T-1584-71
Rejean Maurice (Plaintiff)
v.
The Queen (Defendant)
and
T-1619-71
The Quebec Workmen's Compensation Commis
sion (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Ottawa, November 4 and
December 1, 1975.
Crown—Accident—Negligence apportioned: Defendant
75%, Plaintiff Maurice 25%—Parties unable to agree on
draft of final judgment—Interpretation of sections 7(3) and 8
of the Quebec Workmen's Compensation Act—Workmen's
Compensation Act, R.S.Q. 1964, c. 159, ss. 7(3), 8.
As a result of an auto accident, plaintiff Maurice was held
25% liable, and defendant 75%. Parties were unable to agree on
a draft final judgment, and submitted representations, as per
mitted by the Trial Judge. There was a difference concerning
the meaning of sections 7(3) and 8 of the Act, the issues being
(1) whether the Commission could recoup from money received
by plaintiff Maurice under headings of damages under which
the Commission is not liable to compensate, or whether its right
of subrogation is limited to amounts paid by it with respect to
those losses for which it is legally liable to compensate the
workmen, and (2) whether, from the amount actually recovered
by the Commission from defendant with respect to those losses
for which the Commission is liable to compensate Maurice,
before paying any surplus to Maurice, it can first deduct the
full amount it has paid, and will pay to him, or whether it must
only deduct 75% with all of the excess up to the total recovered
belonging to Maurice.
Held: formal judgment: for plaintiff Commission,
$23,616.72; for plaintiff Maurice, $4,048.32. (1) Following
Mingarelli v. Montreal Tramways, the subrogation is limited
to amounts paid by the Commission with respect to those losses
for which it is legally liable. (2) In Sebaski v. Weber, (Worker:
60%; defendant: 40%) the Commission was entitled to recover
100% of the compensation paid or to be paid to the worker, and
did not reduce the amount to which the Commission was
entitled from the amount recoverable from defendant to 40% of
its claim. As the Commission had paid out more than the
actual amount recovered from defendant, it was entitled to the
full amount recovered, and the worker was not entitled to
receive anything from defendant. This is good law. There is no
principle of common law, nor anything in the Act which
abrogates or limits the general right of subrogation under
section 7 or requires, as between the Commission and worker,
that the contributory negligence of the worker be taken into
account, although as between the Commission and the third
party, the former is obliged to suffer the consequences of any
contributory negligence by the worker and to suffer its ultimate
right of recovery to be reduced where the Commission's claim
exceeds the net amount payable after considering the worker's
negligence.-
Mingarelli v. Montreal Tramways Company [1959]
S.C.R. 43, followed. Sebaski v. Weber Construction
[1972] S.C. Que. 557, agreed with.
SETTLEMENT of minutes of judgment.
COUNSEL:
R. Bélec for plaintiff Maurice.
J. M. Roy for plaintiff, Quebec Workmen's
Compensation Commission.
R. Cousineau for defendant.
SOLICITORS:
Bélec, Boulanger, Joyal & Bélec, Hull, for
plaintiff Maurice.
J. M. Roy, Mont Laurier, for plaintiff Quebec
Workmen's Compensation Commission.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for settlement of
minutes of judgment rendered in English by
ADDY J.: These two actions, arising out of the
same automobile accident, were tried together and
Associate Chief Justice Noël, since retired, deliv
ered written reasons for judgment on the 8th of
August 1972. The negligence was apportioned 75%
against the defendant and 25% against the plain
tiff Maurice and the reasons fixed various amounts
under the several headings of damages claimed. In
the concluding paragraph there was a provision
that, in the event of the parties being unable to
agree on the draft of an appropriate final judg
ment, they might submit their respective represen
tations in writing.
Counsel being unable to agree, ultimately sub
mitted their representations in writing and, subse
quent to the Associate Chief Justice's retirement,
agreed that I should settle the minutes of the
judgment and cause same to be issued in accord-
ance with my findings as to the contents of the
reasons and in accordance with the law applicable
to such findings.
In addition to the written representations, oral
argument was heard by me on the 4th of Novem-
ber 1975 pertaining to this matter. At that time,
counsel agreed as to the total amount of damages
which should be awarded in both actions under the
various headings. There was, however, a great
difference of opinion between the plaintiff Mau-
rice and the plaintiff The Quebec Workmen's
Compensation Commission (hereinafter called the
"Commission") as to the interpretation of sections
7(3) and 8 of the Workmen's Compensation Act'
on two distinct issues. The relevant portions of the
above-mentioned sections read as follows:
7. (3) If the workman ... elect to claim compensation under
this act, the employer, if he is individually liable to pay it, or
the Commission ... shall be subrogated pleno jure in the rights
of the workman ... and may, personally or in the name and
stead of the workman ... institute legal action against the
person responsible, and any sum so recovered by the Commis
sion shall form part of the accident fund. The subrogation takes
place by the mere making of the election and may be exercised
to the full extent of the amount which the employer or the
Commission may be called upon to pay as a result of the
accident. Nevertheless, if as a result of this act, the employer or
the Commission happen afterwards to be freed from the obliga
tion of paying a part of the compensation so recovered, the sum
not used shall be reimbursable within the month following the
event which determines the cessation of the compensation.
