Page images

3. Where such illegal acts are resorted to, the recourse of the person injured, or likely to be injured, is not restricted to criminal prosecution, or a civil action in damages; an application for injunction will lie.

The abstract legal proposition involved is dealt with in art. 72 of the tenth edition of Underhill on Torts, and is discussed by the editor of the Canadian edition of that work at page 155A, where reference is made to the recent English case of Ware & de Fréville v. British Motor Trade Assn. (1921), 3 K.B. 40.

Workmen's Compensation Act R.S.Q. 7323c. and 7328 as

Amended by 9 Geo. V. sec. 69 and R.S.Q. 7325—Principal
Supportand Fixed Wage"-Hernia and Inexcusable

1. Principal Support.

The Quebec Workmen's Compensation Act originally granted recourse only to those ascendants who could prove that the victim of the accident was their “only support.” This expression having been rather strictly interpreted by the Courts, the Legislature, in response to pressure brought to bear upon it, amended the article to read “principal support,” thereby making its interpretation considerably more difficult (9 Geo. V. c. 69). Two recent decisions of the Quebec Court of Appeal indicate the possible divergence of views upon the point.

In “Wayagamack Pulp and Paper Co. Ltd. v. L. Laroche et Uzor" (judgment Dec. 1st, 1922, not yet reported), the Court allowed an appeal from the judgment of Désy, J., on the ground that the deceased workman was not the principal support of the plaintiffs (father and mother). It was in proof that the plaintiff, L. Laroche, owned farm land worth from two to three thousand dollars, that he had lived thereon and from the proceeds thereof for over forty years, during which time he had raised a large family. The victim of the accident (Joseph) and a younger brother were the only two children who had not either died or established independent homes. Of late years, Joseph had worked upon the paternal farm for a couple of months in each year, spending the rest of the time in working for the Appellant or other companies. During the year preceding the accident, he had given his parents about $140 in money, in addition to his work on the farm, estimated at about $150. None of the other children contributed anything to speak of. If, therefore, outside assistance only were to be considered, Jcseph, the victim was practically the only and certainly the principal support of his parents. But, Rivard, J., asks in his notes of judgment, “ Are we not to take into account the personal resources of the ascendant in question ?” He says (translated freely):

“If the Respondents have resources sufficient to enable them to live, and it happens that nevertheless their children make contributions so as to make their situation to some extent easier, must we consider the son who contributes the most as the principal support? Is it not more just to take into consideration all the means of subsistence, and to characterize as principal support that which supplies the greatest portion of the resources ? The latter opinion appears to me to be the better. Joseph Laroche as a matter of fact did nothing more than help his father as every good son living with his parents should do. The respondents' principal means of subsistence was rather the land which they cultivated. They have not, moreover, established that the income from this land was insufficient for them.”

An almost directly opposite view was expressed in the case of Fraser Brace Shipyard Ltd. v. F. X. Mercer (Judgment Dec., 1922, not yet reported). Here, according to the proof, the personal resources of the plaintiff (father of the victim) were insufficient to enable him to live according to the scale to which he had been accustomed, and the victim of the accident contributed practically all his wages to the family budget, another son paying inconsiderable amounts. It is true that in this case the situation of the father was less satisfactory than that of the plaintiff in the “Wayagamack” case, but apart from this fact, the basis upon which the judgment is founded is different. The reasoning of Letourneau, J., who goes into the question more fully than the others, is to the following effect: When a father having regard only to his own resources is in want and a son effectively assists him, such son is a support. And if several sons contribute to supplement the personal resources of the father, the son who contributes the most will be the principal support” within the meaning of the amendment. The wording of the article excludes the taking into consideration of the personal resources of the ascendant and the comparing of these resources with the amount contributed by others.“ To interpret the law as suggested by the Appellant,” says Letourneau, J.,

“would be the equivalent of saying that the principal support is the one who furnishes the ascendant with the greater part of his resources. I cannot believe that if the legislator had desired to convey the idea of the thing instead of the idea of someone who supplied the thing he would not have found an expression other than the one he has used. The words “principal support” indicate someone rather than something, and surely, in any event, rather he who gives than he who receives.”

We have thus two distinct ways of interpreting the expression, and until the Supreme Court has pronounced upon the point there will be uncertainty in every case.

