Thérèse Godbout, Louis Godbout v. Iris Godbout, 2017 SCC 18

SUPREME COURT OF CANADA Citation: Godbout v. Pagé, 2017 SCC 18, [2017] 1 S.C.R. 283 Appeals heard: October 6, 2016 Judgment rendered: March 24, 2017 Dockets: 36385, 36388 Between: Thérèse Godbout, Louis Godbout and Iris Godbout Appellants and Jean-Maurice Pagé, Anick Dulong, Moreno Morelli, Martin Lavigne, Jacques Toueg and Hôpital du Sacré-Coeur de Montréal Respondents - and - Attorney General of Quebec and Société de l’assurance automobile du Québec Interveners And between: Gilles Gargantiel Appellant and Attorney General of Quebec Respondent

- and - Société de l’assurance automobile du Québec Intervener Official English Translation Coram: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. Reasons for Judgment: (paras. 1 to 78) Wagner J. (McLachlin C.J. and Abella, Karakatsanis, Gascon and Brown JJ. concurring) Dissenting reasons: (paras. 79 to 160) Côté J. Godbout v. Pagé, 2017 SCC 18, [2017] 1 S.C.R. 283 Thérèse Godbout, Louis Godbout and Iris Godbout Appellants v.

Jean-Maurice Pagé, Anick Dulong, Moreno Morelli, Martin Lavigne, Jacques Toueg and Hôpital du Sacré-Cœur de Montréal Respondents and Attorney General of Quebec and Société de l’assurance automobile du Québec Interveners - and - Gilles Gargantiel Appellant v. Attorney General of Quebec Respondent and

Société de l’assurance automobile du Québec Intervener Indexed as: Godbout v. Pagé 2017 SCC 18 File Nos.: 36385, 36388. 2016: October 6; 2017: March 24.

Present: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for quebec Insurance — Automobile insurance — Bodily injury — No-fault public automobile insurance scheme — Automobile accident causing injury — Victims suffering aggravated or separate injuries because of subsequent faults attributable to third parties — Whether bodily injuries suffered by victims were “suffered . . . in an accident” within meaning of Automobile Insurance Act — Type of causal link required in case of subsequent fault committed by third party — Whether civil action against third parties in question is barred by application of public compensation scheme — Automobile Insurance Act, CQLR, c.

A-25, ss. 1 “accident”, “damage caused by an automobile”, 83.57. TG and GG were seriously injured in automobile accidents. Insofar as the alleged facts are assumed to be true, they subsequently suffered additional injuries because of faults attributable to third parties. These third parties were, in TG’s case, the medical staff who treated the injuries she had suffered in the accident and, in GG’s case, Sûreté du Québec officers who were allegedly negligent in searching for the crashed vehicle he was in.

TG and GG have since been compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (“SAAQ”) under the Automobile Insurance Act (“Act”). However, they are seeking to bring actions in damages against the third parties in question for subsequent faults that caused them aggravated or separate bodily injury.

In the case of the appeal concerning TG, the parties jointly submitted to the Superior Court the question whether s. 83.57 of the Act has the effect of barring any civil action against a third party in respect of a fault that was committed subsequently to an automobile accident and that caused a separate injury. The Superior Court found that such an action was admissible provided that the existence of a separate fault and a separate injury could be proved.

The Court of Appeal allowed the appeal and set aside the Superior Court’s decision on the basis that s. 83.57 barred a civil action against the third parties in question. In the case of the appeal concerning GG, the third parties in question asked for the dismissal of the action under art. 165(4) of the former Code of Civil Procedure . The Superior Court granted the motion and dismissed the action on the basis that the prohibition against civil actions set out in s. 83.57 of the Act applied.

In a decision rendered the same day as its decision concerning TG, the Court of Appeal dismissed the appeal and affirmed the Superior Court’s decision. Held (Côté J. dissenting): The appeals should be dismissed.

Per McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ.: The question in the appeals is whether a person injured in an automobile accident who is eligible to receive compensation under the Act but whose condition is aggravated as a result of a fault committed by a third party can bring a civil action against the third party to seek compensation for bodily injury resulting from that subsequent fault.

