Date: 19980209
Docket: T-2273-76
OTTAWA, ONTARIO, THE 9th DAY OF FEBRUARY 1998
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
YVETTE TREMBLAY,
Plaintiff,
- and -
HER MAJESTY THE QUEEN and
NATIONAL HARBOURS BOARD,
Defendants.
ORDER
The Public Curator"s motion is dismissed with costs to the defendants.
MARC NADON
Judge
Certified true translation
M. Iveson
Date: 19980209
Docket: T-2273-76
Between:
YVETTE TREMBLAY,
Plaintiff,
- and -
HER MAJESTY THE QUEEN and NATIONAL
HARBOURS BOARD,
Defendants.
- and -
COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ
DU TRAVAIL DU QUÉBEC,
Intervener.
REASONS FOR ORDER
NADON J.:
[1] The issue is whether the Public Curator of the province of Quebec can continue this suit following the death of the plaintiff in June 1997.
[2] The plaintiff"s action is for damages for personal injuries resulting from an accident in June 1975. In an April 1979 decision, Mr. Justice Raymond Décary of this Court established the liability of the parties at 25% for the plaintiff and 75% for the defendants, and left the quantum of the damages flowing from the plaintiff"s injuries to be decided at a later date.
[3] On October 17, 1996, the Associate Chief Justice signed an order setting the hearing for the inquiry into the damages flowing from the plaintiff"s injuries down for May 5, 1997 in Montréal.
[4] The inquiry was held before me on May 5, 6, 8 and 9, 1997, at which time it was adjourned to June 5, 1997 to allow the plaintiff to adduce reply evidence, and to hear the arguments by counsel.
[5] On June 3, 1997, Ms. Lupien, counsel for the plaintiff, informed the Court of the death of her client. I accordingly signed an order adjourning the hearing sine die on June 4, 1997.
[6] In a letter dated August 28, 1997, Ms. Lupien informed the Court that the plaintiff"s heirs had renounced the succession. She also informed the Court that she intended to obtain a mandate from the Public Curator of the province of Quebec.
| [7] On December 18, 1997, during a hearing by conference call, Mr. Dupin, a representative of the Public Curator, informed me that the Public Curator wished to continue the suit. I accordingly made an order on December 18, 1997 setting the hearing of the Public Curator"s motion down for January 23, 1998 in Montréal. The Public Curator"s notice of motion reads as follows: |
| [TRANSLATION] TAKE NOTICE that the Public Curator of Quebec, in her capacity as liquidator of the succession of the late Yvette Boivin-Tremblay, will, through the undersigned counsel, make a motion to this Honourable Court at 30 McGill St., at 10:00 a.m. on January 23, 1998 or as soon as counsel can be heard, for an order that: |
| 1. The Public Curator, in her capacity a liquidator of the succession of the late Yvette Boivin-Tremblay, be designated plaintiff in continuance of suit for and on behalf of the plaintiff for all legal purposes; |
| 2. The style of cause be amended accordingly to include the Public Curator, in her capacity as liquidator of the succession of the late Yvette Boivin-Tremblay, as plaintiff in continuance of suit; |
| 3. The proceedings continue, if appropriate, as if the Public Curator, in her capacity as liquidator of the succession of the late Yvette Boivin-Tremblay, had been substituted for the late Yvette Boivin-Tremblay; |
| 4. In support of her motion, the Public Curator, in her capacity as liquidator of the succession of the late Yvette Boivin-Tremblay, submits the solemn affirmation of Marie Despatis dated January 15, 1998 together with an extract from the document dated January 1, 1997 delegating powers to staff members, a copy of which was published in the Gazette Officielle du Québec, the death certificate of Yvette Boivin-Tremblay issued June 12, 1997 and the renunciation of the succession of Yvette Boivin-Tremblay by her heirs, which was executed on June 26, 1997 by Manon Pépin, a notary in the city and district of Montréal, under number 3337 of her minutes; |
| [8] At the hearing on January 23, 1998, the defendants objected to the Public Curator"s motion on the ground that she could not continue the suit. The parties agree that the applicable law is the law of the province of Quebec, and in particular the provisions of the Civil Code of Québec (C.C.Q.). In my view, articles 3, 10, 625, 696, 697 and 698 are sufficient to dispose of the issue. They read as follows: |
| Art. 3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. |
| These rights are inalienable. |
| Art. 10. Every person is inviolable and is entitled to the integrity of his person. |
| Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent. |
| Art. 625. The heirs are seised, by the death of the deceased or by the event which gives effect to the legacy, of the patrimony of the deceased, subject to the provisions on the liquidation of successions. |
| The heirs are not, unless by way of exception provided for in this Book, bound by the obligations of the deceased to a greater extent than the value of the property they receive, and they retain their right to demand payment of their claims from the succession. |
| The heirs are seised of the rights of action of the deceased against any person or that person"s representatives, for breach of his personality rights. |
| Art. 696. Where the deceased leaves no spouse or relatives within the degrees of succession, or where all the successors have renounced the succession, or where no successor is known or claims the succession, the State takes of right the property of the succession situated in Québec. |
| Any testamentary disposition which would render this right nugatory without otherwise providing for the devolution of the property is without effect. |
