Supreme Court of Canada
Commission des accidents du travail du Québec v. Valade, 1982 CanLII 192 (SCC), [1982] 1 SCR 1103
La Commission des accidents du travail du Québec Appellant;
and
Michel Valade Respondent;
and
The Attorney General of Quebec Mis en cause.
1982: May 20; 1982: June 23.
Present: Dickson, Beetz, Estey, Mclntyre, Chouinard, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Administrative law—Workmen’s compensation commission review board—Points to be considered in estimating impairment of earning capacity—Board refused to consider certain points—Writ of evocation—Code of Civil Procedure, art. 846—Workmen’s Compensation Act, R.S.Q. 1977, c. A-3, s. 38(4).
In estimating the impairment of respondent’s earning capacity, a workmen’s compensation commission review board refused, contrary to s. 38(4) of the Workmen’s Compensation Act, to take into account the workman’s fitness to continue his employment or to adapt himself to some other occupation. The Superior Court held that the review board had refused to exercise its jurisdiction and authorized a writ of evocation to be issued. The Court of Appeal affirmed the judgment.
Held: The appeal should be dismissed.
Per Dickson, Beetz, Estey, Mclntyre, Chouinard and Wilson JJ.: The trial judge was justified in authorizing the issuance of a writ of evocation. First, there is nothing in the decision a quo to suggest that the Court of Appeal decided that the authority of a judge to authorize or refuse issuance of a writ of evocation is not discretionary. Secondly, the existence of a right of appeal to the Commission des affaires sociales does not in itself have the effect of excluding the remedy in evocation (art. 846 C.C.P.).
Per Lamer J.: In the circumstances of the present case, the trial judge was justified in authorizing the issuance of a writ of evocation.
[Page 1104]
APPEAL from a judgment of the Court of Appeal of Quebec, [1981] C.A. 37, which affirmed a judgment of the Superior Court authorizing a writ of evocation to be issued. Appeal dismissed.
Bernard Cliche, for the appellant.
Alfred A. Bélisle and Denis Ferland, for the respondent.
William J. Atkinson and René Morin, for the mis en cause.
Judgment of Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.
English version of the judgment of Dickson, Beetz, Estey, Mclntyre, Chouinard and Wilson JJ. delivered by
CHOUINARD J.—By a judgment dated May 26, 1980 Poitras J. of the Superior Court authorized the issuance of a writ of evocation against a decision of the Laval-Laurentides Review Board of the Commission des accidents du travail du Québec [Quebec Workmen’s Compensation Commission] estimating the impairment of respondent’s earning capacity as the result of an accident that occurred on January 17, 1978.
The ground was that the Review Board refused to exercise its jurisdiction, in that it based its estimate solely on the nature of the injury, whereas it should also have taken into account respondent’s fitness to continue the employment in which he was injured or to adapt himself to some other suitable occupation, as provided by s. 38(4) of the Workmen’s Compensation Act, R.S.Q. 1977, c. A-3.
The Court of Appeal affirmed the decision of the Superior Court in a unanimous judgment rendered on December 1, 1980.
Evocation is governed by art. 846 C.C.P., which reads as follows:
The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:
when there is want or excess of jurisdiction;
when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effects;
[Page 1105]
when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;
when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.
However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.
According to appellant the Court of Appeal erred in law on the following points:
[TRANSLATION]
1—In deciding that the codification by the Quebec legislator of the extraordinary remedy when there is want or excess of jurisdiction in art. 846(1) C.C.P. has the effect of removing the discretionary character which such a remedy has at common law;
2—In refusing to exercise its discretion with regard to the case referred to it. In view of the Quebec workmen’s compensation legislation, the Superior Court and the Court of Appeal should have dismissed the motion for a writ of evocation, thus indicating to respondent that he should first have appealed to the Commission des affaires sociales [Social Affairs Commission].
With respect, as regards the first point, there is nothing in the decision a quo, in my view, to suggest that the Court of Appeal decided that the authority of a judge to authorize or refuse issuance of a writ of evocation is not discretionary. Consequently, appellant’s first ground is not applicable in the present case.
As to the second point it should be noted, first, that the second clause of art. 846 C.C.P., which allows the remedy in evocation in cases under paras. 2, 3 and 4 to be invoked only if there is no appeal, does not apply to para. 1. It follows that the existence of a right of appeal to the Commission des affaires sociales does not in itself have the effect of excluding the remedy in evocation.
Moreover, respondent, in his motion, repeatedly referred to the Review Board’s refusal, despite his insistence, to consider his fitness to continue the same employment or to hold some other employ-
[Page 1106]
ment, which it is obliged to consider under s. 38(4) of the Workmen’s Compensation Act (supra).
Respondent also submitted that this is a “firmly established policy” on the part of the Laval‑Laurentides Review Board, whereby it systematically refuses to estimate the impairment of the accident victim’s capacity as provided by the Act. He cited three earlier decisions of the Review Board to the same effect, worded in almost identical terms.
A complete review of the record leads me to the same conclusion as was reached by Claire L’Heureux-Dubé J.A. on behalf of the Court of Appeal to the effect that [TRANSLATION] “the trial judge was justified in authorizing the issuance of a writ of evocation in the circumstances of this case”.
In my view it has not been established that the trial judge did not exercise a discretion judicially.
For these reasons I am of the view that the appeal should be dismissed with costs.
Judgment of Lamer J.
LAMER J.—I have read the opinion of Chouinard J. I am of the view, like him, that in the circumstances of the present case the trial judge was justified in authorizing the issuance of a writ of evocation. I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Jobin, Cliche, Paquet & Associés, Quebec.
Solicitors for the respondent: Godard, Bélisle, Bertrand & St-Jean, Ste-Agathe-des-Monts.
Solicitors for the mis en cause: Boissonneault, Roy & Poulin, Montreal; William J. Atkinson and René Morin, Ste-Foy.