.
3 Decisions favouring the necessity for a double intention to prefer include:
In re Webb, (1921-22), 2 C.B.R. 16; In re Ernest Courville, (1950-51), 31 C.B.R.
106;In re Trafalgar Motors, (1952-53), 33 C.B.R. 87; In re B.C. Boat Sales Ltd.,
(1962), 3 C.B.R. (n.s.) 19; Lee v. Litvack, (1962), 3 C.B.R. (n.s.) 272; Union
Electric Supply Co. Ltd. v. Marcotte, [1965] B.R. 833.
Those in support of the unilateral intention include Burns v. Royal Bank
of Canada, (1921-22), 2 C.B.R. 241; Gavsie v. Goldberg, (1938), 65 B.R. 171;
Re Blenkarn Planer Ltd., (1958), 14 D.L.R. (2d) 719; In Re Ouellet, [1962]
C.S. 327; In Re Piette et Fr re, (1960-61), 1 C.B.R. (n.s.) 1, [1,960] R.L. 156.
No. 3]
RECENT CASES
weight of authority favours. The Supreme Court of Canda has had
the opportunity on two separate occasions to pronounce upon the
issue but declined to do so. 4 Proponents of the single intent theory,
which has won the unanimous support of the authors on the subject,5
argue that to insist on the double intent is to read something into
section 64 which isn’t there and to destroy the presumption which
the legislator has created to assist the trustee in acting in the best
interests of the mass of creditors.
The learned judge in the Suta case cites” Houlden and Morawetz 7
and Savoie s to reach the conclusion “that the absence of fraudulent
intent on the part of the defendant [mortgage creditor]
is im-
material…” 0
In
the absence of any authoritative pronouncements on this
question from the appellate tribunals of Canada, the importance of
the Suta decision is that it adds one more unequivocal authority
to the “single intent theory” arsenal –
a theory which would appear
to have the support of most legal scholars in this field and to be
more compatible with both the text and the spirit of the Bankruptcy
Act.
D.H.T.
4 Salter and Arnold Ltd. v. The Dominion Bank, [1926] S.C.R. 621, 7 C.B.R.
639 [1926] 3 D.L.R. 684; In Re Bernard Motors Ltd., [1960] S.C.R. 385, 38
C.B.R. 162, (1960), 22 D.L.R. (2d) 689.
5 See, for example, Houlden and Morawetz, Bankruptcy Law of Canada,
(Toronto, 1960), p. 151; Duncan and Honsberger, Bankruptcy in Canada, 3rd
ed., (Toronto, 1961), p. 476; Ct , Le traitement prif6rentiel accord6 & un
criancier au cours de la p6riode suspecte, (1967), 2 R.J.T. 286, at p. 303;
Savoie, Commentaires sur l’article 64 de la Loi sur la faillite, (1967), 9 C.B.R.
(n.s.) 1, at p. 5.
6 At p. 624.
7 op. Cit.
8 Op. cit.
9 At p. 624.
McGILL LAW JOURNAL
[Vol. 14
EVIDENCE
–
“WITHOUT PREJUDICE” LETTERS WRITTEN DURING
BONA FIDE NEGOCIATIONS FOR SETTLEMENT –
ADMISSIBILITY IN
SUBSEQUENT LITIGATION WITH A THIRD PARTY. I. Waxman and Sons
Ltd. v. Texaco Canada Ltd., (1968), 69 D.L.R. (2d) 543.
It is a well established principle that bona fide letters written
“without prejudice” with a view to settling the issues between the
parties are privileged from production during litigation proceedings.1
The Ontario Court of Appeal has recently decided that the scope of
the privilege extends to protect the parties from having to produce
such communications
in a subsequent action brought by a third
party dealing with the same or closely-related subject matter.
Aylesworth, J.A., in delivering the judgment of the court, agreed
with the conclusion of the trial judge whom he quoted as follows.
I am of the opinion that in this jurisdiction a party to U correspondence
within the “without prejudice” privilege is, generally speaking, protected
from being required to disclose it on discovery or at trial in proceedings by
or against a third party.
The judgment may be of interest to the Quebec practioner as
well, for as far as can be determined there is only one decided case
in Quebec jurisprudence which touches on this point, Tannenbaum
v. La Cit6 de Montr6al,4 and even in that case, Decary, J., was dealing
with the more general issue of admissions of responsibility.
