Date: 19991119
Docket: A-94-98
| Coram: DÉCARY J.A. |
LÉTOURNEAU J.A.
NOËL J.A.
Between:
DAME YVETTE TREMBLAY,
Plaintiff,
- and -
THE PUBLIC CURATOR OF QUEBEC,
in her capacity as liquidator in the succession of the plaintiff,
Dame Yvette Boivin-Tremblay,
Appellant,
- and -
HER MAJESTY THE QUEEN
- and -
THE NATIONAL HARBOURS BOARD,
Respondents,
- and -
COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ
DU TRAVAIL OF QUEBEC,
Intervener.
Hearing held at Montréal, Quebec on Wednesday, November 10, 1999.
Judgment rendered at Ottawa, Ontario, Friday, November 19, 1999.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Date: 19991119
Docket: A-94-98
| Coram: DÉCARY J.A. |
LÉTOURNEAU J.A.
NOËL J.A.
Between:
DAME YVETTE TREMBLAY,
Plaintiff,
- and -
THE PUBLIC CURATOR OF QUEBEC,
in her capacity as liquidator in the succession of the plaintiff,
Dame Yvette Boivin-Tremblay,
Appellant,
- and -
HER MAJESTY THE QUEEN
- and -
THE NATIONAL HARBOURS BOARD,
Respondents,
- and -
COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ
DU TRAVAIL OF QUEBEC,
Intervener.
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This appeal raises the question of the power of the Public Curator of Quebec ("the Public Curator") to continue a suit in an action for damages for bodily injury, when the plaintiff (Yvette Tremblay, the "de cujus") dies while the case is pending and her testamentary heirs renounce the succession. By a judgment published in (1998), 152 F.T.R. 172, the trial judge dismissed the motion in continuance of suit made by the Public Curator under the old Rule 1724 (now 117) of the Federal Court Rules.
[2] The facts out of which the case arose are not in dispute. In June 1975 Yvette Tremblay fell in a stairway owned by the Crown in right of Canada in the Port of Montréal. In June 1976 Ms. Tremblay brought an action for damages for bodily injury against the Crown in right of Canada and the National Harbours Board. The amount at issue, as appears from the most recent amended statement of claim, is some $320,000 plus interest.
[3] By a judgment dated April 20, 1979 a judge of the Trial Division of this Court allowed the action and held the Crown 75 per cent liable. The judgment stated that "by consent of the parties the quantum will be decided, if necessary, at a later date". For reasons which we do not know, the hearing to establish the amount of the compensation did not begin until May 1997. On June 3, 1997, while the hearing was under way, the plaintiff died. The hearing was then adjourned sine die . In August 1997 counsel for the plaintiff informed the Court that the testamentary heirs had renounced the succession and he was notifying the Public Curator. In January 1998 the latter made a motion in continuance of suit, which was dismissed: hence the appeal at bar.
[4] The trial judge, relying on arts. 3, 10, 625, 696, 697 and 698 of the Civil Code of Quebec ("the Civil Code") and on s. 24(3) of the Public Curator Act , R.S.Q. c. C-81 ("the Act"), concluded as follows:
| [16] . . . Pursuant to art. 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 art. 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 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 art. 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 art. 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 art. 10 of the C.C.Q. . . . |
| [17] If the legislature had intended 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 Quebec" found in art. 696 or "the property of the deceased" found in art. 697, but would surely have used the words "seized . . . of the patrimony", as it did in art. 625. |
( Supra, at 182-83)
[5] In my humble opinion, this conclusion indicates a misreading of the applicable legislation. To facilitate understanding of the following reasons, I feel it is worth reproducing most of the said provisions forthwith:
Civil Code of Quebec
| Art. 2. Every person has a patrimony. |
. . . . .
| 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. |
. . . . .
| Art. 614. In determining succession, the law considers neither the origin nor the nature of the property; all the property as a whole constitutes a single patrimony. |
| 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. 630. Every successor has the right to accept or renounce the succession. |
. . . . .