8. Notwithstanding any provision to the contrary and not
withstanding the fact that compensation may have been
obtained under the option contemplated by subsection 3 of
section 7, the injured workman ... may ... claim, under
common law ... any additional sum required to constitute, with
the above-mentioned compensation, an indemnification propor
tionate to the loss actually sustained.
The two questions on which there was disagree
ment as to the interpretation and effect of the
above-mentioned sections were the following:
1. Whether the Commission could recoup from
monies received by the plaintiff Maurice under
headings of damages under which the Commis
sion is not legally liable to pay compensation or
whether the Commission's right of subrogation
is limited solely to amounts paid by it with
respect to those losses for which the Commission
is legally liable to compensate the workmen?
R.S.Q. 1964, c. 159.
2. Whether, from the amount actually recov
ered by the Commission from the defendant
with respect to those losses for which the Com
mission is legally liable to compensate Maurice,
before paying any surplus to Maurice, the Com
mission can first deduct the full amount which it
has paid to him in the past and will be paying in
the future or whether the Commission must only
deduct 75% of any such amounts paid or to be
paid by it with all of the excess up to the total
amount recovered belonging to Maurice?
As to the first question, it seems to have been
conclusively answered in the negative in a unani
mous decision of the Supreme Court of Canada in
the case of Mingarelli v. Montreal Tramways
Company 2 . Although in this last-mentioned case
the claim did not involve the Commission but
rather an employer who was obliged to pay direct
ly as one of the employers included in Schedule Il
of the Act, the same principle must necessarily
apply since it is clear that in section 7(3) the
subrogation rights of an employer where the
employer pays the compensation are identical to
those of the Commission when the latter pays it.
After quoting in full sections 7(3) and 8 of the
Act, Abbott J., in delivering the judgment of the
Court, stated at page 46 of the above-mentioned
report:
The subrogation provided for in subsection 3 of section 7 is an
exception to the general law; it must be strictly interpreted and,
as Bissonnette J. has pointed out in Commission des Accidents
du Travail de Québec v. Collet Frères Limitée [1958] Que.
Q.B. 331 at 334, the section provides only for a partial subroga-
tion. In my opinion that subrogation is limited to amounts paid
by the employer with respect to those losses for which the
employer is legally liable to pay compensation under the Act
and can be applied only to amounts recovered with respect to
such losses from the author of the accident. For instance, a
workman has no claim against his employer under the Act for
damages sustained by him as a result of pain and suffering and,
if he claims and recovers such damages from the author of the
accident, the employer is not entitled under the subrogation to
receive or be paid any portion of such amount. [The underlin
ing is mine.]
As to the second question, counsel for the Com
mission referred me to the case of Sebaski v.
Leonard J. Weber Construction'. In that case, the
2 [1959] S.C.R. 43.
3 [1972] S.C. Que. 557.
worker having been found 60% negligent and the
defendant 40% negligent, the Court held that, as
between the Commission and the worker, the
Commission was entitled to recover 100% of the
compensation paid or to be paid by it to the worker
and did not reduce the amount to which the Com
mission was entitled from the amount recoverable
from the defendant to 40% of its claim. The net
result of the finding was that, as the Commission
had paid out more than the actual amount recov
ered from the defendant, the Commission was
entitled to the full amount recovered and the
worker was not entitled to receive anything from
the defendant. Had the Commission's entitlement
been reduced by a percentage equivalent to the
contributory negligence of the worker, the latter
would have been entitled to a considerable share of
a total amount recovered from the defendant. The
Trial Judge at pages 565 to 567 of the above-men
tioned report summarized some of the jurispru
dence on the matter. I consider the following
extracts from his judgment and citations therein as
most relevant to the question in issue:
[TRANSLATION] It is now settled law that amounts received
or to be received from the Workmen's Compensation Commis
sion must be deducted from the amount of damages payable to
the victim. Paradis v. Guay [1945] S.C. 353; Lemay Construc
tion Ltée v. City of Victoriaville [1970] C.A. 181; Active
Cartage Limited v. Workmen's Compensation Commission of
Quebec [1967] Q.B. 399; Universal Pipe Line Welding Co. Ltd.
v. McKay [1969] Q.B. 777; Montreal Tramways Co. v. Gau-
dreault [1949] R.L. 516.