The question arises because the Act provides that, where bodily injury was “suffered . . . in an accident” (“ causé dans un accident ” in the French version of the Act), that is, “any event in which damage is caused by an automobile”, the compensation the victim can receive is limited exclusively to amounts paid by the SAAQ regardless of who is at fault. Moreover, s. 83.57 states that such compensation “stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice”.

The difficulty in construing the word “ causé ” (caused) used in the French version of the Act in the context of the specific scheme of the Act stems mainly from its evocation of conceptions of causation that apply in the law of civil liability under the Civil Code of Québec . In light of the context of the enactment of the Act and the legislature’s intent, on the one hand, and the principles applicable to the

interpretation of the Act, on the other, the appropriate causal link in the context of the compensation scheme established by the Act cannot be the same as or be derived from the one that prevails in the general law of civil liability: it is sui generis in nature. It must be given a large and liberal

interpretation that will further the Act’s purpose, although that

interpretation must also be plausible and logical. Whether such a link exists is primarily a question of logic and fact, and depends on the circumstances of each case. The appropriate causal link in the context of the Act is of course not as strong as the one that applies in the law of civil liability. We must therefore refrain from borrowing from concepts associated with the traditional form of causality, such as the distinction between the occasion and cause of the injury.

For the purposes of the Act, it will be enough to establish a sufficiently close link between the bodily injury and the automobile accident; in contrast, a fortuitous connection will not suffice. The Act was enacted nearly 40 years ago to address the serious inequities then occurring in the compensation of victims for bodily injuries caused by automobiles. It was rooted in a societal choice that reflected a social compromise by which all drivers were to collectively assume the financial consequences of bodily injuries caused by automobile accidents.

Any civil action with respect to such injuries has been prohibited since that time. As the legislature intended, an automobile accident victim who suffers bodily injury in the accident and as a result of events subsequent to the accident — related, for example, to care or treatment provided after the accident or to the acts of first responders (police officers, ambulance attendants, etc.) at the scene of the accident — need not identify someone who has committed a fault, is guilty or can be blamed for the aggravation or a separate part of his or her injury.

The purpose of the Act is to ensure that the victim need not engage in costly and uncertain court proceedings in order to obtain compensation for the whole of his or her injury. The Act confers civil immunity on everyone in respect of injuries suffered in automobile accidents, and this immunity applies with no exceptions. Provided that there is a plausible, logical and sufficiently close link between, on the one hand, the automobile

accident and the subsequent events (in the context of these appeals, the fault of a third party) and, on the other hand, the resulting injury, the Act will cover the whole of the injury, and the immunity it confers will apply. Thus, the fact that the injury in question has an aggravated or separate aspect that can be attributed to events that occurred subsequently to the automobile accident is immaterial: those events will be deemed to be part of the accident, and therefore of the cause of the whole of the injury.

In these cases, the additional bodily injury suffered by TG and by GG is an injury “suffered . . . in an accident” within the meaning of the Act . It originated in a series of events that have a plausible, logical and sufficiently close link to one another and have, in each case, the automobile accident as their starting point. The causal link under the Act is established regardless of the fact that the accident and the fault alleged against the third parties in question did not occur at the same time or in the same place.

As a result, TG and GG are entitled to the compensation provided for in the Act but, because of s. 83.57 of the Act, are not entitled to bring further civil liability proceedings against the third parties in order to obtain additional or complementary compensation. Finally, on the alternative issue, the acceptance of the compensation payments received from the SAAQ does not in itself bar any claim for damages from anyone in addition to or in lieu of that compensation on the basis that it entails a presumption of waiver of the right to bring an action against a third party.

In the civil law, waiver (or renunciation) is either express or tacit. Moreover, whether there has been a waiver is very much a fact-based question that depends, inter alia , on the intention of the waiving party. Evidence of that intention must be presented and analyzed before a waiver can be found to have occurred. No such intention has been proven in these cases, as they have not yet gone to trial, which means that it has not been possible to assess any evidence of the intention of TG or that of GG.