The headnote reads as follows:
Les aveux de la responsabilit6 envers des tiers et les transactions que le
ddfendeur a pu faire avec des tiers, r6sultant des m6mes causes que celles
d6nonces par le demandeur, ne peuvent en aucune fagon lier le d6fendeur
vis-h-vis du demandeur et ne peuvent 6tre invoqu~es contre le d6fendeur.
In commercial matters where no provision is found in the Civil
Code rules of evidence, “recourse must be had to the rules… laid
down by the laws of England,” which would appear to mean the
common law as interpreted by the courts of that jurisdiction; 7
thus the decision of the Ontario Court of Appeal in the Waxman
case might well provide a useful precedent in the law of evidence
in this province.
D.H.T.
1 See, for example, Phipson on Evidence, 10th. ed. by M.V. Argyle, (London,
19,63), p. 679.
2 Fraser, J. The Ontario High Court decision is reported at (1068), 67 D.L.R.
(2d) 295.
3At p. 544.
4 (1939), 43 R.P. 253. Cited with approval in Nadeau and Ducharme, Trait6
de Droit Civil du Qu6bec, t. 9, (Montr6al, 1.965), p. 507.
5Ibid., p. 254.
6Art. 1206 C.C.
7Nadeau and Ducharme, op. cit., pp. 6 et seq.
No. 3]
RECENT CASES
PRIVATE INTERNATIONAL LAW – MINORITY – MINOR DOMI-
CILED IN BRITISH COLUMBIA – AUTOMOBILE ACCIDENT IN QUEBEC
MINOR INJURED –
CAPACITY TO INSTITUTE ACTION IN DAMAGES.
Wakely v. St-Denis, [1968] R.P. 263.
On June 16, 1963, Catherine Sue Wakely, a minor domiciled in
the Province of British Columbia, was a passenger with Islam in an
automobile driven by Swan. Swan’s vehicle collided with a car
travelling in the opposite direction. That auto was driven and owned
by Charbonneau who died as a result of the collision. The question
of responsibility was not in issue at the trial, Charbonneau’s re-
sponsibility having been determined in an action taken by Islam,
and the conclusions thereof having been adopted in this action by
consent.
Although this action did involve the determination of damages
sustained by a minor in an automobile accident, the issue which
interests us is the defendant’s contestation on the grounds that the
action was instituted by a person not competent to do so, under
either the law of Quebec or of British Columbia. The action, insti-
tuted by Frederick G. Hubbard in his capacity of “procheyn amy”
(next friend) and curator to Catherine Sue Wakely, sought to recover
from defendant the sum of $35,000. Plaintiff described himself as
follows in the writ of summons:
Frederick G. Hubbard, General Secretary of the Young Men’s Christian
Association of the City of Montreal, District of Montreal, acting to these
presents as “next best friend” to Catherine Sue Wakely, according to the
laws of the Province of British Columbia and in his quality of curator to
the said Catherine Sue Wakely, as appointed by the Court in this connection,
Plaintiff
s qualit6.i
In issue therefore was the capacity both under the lex fori and the
lex domicilii of a minor of foreign domicile to institute an action in
a Quebec court to recover damages suatained in an automobile acci-
dent which occurred in Quebec.
The court found that the style of cause was deficient in two
ways: first, according to the civil law, Mr. Hubbard’s appointment
as curator was null and void, as in contravention of art. 348a C.C.;
second, according to the laws of British Columbia, a minor child had
the capacity to take an action through her next friend. The question
then became whether or not it was possible to amend the style of
cause, prescription having elapsed, to remove plaintiff s qualitg in
his capacity of curator to the minor and add the minor as a party
in the action. The court held that both amendments were possible.
1 [1968] R.P. 263, at pp. 264-265.
McGILL LAW JOURNAL
[Vol. 14
There was no doubt in the court’s mind as to the necessity and va-
lidity of the amendment to remove plaintiff &s quatit as a party to
the action in his capacity of curator. As for adding the minor as a
party to the action, the court referred to both the laws of British
Columbia, being the tex domicilii, thus the law governing matters
of status and capacity, and the law of Quebec as the lex fori, the
law applicable to matters of procedure, in virtue of art. 6 C.C. Under
art. 56 C.P.C., the amendment was proper and furthermore it was
provided that it had a retroactive effect, thus dispelling any doubts
about the action’s being prescribed.
