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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.
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