Per Côté J. (dissenting): It was not open to the Court of Appeal to determine whether the injuries alleged by TG and GG in these cases were aggravated, as opposed to separate, injuries. An aggravated injury is very different from a separate injury caused by a fault subsequent to a first event. The fact that these cases concern separate injuries is admitted, as is — for the purposes of these appeals — the fact that the alleged faults were subsequent to the accidents.

Each time there is a separate injury, the court cannot conclude that an action is barred without first determining whether the injury in question was “suffered . . . in an accident”. The wording and purpose of the Act , together with the context in which it was enacted and the legislative intent, support the conclusion that it is necessary in each case to determine whether the Act applies to the separate injury at issue. A large and liberal

interpretation is necessary in the determination of whether bodily injury was suffered in an accident. However, such a large and liberal

interpretation of the Act in combination with the sui generis nature of the causal link cannot have the effect of making the scope of the Act so broad that the issue of causation becomes totally irrelevant. It is wrong to conclude that the sui generis nature of causation in the context of the Act’s compensation scheme necessarily implies that the initial chain of causation can never be broken by a new fact that causes a separate injury. No

interpretation can be found to be plausible and logical if it leads to the conclusion that a medical or other fault subsequent to an accident is considered to occur “in an accident” simply because it has a link to that accident. Such an

interpretation has the effect of linking separate and subsequent injuries to an accident that is merely the occasion of their occurrence but is not their cause. That

interpretation cannot be reconciled with the words of the Act . The only way to truly respect the legislature’s intent, which it has expressed in clear language in the Act , is to allow a civil action to be brought against a third party who committed a fault subsequently to an automobile accident and caused injuries separate from those suffered in the accident itself. In other words, the prohibition of civil actions provided for in s. 83.57 of the Act does not apply in such circumstances.

Section 83.57 creates an exception to the general law of civil liability, which is based on the principle of full compensation, and such an exception must be narrowly construed. In the Act, the legislature has defined a compensable bodily injury as any physical or mental injury, including death, “suffered . . . in an accident” and has, in addition, defined an accident as “any event in which damage is caused by an automobile”.

If it had wanted the scope of the compensation scheme to extend to separate injuries suffered as a result of an event subsequent to an accident (here, the subsequent fault), the legislature would have said so clearly and would thus have extended the scope of the Act to include injuries suffered “following an accident”. The words of the Act and common sense thus preclude the argument that a separate injury caused by a medical or a hospital fault — or by negligent conduct on the part of police officers — subsequent to an accident can constitute an injury that was “suffered . . . in an accident”.

A medical or hospital fault, or a fault committed by police officers, does not occur in the general context of the use of a vehicle. Such an

interpretation is also mindful of the internal consistency of the Act , as it gives full meaning to s. 12.1 . That provision, which contemplates the possibility of a party bringing a civil action in order to seek compensation for bodily injuries that were not “suffered . . . in an accident”, shows that a victim has a right to bring a civil action against a third party in respect of an injury that is not covered by the Act. Road risks are what the legislature wanted to provide for in a scheme that pays compensation regardless of who is at fault.

The legislature did not intend to create, nor did it in fact create, a no-fault liability scheme for police officers, physicians or other third parties who might commit faults subsequently to automobile accidents and thereby cause separate injuries. The

interpretation of the Act should not therefore produce such a result. It is up to the legislature, not the courts, to expand the coverage of the Act to other types of risks, since the application of the general law of civil liability cannot be excluded without a clear intervention on the legislature’s part. The scope of s. 83.57 of the Act is therefore limited by the wording of the section: although the Act must be interpreted liberally, this should not make it possible to extrapolate and to extend the immunity it confers to everything that relates in any way to an automobile accident.

Therefore, s. 83.57 of the Act does not bar the action in damages. Moreover, the fact that compensation has been claimed and received from the SAAQ by the victims cannot be interpreted as a waiver of any civil action. The concept of waiver does not apply within the framework of the Act. The effect of s. 83.57 of the Act is to establish a single, complete compensation scheme for the injuries the Act covers.