| Art. 647. A person who renounces is deemed never to have been a successor. |
| Art. 648. A successor may renounce the succession provided that he has not performed any act entailing acceptance and that no judgment having the authority of a final judgment (res judicata) has been rendered against him as an heir. |
| Art. 649. A successor who has renounced the succession retains the faculty of accepting it for ten years from the day his right arose, if it has not been accepted by another person . . . |
| Art. 696. Where the deceased leaves no spouse or relatives within the degrees of succession, or where all 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. |
| Art. 699. Subject to the Acts respecting public curatorship and without any other formality, the Public Curator acts as liquidator of the succession. He is bound to make an inventory and give notice of the seisin of the State in the Gazette officielle du Québec; he shall also cause the notice to be published in a newspaper circulated in the locality where the deceased was domiciled. |
| Art. 700. At the end of the liquidation, the Public Curator renders an account to the Minister of Finance . . . |
| Art. 701. The Public Curator, upon rendering account, transfers to the Minister of Finance the amounts constituting the residue of the succession, which then become the property of the State. |
| Heirs who establish their quality may, however, within ten years from the opening of the succession or from the day their right arises, recover those amounts from the Public Curator with interest calculated at the rate prescribed pursuant to the Public Curator Act from the time the amounts were transferred to the Minister of Finance. |
| Art. 802. The liquidator acts in respect of the property of the succession as an administrator of the property of others charged with simple administration. |
| Art. 899. Property, whether corporeal or incorporeal, is divided into immovables and movables. |
| Art. 907. All other property, if not qualified by law, is movable. |
| Art. 935. A movable without an owner belongs to the person who appropriates it for himself by occupation. |
| An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State. |
| Art. 1301. A person charged with simple administration shall perform all the acts necessary for the preservation of the property or useful for the maintenance of the use for which the property is ordinarily destined. |
| Art. 1316. An administrator may sue and be sued in respect of anything connected with his administration; he may also intervene in any action respecting the administered property. |
| Art. 1610. The right of a creditor to damages, including punitive damages, may be assigned or transmitted. |
| This rule does not apply where the right of the creditor results from a breach of a personality right; in such a case, the right of the creditor to damages may not be assigned, and may be transmitted only to his heirs. |
| Art. 3098. Succession to movable property is governed by the law of the last domicile of the deceased; succession to immovable property is governed by the law of the place where the property is situated. |
| However, a person may designate, in a will, the law applicable to his succession, provided it is the law of the country of his nationality or of his domicile at the time of the designation or of his death or that of the place where an immovable owned by him is situated, but only with regard to that immovable. |
Public Curator Act (R.S.Q. c. C-81)
| 12. The Public Curator has the powers conferred on him by the Civil Code, this Act or any other Act . . . |
| 24. The Public Curator shall assume the provisional administration of the following property . . . |
| 3. property situated in Quebec whose owners, assigns or heirs or successors are unknown or untraceable, or which such persons have renounced; |
| Property described in paragraphs 2 to 6 devolves on the State ten years after the beginning of the provisional administration of the Public Curator or, where the owners or heirs have renounced it, upon their renunciation. |
| 25. The Public Curator has the simple administration of the property of which he is provisional administrator without being required to keep it in kind unless otherwise provided by law. |
| 29. Upon being entrusted with the administration of property, the Public Curator, as the administrator of the property of others, shall make an inventory in accordance with Title VII of Book IV of the Civil Code of Quebec respecting the administration of the property of others . . . |
| 33. The property of which the administration is entrusted to the Public Curator must not be commingled with that of the State. |
| 40. The administration of the Public Curator shall cease by operation of law when . . . |
| 3. an heir, an unknown or untraceable owner or the holder of any evidence of indebtedness referred to in subparagraph 4 of the first paragraph of section 24 appears or, if not, ten years after the beginning of his administration. |
| The person who appears shall establish his quality. |
| 43. The Public Curator shall, where required, take any measures necessary for the interment or cremation of the body of the deceased person, at the expense of the succession and with respect for the religious principles of the deceased person. |
| 72. The Public Curator may appear before the courts . . . |
Convention on the Law Applicable to Succession to the Estates of Deceased Persons (October 20, 1988)
Article 16
| Where under the law applicable by virtue of the Convention there is no heir, devisee or legatee under a disposition of property upon death, and no physical person is an heir by operation of law, the application of the law so determined does not preclude a State or an entity appointed thereto by that State from appropriating the assets of the estate that are situated in its territory. |
[6] There is no question that an action for damages for bodily injury is an action involving the breach of a personality right (arts. 3 and 10 C.C.Q.) and that the deceased"s right of action against the perpetrator of this breach is transmitted to the heirs (art. 625 C.C.Q.). Is that right of action thereby transmitted to the State under art. 696 if the heirs renounce the succession?