| Art. 697. The State is not an heir, but, once all known successors have renounced the succession, or, where no successor is known or claims the succession, six months after the death, is seised of the property of the deceased in the same manner as an heir. |
| It is not liable for obligations of the deceased amounting to more than the value of the property it receives. |
| Art. 698. Seisin of a succession which falls to the State is vested in the Public Curator for a period of ten years from its opening. |
| No property of a succession may be mingled with the property of the State so long as it remains under the administration of the Public Curator. |
| [9] Subsection 24(3) of the Public Curator Act, R.S.Q., c. C-81, is also relevant. It reads as follows: |
| 24. The public curator shall assume provisional administration of the following property: . . . |
| (3) property situated in Québec whose owners, assigns or heirs or successors are unknown or untraceable, or which such persons have renounced; |
| [10] Article 625 of the C.C.Q. provides that the heirs are seized, by the death of the deceased, of the deceased"s patrimony. It also provides that the heirs are seized of the rights of action of the deceased against any person for breach of the deceased"s personality rights. |
| [11] Article 696 then provides that the State takes the property of the succession situated in Quebec as of right where, as in the case at bar, all the successors have renounced the succession. Article 697 completes article 696 by providing that the State is not an heir but is seized of the property of the deceased in the same manner as an heir where the successors have renounced the succession. |
| [12] Article 698 provides that seisin of a deceased"s property which falls to the State is vested in the Public Curator. As for subsection 24(3) of the Public Curator Act , it provides that the Public Curator must assume provisional administration of property situated in Quebec whose heirs or successors are unknown or untraceable, or which such persons have renounced. |
| [13] The parties disagree on the interpretation of the word "property" in articles 696 and 697. According to Ms. Lupien, "property" includes the rights of action left by the plaintiff, and more specifically her right of action against the Crown resulting from her fall in 1975. According to Mr. Brisson, counsel for the defendants, the word "property" refers only to the movable and immovable property left by the plaintiff. The plaintiff"s right of action against the defendants in the case at bar is one that results from the breach of a personality right. This right of action was transmitted to the plaintiff"s heirs but was extinguished when they refused to accept the succession. According to Mr. Brisson, the State is not seized of the plaintiff"s right of action resulting from the breach of a personality right. |
| [14] In my view, the defendants" argument is valid. My reasons for arriving at this conclusion are as follows. The following appears at pages 414-15 of volume 1 of the Minister of Justice"s commentaries on the Civil Code of Québec :1 |
[TRANSLATION] [article 696] This article establishes that the State takes the succession which falls to it in the circumstances described, not as an heir, but by virtue of its jus regalium to seize property on its territory.
The rule established by the article is similar to other rules which provide that things without an owner belong to the State, and to early rules which made the State an irregular successor jure regale rather than jure hereditario. This also appears to be more consistent with what has been written by French authors and judges, who consider the State"s right to be a sovereign right rather than a hereditary right.
Finally, the rule in article 696 makes Quebec law more consistent with that proposed by the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons (October 20, 1988), which makes the state a successor to property only, and allows it to seize only property on its territory, including immovables.
[article 697] In light of the new rule established by article 696, it became necessary to expressly grant to the State the seisin of property which falls to it and to expressly limit its liability for debts to no more than the value of the property it receives.
The article also establishes when the State is seized of the property of the succession.1
[15] I would also like to refer to the texts collected by the Barreau du Québec and the Chambre des notaires du Québec at the time of the reform of the Civil Code.1 More specifically, I wish to refer to the text on successions written by Jacques Beaulne, a notary and an associate professor at the University of Ottawa, which is found at pages 247 et seq. of the first volume. At pages 288-89, Professor Beaulne wrote the following:
[TRANSLATION] Section 1 - Nature of the State"s Rights
134. After much hesitation, the Civil Code of Québec establishes the principle that the State which takes a succession does so as sovereign, not as a successor. Even a brief look into the historical background of the rules on this subject reveals the difficulties the legislature had in deciding what to do. The Civil Code Revision Office first proposed that the State take successions as a true heir, although it would have to be put in possession of the property. This view of the rights of the sovereign was restated in subsequent drafts, although with some modifications. In an about-face, however, the legislator has now made the State"s right to the succession a jus regalium in the Civil Code of Québec as passed. The principal ramifications of this characterization are in the area of international law.