It is the fact that damage is characterized as “bodily injury” that gives rise to a right to compensation: if the bodily injury was suffered in an accident, then the Act applies and s. 83.57 bars any action is respect of that injury in a court of civil jurisdiction. This

means that an individual never has both a right to compensation under the Act and a right to take the person allegedly responsible for hisor her injury to court. In short, it is impossible to waive a right that one does not have. Cases Cited By Wagner J. Applied: Westmount (City) v. Rossy, 2012 SCC 30, [2012] 2 S.C.R. 136; Productions Pram inc. v. Lemay, (QC CA), [1992] R.J.Q. 1738; not followed: Badeaux v. Corp. intermunicipale de transport de la Rive-sud de Québec, [1986] J.Q. no 473 (QL); Morin v. Québec (Ville de), 2009 QCCS 3202; C.S. v.

Québec (Commission des affaires sociales), [1996] AZ-51214610;Assurance Automobile — 68, [1997] C.A.S. 212; distinguished: Law, Union & Rock Insurance Co. v. Moore’s Taxi Ltd., (SCC), [1960] S.C.R. 80; St-Jean v. Mercier, S.C.C., No. 27515, January 15, 2001 (Bulletin of Proceedings, January 19, 2001, pp. 94-95); St-Jean v. Mercier, [1998] J.Q. no 234 (QL), aff’d (QC CA), [1999] R.J.Q. 1658, aff’d 2002 SCC 15,[2002] 1 S.C.R. 491; Mitchell v. Rahman, 2002 MBCA 19, 163 Man. R. (2d) 87; Amos v. Insurance Corp. of British Columbia, (SCC), [1995] 3 S.C.R. 405; referred to: Canada (Attorney General) v.

Confédération des syndicats nationaux, 2014 SCC49, [2014] 2 S.C.R. 477; Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., (SCC),[1996] 2 S.C.R. 345; R.C. v. Québec (Société de l’assurance automobile), 2007 QCTAQ 08233, ; G.P.P. v. Québec(Société de l’assurance automobile), ; J.W. v. Québec (Société de l’assurance automobile), 1998 LNQCTAQ 1230(QL); F.C. v. Québec (Société de l’assurance automobile), 2008 QCTAQ 10851, , aff’d 2009 QCTAQ 09478, ; D.H. v. Québec (Société de l’assurance automobile), 2011 QCTAQ 4101, 2011 LNQCTAQ 110 (QL); M.C. v.

Québec(Société de l’assurance automobile), 2010 QCTAQ 09161, ; S.F. v. Québec (Société de l’assurance automobile),2011 QCTAQ 08760, ; Québec (Société de l’assurance automobile) v. Viger, (QC CA), [2000]R.J.Q. 2209; Chalifoux v. Québec (Commission des affaires sociales), ; By Côté J. (dissenting) Canada (Attorney General) v. Confédération des syndicats nationaux, 2014 SCC 49, [2014] 2 S.C.R. 477; Westmount (City)v. Rossy, 2012 SCC 30, [2012] 2 S.C.R. 136; Gray v. Cotic, [1983] S.C.R. 2; Productions Pram inc. v. Lemay, (QCCA), [1992] R.J.Q. 1738; Greenshields v.

The Queen, (SCC), [1958] S.C.R. 216; Canada (Attorney General) v. Xuan, (FCA), [1994] 2 F.C. 348; Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306; JabelImage Concepts Inc. v. Minister of National Revenue (2000), (FCA), 257 N.R. 193; Agraira v. Canada (PublicSafety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; R. v. Zeolkowski, (SCC), [1989] 1 S.C.R.1378; Harris v. Cité de Verdun, [1979] C.S. 690; Cordero v. British Leyland Motors Canada Ltd., [1980] C.S. 899; Lapalme v. MarelucLtée, [1983] C.S. 646; Periard v.