[7] The trial judge concluded that it was not. He said that in his opinion the "patrimony of the deceased", referred to in art. 625(1), does not include the "rights of action of the deceased" contemplated by the third paragraph of that article " otherwise why would the third paragraph be there? " and accordingly these rights of action are not part of the "property of the succession" which the State "takes", in the language of art. 696.
[8] It is undoubtedly true that for purposes of succession "patrimony", in the traditional sense in which it seems to have been used in art. 625, does not include personality rights, which as France Allard notes in Personnes, famille et successions , Collection de droit 1999 -2000, vol. 3 (École du Barreau du Québec), Cowansville, Yvon Blais, 1999, Les droits de la personnalité, at p. 57, [TRANSLATION] "are generally described as extra-patrimonial rights: they have no inherent monetary value as they relate to the individual in his personal characteristics". By their very nature, these rights cannot be transmitted (art. 3). It is also undoubtedly true that the word "patrimony", in the sense in which it is used in art. 625, does not include the "rights of action" resulting from the breach of a personality right, since the legislature saw fit to devote a separate paragraph to it.
[9] Having said that, the fact remains that the right to damages resulting from the breach of a personality right (art. 1610) and the deceased"s right of action against the perpetrator of such a breach (Art. 625) may be transmitted to heirs and thereby, as a matter of fact, they take on a patrimonial dimension. As Ms. Allard notes at pp. 57 and 58,
| [TRANSLATION] |
| The law recognizes a certain patrimoniality in personality rights . . . if only as a result of invasions of those rights and the monetary evaluation of compensation for the latter. This aspect of patrimoniality, resulting from their intrinsic nature, carries with it a diminution of several of their characteristics, and in particular those concerning the fact that they may not be assigned or transmitted. |
. . . . .
| As personality rights are inherent in the person, it may be assumed that they cease to exist when the person dies. In theory, therefore, they may not be transmitted, and the heirs cannot rely on their own account on a breach of the personality right of the deceased, in view of their personal nature . . . However, the Code allows the rights of action of the deceased to be transmitted against the perpetrator of any breach of one of his personality rights, whether the right was exercised by the deceased before death or not (arts. 625(3) and 1610(2) C.C.Q.) . . . By this inclusion of the rights of action in the patrimony transmitted by succession the Code confirms the extension to breaches of personality rights of the general rule that once a victim suffers injury his right to compensation is part of his patrimony and may thus be transmitted to the heirs . . . |
[10] I note that Ms. Allard speaks of [TRANSLATION] "inclusion of the rights of action in the patrimony transmitted by succession", which leads me to think that the distinction the respondents sought to make for purposes of art. 625 between "patrimony" and "rights of action" is more theoretical than practical. It is probably because the personality rights are not part of "patrimony" in the traditional sense that the legislature thought it necessary to specify in art. 625 that the rights of action relating to such personality rights were also transmitted to the heirs. (See Germain Brière, Le nouveau droit des successions , 2d ed., La Collection Bleue, University of Ottawa, Montréal, Wilson & Lafleur, 1997, No. 73, at p. 65.) The old art. 607 C.C.L.C. did not use the words "patrimony of the deceased": instead, it used the words "the property, rights and actions of the deceased".
[11] With the emphasis now placed by the Code on personality rights, the legislature undoubtedly had to ensure that rights of action relating to such relatively new rights, which were not patrimonial, would be transmitted to the heirs just as rights of action relating to patrimonial rights are, as part of the traditional "patrimony". It seems to me that the distinction made by Christine Lesca-d"Espalungue in La transmission héréditaire des actions en justice , Paris, Presses Universitaires de France, 1992, when she writes, at p. 8, that [TRANSLATION] "the personality right infringed is extra-patrimonial in nature, whereas the right to compensation is patrimonial", is applicable. Article 625, it is worth noting, does not deal with personality rights as such but with rights of action relating to those personality rights. That is the whole difference, which leads me to think that we have in art. 625 what Ms. Allard describes, in note 7 on p. 57, as [TRANSLATION] "emergence of patrimonial personality rights", and what Denys-Claude Lamontagne, in Biens et propriété , 3d ed., Cowansville, Yvon Blais, 1998, at p. 115, calls [TRANSLATION] "a certain "patrimonialization" of extra-patrimonial rights".