135. Thus, the Crown in right of Quebec is required to take all property situated in Quebec from successions for which there are no relatives beyond the 8th degree, where no successor is known or claims the succession. This right to vesting takes effect as of right, without the requirement that the Crown be provisionally put in possession of the property of the succession, as is currently the case under the C.C.L.C. Finally, under the second paragraph of article 696 C.C.Q., this right is of public order; the deceased cannot disinherit the State or otherwise prevent the vesting of the property in its favour, at least not when the conditions for vesting are present.
Section 2 - Transmission and Administration of the Succession Vested in the State
Sub-section 1 - Attribution of Seisin
136. The fact that the state is not an heir would normally have excluded it from all the rights connected with heirship, including seisin. To overcome this problem, article 697 C.C.Q. expressly confers on the State the same seisin as an heir. The time when the State, as sovereign, is required to take the succession depends on the circumstances: if all successors are known and have renounced, the State takes it as soon as the last successor has renounced. In the other cases, namely when the heirs are unknown or are unaware of their heirship, the date is six months after the opening of the succession, which means, contrary to what article 650 C.C.Q. suggests a priori, that the succession is not abandoned or vacant for 10 years. Lastly, the second paragraph of article 697 C.C.Q. establishes the State"s intra vires liability for the debts of the estate.
[16] In my view, these comments simply confirm the interpretation drawn from a reading of articles 696 and 697 of the C.C.Q. Pursuant to article 697 of the C.C.Q., the Crown in right of Quebec is seized, in the same manner as an heir, solely of the property of the deceased, which the State takes as of right under article 696 of the C.C.Q. In my view, this means that the State is seized of the movable and immovable property of the deceased situated in Quebec, including the rights of action incidental to this property. The right of action in the instant case concerns the breach of one of the plaintiff"s personality rights. This right of action is not a right of action incidental to the property of the plaintiff situated in Quebec. It can be seen from article 625 of the C.C.Q. that the plaintiff"s right of action was transmissible to her heirs. Since they refused to accept the succession, this right of action is in my view extinguished. Under articles 696 and 697 of the C.C.Q., the State is not seized of such a right of action. I must add that there can be no doubt that the plaintiff"s action against the defendants is an action for breach of a personality right, and more specifically a breach of the inviolability of her person within the meaning of article 10 of the C.C.Q.1
[17] If the legislature had indented to transmit to the State something other than the "property" of the deceased and the rights of action incidental thereto, it would surely have used a different expression. It certainly would not have used the words "the property of the succession situated in Québec" found in article 696 or "the property of the deceased" found in article 697, but would surely have used the words "seized . . . of the patrimony", as it did in article 625.
[18] I have accordingly come to the conclusion that the State is not an heir and is therefore not seized of the plaintiff"s right of action against the defendants. Consequently, the Public Curator may not exercise this seisin. The Public Curator"s motion will accordingly be dismissed with costs to the defendants.
Marc Nadon
Judge
Ottawa, Ontario
February 9, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2273-76
STYLE OF CAUSE: Yvette Tremblay v.
Her Majesty the Queen et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 23, 1998
REASONS FOR ORDER BY NADON J.
DATED: February 9, 1998
APPEARANCES:
| Nathalie Lupien FOR THE PUBLIC CURATOR OF QUEBEC |
Yvon Brisson FOR THE DEFENDANTS
SOLICITORS OF RECORD
Malo Dansereau FOR THE PUBLIC CURATOR Montréal, Quebec OF QUEBEC
Guy & Gilbert FOR THE DEFENDANTS
Montréal, Quebec
__________________1 Quebec, Minister of Justice, Commentaires du Ministre de la Justice: le Code civil du Québec (Québec: Les Publications du Québec, 1993), t. 1.
2 In Doré v. Verdun (City), [1997] 2 S.C.R. 862, Gonthier J., writing for the Supreme Court of Canada, stated the following, at p. 873, about the use of the Minister of Justice"s commentaries on the Civil Code :
Of course, the interpretation of the Civil Code must be based first and foremost on the wording of its provisions. That said, however, and as noted by Baudouin J.A. in the judgment under appeal, there is no reason to systematically disregard the Minister"s commentaries, since they can sometimes be helpful in determining the legislature"s intention, especially where the wording of the article is open to differing interpretations (at p. 1327). However, the commentaries are not an absolute authority. They are not binding on the courts, and their weight can vary, inter alia in light of other factors that may assist in interpreting the Civil Code"s provisions.
3 Barreau du Québec and Chambre des notaires du Québec, La Réforme du Code civil, vol. 1 (Sainte-Foy: Les Presses de l"Université Laval, 1993).
4 On this subject, see the comments of Gonthier J. in Doré v. Verdun (City), supra note 2 at p. 882.