II. Fixed Wage and Overtime.

Here again we have to deal with an amendment enacted by 9 Geo. V. cap. 69, sec. 2 of which adds a par. to art. 7328 whereby it is provided that where a workman receives " a fixed wage he shall not be bound in calculating the year's wages to take into account any remuneration he may have received for overtime work.” The legislators left to the Courts the definition of " fixed wage” and of “overtime work.” The point came up squarely in Grow v. Dominion Engineering Works Ltd., S.C. No. 2196, judgment Dec. 30th, 1922 (not yet reported). The action was brought under the act to recover damages resulting from the alleged injury to plaintiff's eye, his yearly earnings being stated as 1,400 dollars. Defendant pleaded, inter alia, that plaintiff earned during the year preceding the accident considerably more than the maximum of 1,500 dollars. To this plaintiff answered that the amount he received in excess of 1,400 dollars was for overtime work and that he was not obliged to take such excess into consideration. The proof established that as a matter of fact plaintiff had received over 1,800 dollars.

Rinfret, J., on these facts, reasons as follows: On proof that over 1,500 dollars was received the burden is on plaintiff to establish that he comes within the amendment, which is an exceptional provision. Interpreting the expression “fixed wage the learned Judge says:

“ It cannot mean anything else than a wage of so much per week, so much per month or so much per year, irrespective of the exact number of hours during which the workman is at work. It cannot mean a wage which is paid to the workman at a certain rate per hour only for the number of hours during which he actually works. Otherwise the amendment instead of being an exception, would become the general rule; because one can hardly think, outside of truly exceptional C.B.B.-VOL. I.-18a

cases, of an instance where the rate of wages is not fixed. There is a clear distinction between “fixed rate of wages” and “fixed wage” (McCarthy v. Canadian Vickers, 60 S.C. 386).”

Now the plaintiff was paid throughout his employment with defendant at so much per hour, and not so much per week, etc. Hence the exceptional provision cannot apply. It is further pointed out that even if the exceptional paragraph did apply, plaintiff had not established that the amount received in excess of the maximum was for overtime. He did not prove that any definite number of hours was recognised as constituting a day's work, or “straight time.”

“ The only distinction that could be made would be that at a certain period of the year plaintiff was paid at a higher rate for certain hours than for other hours; but even such higher rate did not prevail during the whole of the year, although for a considerable portion of it plaintiff continued to work each day for a longer time than the alleged 'straight time.' Under these circumstances, even if the amendment applied to plaintiff, it would be impossible on the facts proved to hold that in his case there has actually been any overtime work."

111. Hernia and Inexcusable Fault.

There is, perhaps, no class of cases more difficult to deal with under the Act that those based on hernias of an alleged traumatic origin, and the defendant obliged to pay damages for a hernia which has “declared itself” as a result of an accident feels more badly used than in the ordinary cases of traumatic injury. Particularly is this the case where there has been a predisposition to hernia. Such a predisposition does not, of course, relieve the defendant from responsibility (Sachet No. 291 bis), but it must be admitted that such cases afford an opportunity for deceit. A decision just handed down by Martineau, J., however, affords a ray of hope for the employer and for the insurance companies. In Beaulieu v. J. B. Baillargeon Express Ltd. (S.C. No. 2879, judgment Feb. 12th, 1923) plaintiff sought recovery for permanent incapacity resulting from a hernia by an accident in the course of his work as a piano mover. Permanent incapacity of ten per cent was established, which would, in the ordinary course have entitled him to a rent of $52.30 per year, or a capital sum of $833.66. But it was also proved that, as defendant had pleaded, plaintiff had suffered previously from a hernia caused a few years before by the same kind of work. Defendant pleaded that in view of this fact plaintiff was guilty of inexcusable fault in carrying on this kind of work for defendant without informing him of circumstance. The Judge upheld this allegation, and as a result, cut in half the annual rent to which plaintiff would otherwise have been entitled, and reduced the capital award accordingly.

The Judge's notes are not available at the time of going to press, but the decision appears most satisfactory, from the equitable point of view at least. In the cases which come under the Act, the employer stands practically in the position of an insurer towards the workman, and it is but just that the latter should disclose to him any circumstance which make the risk greater than usual.

0. S. T.

« PreviousContinue »