[12] This "patrimonialization" is given greater force in succession matters by art. 614 C.C.Q., which states that:
| In determining succession, the law considers neither the origin nor the nature of the property; all the property as a whole constitutes a single patrimony. |
[13] In the case at bar, although the parties and the trial judge approached the matter on the basis of a right of action, it would have been more accurate to speak in terms of a claim, since the right of action was exercised by the plaintiff and her right to damages was recognized by a judgment of this Court rendered before her death: all that had to be determined was the amount of the plaintiff"s claim. There can be no doubt whatever that this claim is part of the "patrimony" within the meaning of art. 625 and that it is "incorporeal movable property" within the meaning of arts. 899 and 907.
[14] In any event, it is not the word "patrimony" that is found in art. 696, but the words "property of the estate", and those words can only cover "patrimony" in art. 625(1) as well as "rights of action" in the third paragraph of that article. The correspondence between what the heirs have seisin of under art. 625 and what the State has seisin of under art. 696 when there is a renunciation of the succession is striking, and how could it be otherwise since in arts. 696 to 702 the legislature intended to ensure that the State had rights over all property without an owner as the result of renunciation of a succession?
[15] The second paragraph of art. 625 deals with "the property [the heirs] receive" and art. 696 states that "the State takes . . . the property". This is more than just a coincidence. The State, art. 697 says, is seized "of the property of the deceased" once there is a renunciation of the succession, which implies that the property of which the State is seized is that renounced by the heirs, and so the very property they were seized of under art. 625. Article 698 deals with "seisin of a succession which falls to the State", and here again this assumes that the State is seized of everything which is part of the succession. Whether we say that the State is seized of the patrimony of the deceased, the property of the succession or the succession, what we are saying for all practical purposes is that the State is seized of exactly what the heirs were seized of.
[16] The trial judge also appears to have relied, to justify his limiting interpretation of the phrase "property of the succession" in art. 696, on the fact that the legislature limited this property to that which is "situated in Quebec". This limitation does not have the meaning given to it by the trial judge. It does not apply to the nature of the property, but to its situs . It is occasioned by reasons deriving from international private and public law. As the Quebec Minister of Justice notes in his Comments on the Civil Code of Quebec, this alleged limitation is intended to harmonize Quebec law with article 16, supra, of the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons (October 20, 1998) (Minister of Justice, Comments of the Minister of Justice: the Civil Code of Quebec, Québec, Les Publications du Québec, 1993, t. 1, at p. 415). As Donovan W.M. Waters explains in the Explanatory Report attached to the text of the Convention (Proceedings of the Sixteenth Session, Hague Conference on Private International Law, t. II (Succession " applicable law), The Hague, Éditions SDU/La Haye, 1990, at p. 525), article 16 is the result of a compromise by which:
| . . . if the State of the law applicable under the Convention differs from the State of the situs, and the situs State regards itself as the appropriate party to take the assets on its soil, whether in furtherance of the regalian theory or the ultimus heres theory, the situs is permitted so to do. |
Thus, if the succession at issue opened in Ontario and no heir appeared, and the Convention was applicable (I repeat, it has not been ratified by Canada), Quebec could have seized the movable and immovable property of the succession located in Quebec whatever Ontario law might say. Of course, there is no conflict of laws in the case at bar: the succession opened in Quebec, and Quebec is the situs of the right of action and the claim.
[17] Finally, there is nothing to justify the connection made by the trial judge between renunciation of the succession and extinction of the right of action. Under art. 647, the effect of renunciation is to cause the person renouncing to lose his status as a successor retroactively. The successor is deemed never to have been a successor. The succession remains intact, as if there had been no successor. If the succession was no longer intact, for example because of a debt postponement granted by a heir, there could be no renunciation as, because of the action so taken, the heir would be deemed to have accepted the succession (art. 648). Further, the idea of an extinction of debt resulting from a renunciation of the succession is inconsistent with the right conferred by art. 649 on an heir who has renounced to change his mind and accept the succession. The effect of renunciation is thus not to extinguish the rights which are part of the property of the succession, but to give seisin thereof to the State rather than to the heirs, who do not want it. The State is seized of the property of the succession which the heirs have renounced and that property includes the rights of action.
[18] Reading the provisions thus does not support the argument made by the respondents.
[19] That is not all. The trial judge appears to me to have misunderstood the nature of the State"s right over the property which becomes unclaimed and the function, duties and powers of the Public Curator in administration of that property.
