Supreme Court of Canada

Landry v. Lapointe, [1980] 2 S.C.R. 412

Date: 1980-12-02

Charlemagne Landry (Plaintiff) Appellant;

and

Jean Lapointe (Defendant) Respondent.

1980: October 30; 1980: December 2.

Present: Dickson, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC

Contracts—Commission payable to an agent—Assessment of the evidence by the trial judge—Reasons given orally by the trial judge—Reasons not available in the Court of Appeal but entered in the record of the Supreme Court—Principle of non-intervention by courts of appeal.

The case concerns the sum of $3,500 which appellant (“Landry”) claims from respondent (“Lapointe”). From 1955 to 1974, Landry was business manager for Lapointe and Jérôme Lemay, known at that time by the name “Les Jérolas”, and was paid on the basis of a percentage of the amount of the advertising contracts which he negotiated for his clients. Since this percentage had always been 20 per cent of his clients’ fees, Landry claimed 20 per cent of $35,000 from them for the year 1973-74. Lemay paid his share, but Lapointe alleged that he owed nothing for that year, claiming that Landry was not a party to the contract. The Superior Court judge allowed Landry’s action, giving orally the reasons for his judgment. Lapointe brought an appeal, but the transcription of these reasons was not available at the hearing in the Court of Appeal. The judges on the Court of Appeal then proceeded to consider the evidence and, ruling de novo, set aside the decision of the trial judge concerning the amount mentioned. However, Landry has since located the observations of the trial judge and included them in the record in this Court. These observations include the following statement: “…I consider that in the circumstances the weight of the evidence …is favourable to plaintiff and his action is allowed…”.

Held: The appeal should be allowed.

The reasons of the trial judge now in the record provide this Court with some clarification as to the Superior Court judge’s reasoning, which was not available to the Court of Appeal judges. The trial judge, who had the clear advantage of seeing and hearing the witnesses, preferred appellant’s version having regard to the documents filed in the record, and notwithstanding them. It may be presumed that, if the Court of Appeal

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judges had had the benefit of reading the observations of the Superior Court judge, they would have refused to intervene and substitute their opinion for his, despite the fact that they might not have concurred in his opinion. Be that as it may, once the judge’s oral reasons are part of the record, the situation becomes such that substitution by the Court of Appeal of its opinion for that of the trial judge is an unwarranted intrusion in an area which the Courts have always held as being exclusive to the trial judge.

Latour v. Grenier, [1945] S.C.R. 749; Maze v. Empson, [1964] S.C.R. 576; Dorval v. Bouvier, [1968] S.C.R. 288; Métivier v. Cadorette, [1977] 1 S.C.R. 371; Gagnon v. Gauthier, [1958] Que. Q.B. 401; Globe et al. v. Vézina, [1970] C.A. 121; Hood v. Hood, [1972] S.C.R. 244, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec setting aside a judgment of the Superior Court. Appeal allowed.

Charlemagne Landry, for himself.

Jean Crépeau, Q.C., and Victoria A. Percival, for the respondent.

English version of the judgment of the Court delivered by

LAMER J.—This appeal is from a majority decision of the Court of Appeal of Quebec, which allowed the appeal of respondent Jean Lapointe from a judgment of the Superior Court of Quebec, ordering him to pay appellant Charlemagne Landry the sum of $5,100 with interest and costs. Allowing the appeal, the Court of Appeal of Quebec reduced the amount payable by Jean Lapointe to Charlemagne Landry to $1,600. Appellant is asking this Court to restore the trial judge’s decision.

Mr. Landry was for several years, from 1955 to 1974, business manager for Jean Lapointe and Jérôme Lemay, two performers well known to Quebecers at that time as “Les Jérolas”. His remuneration for services rendered was based on a percentage of the amount of the contracts which he negotiated for his clients. With respect to advertising contracts, it is admitted by the parties that this percentage was always—except for the period 1973-74, which is the matter at issue—20 per cent of the amount of their fees.

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In the Superior Court, Lapointe alleged that he owed Landry nothing for 1973-74, and his reasons are summarized by Lajoie J.A. of the Court of Appeal of Quebec as follows (J.R. p. 103):

[TRANSLATION] Lapointe denies owing the sum of $3,500.00 claimed, that is 20 per cent of the fee payable to Lapointe under this contract Exhibit D-2, because Landry was not a party to this contract in 1973-74, contrary to the position in the other years, as he had agreed not to be a party when he refused to sign a contract, prepared by the agency, providing for a commission payable to Landry in which the fee offered was lower than that of the preceding year. Lapointe would only have agreed to sign contract D-2 if Landry was not to receive any commission from him.

Landry denied Lapointe’s allegations, and maintained that the agreement was always that he would receive 20 per cent of the amount obtained, that is for 1973-74, 20 per cent of $35,000, namely the sum of $3,500 from each of his two clients. Lemay is not a party to the case, since he paid Landry; he was called as a witness and corroborated Landry’s version.

The difference between the amount of $3,500 and the amount of the trial judgment, namely $5,100, represents other commissions which Lapointe owed Landry, debts which were indeed admitted by him, and this explains why the Court of Appeal allowed the action in part. Having regard to the particular judicial circumstances of this case, I do not think it is worthwhile or advisable to pursue the description of the facts any further or to make any more lengthy analysis of them.