The court then dealt briefly with a further issue relating to the
necessity of a minor, who attains majority during proceedings, filing
a petition in continuance of suit. The learned judge found that such
a petition was useless and unnecessary as the minor was already
a party to the action, the judge having held that the amendment
adding her as a party to the action had a retroactive effect. The
court then -proceeded to award damages in the sum of $14,920.
As stated above, it is a rule of Quebec private international law
that matters of status and capacity be governed by the law of the
domicile of such persons, while matters of procedure must be re-
solved by the lex for. 2 It was thus necessary for Mr. Justice Bou-
cher to inquire into both the laws of Quebec and those of British
Columbia, in order to ascertain who had capacity to institute the
present action before the courts of the Province of Quebec. Indeed,
by the very terms of art. 348a, the Court is directed to make such
inquiries whenever it faces incapable persons domiciled elsewhere.
Art. 348a provides in part that:
Whenever an incapable person domiciled outside the Province of Quebec
possesses property or has rights to be exercised in the Province and the
law of the domicile does not provide for him to have a representative as
to his property or his rights, a curator to his property may be appointed
for him to represent him in all cases where a tutor or a curator may
represent a minor or an incapable person under the law of this Province …
Therefore if the foreign law does not make any provisions for
the representation of minors or incapable persons for the purpose
of administering their property and enforcing their rights, then, and
only then, may a Quebec court appoint a curator for those objects
mentioned in the article. In this case, plaintiff s qualti alleged in
the style of cause the existence of some foreign provision to the
effect that a minor could sue by a “next best friend”. The court
relied on the cases of Farmer v. Lacroix and Costlett v. Germain,4
2 Art 6 C.C.
3 [1962] R.P. 230.
4 [1949] B.R. 521.
No. 3]
RECENT CASES
where it was held that art. 348a applies only when it is proven that
the foreign law does not provide for the appointment of a repre-
sentative. In the Costlett case, Lotourneau, C.J., stated:
[Ill incombait au demandeur d’6tablir que la loi du domicile du mineur
qu’il pr6tend representer “ne pourvoit pas h ce qu’il ait un repr~sentant
quant h ses biens et A ses droits.” 5
Mr. Justice St-Jacques was of the same opinion:
Ce n’est pas A la ddfenderesse qu’i incombait de faire la preuve de cette
loi, mais au demandeur lui-m~me, puisque la compdtence du tribunal pour
nommer un repr~sentant n’existe qu’a la condition imposde par l’article
348a, A savoir: que la Ioi de l’6tat de son domicile ne lui permet pas d’avoir
un repr~sentant pour intenter des poursuites en son nom.6
The court inevitably came to the conclusion that plaintiff s qualitg
could not act in the capacity of curator to the minor and that, there-
fore, under our ‘law his appointment as curator was null and void.
The law of British Columbia then had to be ascertained in order
to determine the exact nature of the representation provisions. Two
expert witnesses were called to make proof of the foreign law. The
court relied heavily of the testimony of former Supreme Court Jus-
tice Locke, now a member of the Bars of British Columbia, Manitoba
and Ontario. He testified that, under the laws of British Columbia,
an infant domiciled therein could sue. Marginal rule 138 of the rules
of the Supreme Court of British Columbia was interpreted by him
to mean that
infants may sue as plaintiff by their next friend in the manner heretofore
practiced in equity and may defend by their guardian appointed for that
purpose. 7
Locke also relied on Halsbury.s Thus, according to the law and
practice of British Columbia, the action should have been taken by
the minor through his next friend, and not by someone instituting
the action in his own name in his capacity as next friend of the
minor.
The style of cause, being defective under the laws of Quebec as
well as those of British Columbia, the question became whether the
defects could still be remedied at that late stage. The right to amend
is undoubtedly procedural by the law of Quebec. Consequently it must
be resolved by the application of Quebec law, the lex fori.9 The
5Ibid., at p. 527.
6 Ibid., at p. 529. See generally, Johnson, Conflict of Laws, 2nd ed., (Montreal.
1962), pp. 150-158.
7 [1968] R.P. 263, at p. 265.