[20] Among other innovations, art. 696 terminates a debate that had existed between supporters of the ius regalium argument " property without an owner belongs to the State in its capacity as sovereign " and supporters of the inheritance law argument " the State is an ultimate heir. (See Jacques Beaulne, Les successions (Ouverture, transmission, dévolution, testaments ) 247, at p. 287 et seq., in La Réforme du Code civil: Personnes, successions, biens, t. 1 (collected texts by the Barreau du Québec and the Chambre des notaires du Québec), Les Presses de l"Université Laval, 1993.) The State is seized "in the same manner as an heir" precisely because, as it is not an heir, a means had to found for it to take the property of the succession and the means used was that already used for the heirs, namely seisin.
[21] By formally opting for the ius regalium argument, the new Civil Code ensures that, to begin with, the State will oversee the administration of property without an owner pending the appearance of an unknown successor or in the event an heir who has renounced the succession changes his mind, and thereafter, the State will acquire as owner property which has remained without an owner beyond the waiting period.
[22] As indicated in art. 696, the State "takes" the property of a succession once all the successors have renounced it. It is then "seized" of that property (art. 697) and that seisin is exercised by the Public Curator (art. 698). During that seisin the Public Curator has the status of an administrator of the property of others and the property of the estate which is under his administration may not be mingled with property of the State (art. 698). Once his administration is over, he returns to the Minister of Finance money which is the balance of the estate and this money "then become[s] the property of the State" (art. 701). The money so acquired may nevertheless be recovered by an heir who establishes his status within the deadline imposed by art. 701. In short, once property is without an owner because of renunciation of a succession, the State takes possession of the property, administers it on behalf of another for a certain time and, if no claimant appears, becomes its owner.
[23] The Public Curator is the institution to which the legislature has entrusted the intermediary control, if I may so put it, between the time property loses its owner because of renunciation of a succession and the time it finds a new one in the person of the newly located successor, or failing that the State. The Public Curator administers ownerless property of which the State has seisin. Such administration is by its nature provisional, and the title of Section V of the Public Curator Act takes care to specify this. Not only may the Public Curator appear in the courts (art. 1316 C.C.Q.), he must also do that when his presence in the courts is necessary for the preservation of the property of which he has provisional administration (art. 1301 C.C.Q.). It has even been suggested that a creditor of the succession could exercise the rights and actions of the Public Curator by an oblique action (art. 1627 C.C.Q.), if the Curator neglected to do so (Langelier v. Vachon, [1996] R.L. 339, at 353).
[24] In the case at bar, the Public Curator had to continue the suit since he had a duty to ensure that the as yet undetermined claim the deceased had against the respondents continued to be part of the property of the succession. By dismissing the continuance of suit the trial judge, as it were, impoverished the succession and, eventually, the successor if located or the Quebec State, for the benefit of the Crown in right of Canada, whose debt he extinguished. Such a result is inconsistent with Quebec law on successions in general, with the ius regalium as defined in the Civil Code of Quebec and with the powers and duties of the Public Curator of Quebec as described in that Civil Code and the Public Curator Act.
[25] I would accordingly allow the appeal, reverse the trial judgment and allow the motion in continuance of suit made by the Public Curator of Quebec.
[26] Rendering the judgment which should have been rendered, the Court orders:
| 1. that the Public Curator, in her capacity as liquidator in the estate of the late Dame Yvette Boivin-Tremblay, be appointed plaintiff in continuance of suit for and on behalf of the plaintiff for all legal purposes; |
| 2. that the style of cause be amended by the Registry accordingly to show the Public Curator, in her capacity as liquidator in the estate of the late Dame Yvette Boivin-Tremblay, as plaintiff in continuance of suit; |
| 3. that if necessary the proceedings continue as if the Public Curator, in her capacity as liquidator in the estate of the late Dame Yvette Boivin-Tremblay, was substituted for the late Dame Yvette Boivin-Tremblay. |
[27] The Public Curator of Quebec will be entitled to costs against the respondents on appeal and at trial.
| Robert Décary J.A. |
I concur.
Gilles Létourneau J.A.
I concur.
Marc Noël J.A.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: A-94-98 |
| STYLE OF CAUSE: Dame Yvette Tremblay et al. v. The Queen et al. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 10, 1999 |
| REASONS FOR JUDGMENT BY: Décary J.A. |
| CONCURRING REASONS BY: Létourneau J.A. |
Noël J.A.
| DATED: November 19, 1999 |
APPEARANCES:
| Nathalie Lupien FOR THE APPELLANT |
| Yvon Brisson FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Malo, Dansereau FOR THE APPELLANT |
Montréal, Quebec
| Guy & Gilbert FOR THE RESPONDENT |
Montréal, Quebec