As a result of unfortunate circumstances for which neither counsel nor the Court of Appeal can be held responsible, the reasons given orally at the hearing by the Superior Court judge in support of his judgment were not available at the hearing in the Court of Appeal. The formal judgment, reproduced in the Joint Record in the Court of Appeal, followed the usual wording (J.R. p. 96):

[TRANSLATION] THE COURT, having heard the evidence on the merits, examined the record, the pleading and the exhibits, for the reasons given orally at the hearing renders judgment forthwith as follows:

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The action of plaintiff is allowed in the amount of five thousand one hundred dollars ($5,100) with interest and costs.

In the Court of Appeal Lajoie J.A., in an opinion concurred in by Bélanger J.A., indicated his awareness of the situation. Thus, he observed [TRANSLATION] “The judgment was rendered forthwith, immediately after conclusion of the hearing, ‘for the reasons given orally at the hearing’, but not reproduced in the record.”

Subsequently in his opinion Lajoie J.A. observed:

[TRANSLATION] “…The Superior Court judge does not indicate in his judgment the reasons that led him to conclude as he did, nor whether he preferred the testimony given by Landry and Lemay to that of Lapointe, nor if so, why. We also do not know whether he considered all the contracts filed, or omitted to do so. It is necessary for this Court to review the entire record, weigh the evidence and arrive at its conclusion.

Judging merely from the testimony itself, I see no reason for preferring one version rather than another.” (J.R. p. 105)

Having said this, the appellate judges then proceeded to consider the evidence and rule de novo as aforementioned. To conclude in favour of Lapointe, Lajoie J.A. of the Court of Appeal examined the terms of some of the contracts concluded earlier between “Les Jérolas” and the advertising firm Cockfield, Brown & Company Limited, as well as the contract for 1974-75, and found in them corroboration of his testimony, [TRANSLATION] “which to my mind” he observed, “makes it more credible, more likely and probable than that of Landry”. (J.R. p. 107)

The appellant in this Court, Mr. Landry, being more industrious than the appellant in the Court of Appeal, has since located the observations of the judge and included them in the record in this Court. In giving his judgment the judge had said the following (J.R. p. 97):

[TRANSLATION] It is not denied that Mr. Landry was authorized to continue negotiating; it was established by Mr. Landry …?—by Mr. Lemay, and Mr. Landry in fact continued the negotiations and obtained five thousand ($5,000) more. Accordingly, I do not see why there

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continues to be any objection to paying. If the idea is that the weight of evidence must establish that forty thousand dollars ($40,000) was due, otherwise commission would not be paid, this is the defence argument, but it is one person’s word against two witnesses who are also as worthy of belief. Accordingly, I consider that in the circumstances the weight of the evidence, I repeat, is favourable to plaintiff and his action is allowed with costs.[^1]

These observations provide some clarification as to the judge’s reasoning, which was not available to our brethren on the Court of Appeal. Thus, it appears that the Superior Court judge concluded that in 1973 Mr. Landry was authorized to enter into negotiations, as he had been since 1955; that taking into consideration the testimony of Lapointe, Landry and Lemay, he concluded that the weight of the evidence was that the parties had not, as Lapointe alleged, departed from the terms of the contract which had governed their business relations for nearly twenty years, and that Landry should be remunerated in accordance with the provisions of that contract, namely that he should receive 20 per cent of the amount obtained. It cannot be assumed that the judge was unaware of the existence of the documents on which a majority of the Court of Appeal relied in arriving at the opposite conclusion. An examination of the record indicates that during the hearing the judge took cognizance of them. The fact that the trial judge did not in any way specifically allude to them in his remarks, and limited himself to mentioning only the authority to negotiate, would suggest just as well if not more so that he was of the opinion, as was Owen J.A. of the Court of Appeal, that the contract which governed their business relationship was that which had existed between them for nearly twenty years, and that he considered to be of little relevance, and in any case inconclusive, variations from one year to the next existing between some of the contracts with Cockfield, Brown & Company Limited. In short, the trial judge, who had the clear advantage of seeing and hearing the witnesses, preferred appellant’s version having

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regard to the documents filed in the record, and notwithstanding them.

It may be presumptuous of me, but I feel that, if the Court of Appeal judges had had the benefit of reading the observations of the Superior Court judge, they would have refused to intervene and substitute their opinion for his, despite the fact that they might not have concurred in his opinion. Be that as it may, once the judge’s oral reasons are part of the record, the situation becomes such that substitution by the Court of Appeal of its opinion for that of the trial judge is an unwarranted intrusion in an area which the Courts have always held as being exclusive to the trial judge. (See inter alia, Latour v. Grenier[^2], at p. 761; Maze v. Empson[^3]; Dorval v. Bouvier[^4]; Métivier v. Cadorette[^5]; Gagnon v. Gauthier[^6]; Globe et al. v. Vézina[^7]. See also the observations of Laskin J., then a puisne judge of this Court, in Hood v. Hood[^8], at pp. 251-54.)

For these reasons, I would allow this appeal, set aside the judgment of the Court of Appeal and restore the judgment of the Superior Court of Quebec, with costs against respondent throughout.

Appeal allowed with cost.

Solicitor for the appellant: Charlemagne Landry, Ville d’Anjou, Qué.

Solicitors for the respondent: de Grandpré, Colas, Deschênes, Godin, Paquette, Lasnier & Alary, Montréal.

[^1]: It is not clear who was responsible for punctuation, or if it really expressed the judge’s inflections; it was clearly not his own, as he rendered his judgment orally. [^2]: [1945] S.C.R. 749. [^3]: [1964] S.C.R. 576. [^4]: [1968] S.C.R. 288. [^5]: [1977] 1 S.C.R. 371. [^6]: [1958] Que. Q.B. 401. [^7]: [1970] C.A. 121. [^8]: [1972] S.C.R. 244.