In Gerald Henry v. McMahon Transport Limitée [1972] C.A.
66, Lajoie J. wrote:
The Commission is subrogated, up to the amount of the sums
paid or to be paid by it, to all those rights of the worker for
which it pays compensation, and which he could have exercised
himself, including his recourse for suffering and loss of enjoy
ment of life, for which no compensation by the Commission is
provided by the Act. The latter's recourse against the third
party takes precedence over the worker's recourse; he may only
receive the difference between the value of the compensation
paid by the Commission and that portion of the total damages
resulting from the accident to which he is entitled. (On this, see
Adam & Schering Corporation Ltd. v. Dame Bouthillier
[1966] Q.B. 6; Active Cartage Limited v. Workmen's Compen
sation Commission of Quebec [1967] Q.B. 399.)
I believed this to be good law and, contrary to
what was alleged by counsel for Maurice and for
the defendant, the decision does not, in my view,
conflict in any way with the decision in the Min-
garelli case, supra, as there the Court was not
dealing with the question of whether the Commis
sion would be obliged to reduce its subrogation
right to the proceeds received from the defendant
by a percentage equal to the contributory negli
gence of the worker, but was dealing solely and
specifically with whether the Commission was en
titled to share in amounts received for losses for
which the Commission itself was not obliged to
compensate the worker.•
There is no general principle of common law nor
is there anything in the Workmen's Compensation
Act which in any way either abrogates or limits
the general right of subrogation afforded the Com
mission by section 7 or requires, as between it and
the worker, that the contributory negligence of the
worker be taken into account, although, as be
tween the Commission and the third party, the
former is of course obliged to suffer the conse
quences of any contributory negligence on the part
of the worker and to suffer its ultimate right of
recovery to be reduced where the Commission's
claim exceeds the net amount payable after taking
into account the worker's negligence.
It is worthy of note, although I do not found my
decision on this point in any way that, were the
Commission obliged to reduce its claim on the
amount recovered by a percentage equivalent to
the worker's negligence, the latter would most
frequently be receiving more as a total compensa
tion than he would have been entitled to, had he
elected to rely entirely on his rights against the
third party.
I therefore find that in .the case at bar, the
Commission, in sharing the net amount received
from the defendant pertaining to all of the types of
losses for which it is obliged to compensate Mau-
rice, is not obliged to reduce its claim to 75% of
the amounts paid or to be paid by it to Maurice.
Having regard to my findings on the two above-
mentioned issues, I must now decide on the total
amount to be paid by the defendant and how that,
amount should be shared by the plaintiff.
The damages incurred are detailed hereunder
(the figure for partial permanent disability having
been agreed upon):
1. Personal expenses $ 400.00
2. Pain, suffering and inconvenience 1,000.00
.3. Medical expenses 2,752.15
4. Loss of salary 11,220.00
5. Partial permanent disability 21,514.57
TOTAL $36,886.72
The Commission is not entitled to share in the
sums recovered under heads 1 and 2 since they are
not losses for which the Commission would be
liable to compensate Mr. Maurice. Any recovery
under these two headings would thus belong exclu
sively to Maurice and under these headings he will
be entitled to 75% of ($400 plus $1,000) or, in
other words, to $1,050.
The remaining heads of damages 3, 4 and 5
total $35,486.72 and the defendant will be obliged
to pay 75% of this total or $26,615.04.
It has been established that the Commission has
paid or will be paying the following to or to the
credit of the plaintiff Maurice:
Medical expenses paid $ 2,752.15
Salary paid 7,200.00
Partial permanent disability to
be paid by the Commission 13,664.57
TOTAL $23,616.72
This amount of $23,616.72 must therefore, by
reason of its subrogation rights under section 7, be
paid in full to the Commission from the above-
mentioned amount of $26,615.04 recoverable from
the defendant for damages under heads 3, 4 and 5,
leaving a net amount of $2,998.32 payable to the
plaintiff Maurice which when added to the above-
mentioned sum of $1,050 recoverable under items
1 and 2 totals $4,048.32.
Formal judgment will therefore issue against the
defendant as follows: in favour of the plaintiff
Commission, in the amount of $23,616.72, and in
favour of the plaintiff Maurice in the amount of
$4,048.32, both amounts bearing interest at 5%
per annum from the 8th of August 1972. The
plaintiffs will be entitled to their costs against the
defendant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.