8 The Laws of England, 3rd ed., vol. 31, (London, 1960), p. 364.
9 Art. 6 C.C.
McGILL LAW JOURNAL
[Vol. 14
governing provision is found in art. 56 C.P.C., which provides in
paragraphs 2 and 3:
A person who has not the free exercise of his rights must be represented,
assisted or authorized in the manner provided by the law which governs
his status and capacity.
The irregularity resulting from failure to be represented, assisted or
authorized has no effect unless it is not remedied -and this may be done
retroactively at any stage of the case, even in appeal.
The terms of this article do not allow for any uncertainty. The
irregularity appearing in the style of cause of this action was one
which was envisaged by the enactment of art. 56 C.P.C. The court
therefore allowed the style of cause to be amended and to read:
Catherine Sue Wakely, an infant, by Frederick G. Hubbard, General Secre-
tary of the Young Men’s Christian Association of the District of Montreal,
acting as her next friend.10
The amendment was held also to have a retroactive effect. The last
paragraph of art. 56 C.P.C. is new law enacted for the first time in
the new Code of Procedure, which came into force on September 1,
1966. It was primarily designed “to avoid a situation whereby the
rigourous application of technical rules adopted in order to protect
certain persons considered unable to exercise their rights would
themselves lead to the ‘loss of a right.”” The only case on point is
Martel v. Royal,12 to which case the court did not refer. In Martel,
however, the court reached the same conclusions as to the inter-
pretation and application of art. 56 C.P.C. as did Mr. Justice Bou-
cher in the case under review.
Thus, under the lex fori, the law of Quebec, an amendment to
the action to allow the minor to sue on her own behalf by her next
friend, as provided for by the law of her domicile, was allowed as
proper. However the court felt a necssity to inquire if under the law
of the domicile such amendment to the ‘action was also proper. In
the case of Schartner v. Yaski Yoka,’8 the Court of Appeal of British
Columbia allowed an amendment to “convert the action into one by
the infant suing in her own behalf by her next friend.’1 4 This was
sufficient for Mr. Justice Boucher. However his reasons for going
into the law of British Columbia are not clear, as the matter of
1o [1,968] R.P. 263, at p. 267.
11Code of Procedure, Bill 20, 3rd. Sess., 27th Leg. (Que.), 13 Eliz. II, 1964,
(2d) 160 (C.A.B.C.); see also (1957),
pp. 1a and 12a.
12 [1967J C.S. 393.
13 (1957), 22 W.W.R. 26, 9 D.L.R.
21 W.W.R. 322 (S.C.B.C.).
14 See headnote, (1957), 22 W.W.R. 26, at p. 27.
No. 3]
RECENT CASES
amending an action is necessarily procedural in Quebec and thus
only the law of the forum need be considered. 15
In the light of this case, it would therefore appear that where
an action is instituted on behalf of a minor domiciled outside the
Province, it must be taken according to the laws of his domicile ‘ 6
and should it not provide for -some kind of representation of the
minor, and only if it -does not, then, under art. 348a, a curator may
be appointed to him to enforce his rights or administer his property.
Where such foreign law does provide for the appointment of a re-
presentative, but the ‘action was not instituted in accordance with
the laws and procedure of such foreign law, the action may be
amended
to correct any irregularity, and this retroactively, by
virtue of art. 56 C.P.C.
It would seem, it is respectfully submitted, that it would be of
no consequence that the foreign law would or would not be prepared
to allow the same amendment under its procedural rules. In matters
of procedure, the law of Quebec must be -applied.
L.S.
15 See for example Samson V. Holden, [1963] S.C.R. 73, where in an action
under 1056 C.C., the widow instituted proceedings in Quebec on her own behalf
and on behalf of her children, even though under the law of her Maine domicile,
(where the automobile accident also occurred) only the personal representative
of the deceased had a right of action. The court held, inter alia, that where
there is a substantive right of action provided in the foreign law applicable,
the right to sue is procedural and thus Quebec law is applied to determine whether
the widow was the proper person to institute the action before the courts of
Quebec. Even though it was not necessary in this case to amend the action
to provide for the bringing in of the personal representative, the case illustrates
the principle that Quebec law must be applied in so far as those procedural
matters including the proper style of cause and the proper parties to the
action.
16 Art. 6 C.C.