Ville de Sept-Îles, [1985] I.L.R. ¶1-1963; Commission des accidents de travail du Quebec, Desfonds etLarocque v. Girard (1988), 18 Q.A.C. 110; Neveu v. Compagnie d’assurance Victoria du Canada (1989), 30 Q.A.C. 97; Belley v.Tessier-Villeneuve, [1990] R.R.A. 959; Langlois v. Dagenais, [1992] R.R.A. 489; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Mitchell v. Rahman, 2002 MBCA19, 163 Man. R. (2d) 87; G.D. v. Centre de santé et des services sociaux A, 2008 QCCA 663, [2008] R.J.D.T. 663; St-Jean v.

Mercier,2002 SCC 15, [2002] 1 S.C.R. 491. Statutes and Regulations Cited Act respecting industrial accidents and occupational diseases, CQLR, c. A-3.001, ss. 438 to 447. Act respecting the Société de l’assurance automobile du Québec, CQLR, c. S-11.011, s. 2. Automobile Insurance Act, CQLR, c. A-25, ss. 1, 2, 5, 6, 7, 12.1, 73, 83.44, 83.44.1, 83.57, 83.59. Bill 67, Automobile Insurance Act, 2nd Sess., 31st Parl., 1977, s. 66 (first reading). Bill 67, Automobile Insurance Act, 2nd Sess., 31st Parl., 1977 (assented to December 22, 1977). Bill 113,

An Act to amend the Automobile Insurance Act, 2nd Sess., 34th Parl., 1993. Civil Code of Québec. Code of Civil Procedure, CQLR, c. C-25, art. 165(4), 452. Highway Safety Code, CQLR, c. C-24.2, s. 605.

Interpretation Act, CQLR, c. I-16, ss. 41, 41.1, 49, 50. Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215, s. 73. Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83, art. 79 [am. 335/84, Sch., s. 19; am. 379/85, Sch.,s. 31]. Authors Cited Baudouin, Jean-Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile, 8e éd. Cowansville, Que.: Yvon Blais, 2014. Belleau, Claude. L’assurance automobile sans égard à la responsabilité: historique et bilan de l’expérience québécoise. Sainte-Foy,Que.: Publications du Québec, 1998.

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Loi sur l’assurance automobile ” (1998-99), 29 R.D.U.S. 245. APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, St-Pierre and Gagnon JJ.A.), 2015 QCCA 225 , 18 C.C.L.T. (4th) 42, [2015] AZ-51147750, [2015] J.Q. n o 664 (QL), 2015 CarswellQue 646 (WL Can.) , setting aside a decision of Roy J., 2013 QCCS 4866 , [2013] AZ-51008567, [2013] J.Q. n o 13389 (QL), 2013 CarswellQue 10187 (WL Can.). Appeal dismissed, Côté J. dissenting.

APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, St-Pierre and Gagnon JJ.A.), 2015 QCCA 224 , [2015] AZ-51147749, [2015] J.Q. n o 662 (QL), 2015 CarswellQue 647 (WL Can.), affirming a decision of Mayer J., 2013 QCCS 1888 , [2013] AZ-50962709, [2013] J.Q. n o 4584 (QL), 2013 CarswellQue 4255 (WL Can.). Appeal dismissed, Côté J. dissenting. Jean-Pierre Ménard , Marie-Ève Martineau and Karine Tremblay , for the appellants Thérèse Godbout, Louis Godbout and Iris Godbout. Marc Dufour and David Emmanuel Roberge , for the respondent Jean-Maurice Pagé.

Mark Phillips and Émilie Jutras , for the respondents Anick Dulong, Moreno Morelli, Martin Lavigne, Jacques Toueg and Hôpital du Sacré-Cœur de Montréal. Andrew Kliger and Leonard Kliger , for the appellant Gilles Gargantiel . Louise Comtois and Alexandra Hodder , for the respondent/intervener the Attorney General of Quebec. Julien Gaudet-Lachapelle and Manon Paquin , for the intervener Société de l’assurance automobile du Québec. English version of the judgment of McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon and Brown JJ. delivered by Wagner J. — I.

Overview [ 1 ] The Automobile Insurance Act , CQLR, c. A-25 (“Act”), came into force in 1978. It changed an entire aspect of the scheme of civil liability in Quebec law by creating new rules applicable to automobile-related accidents, including to the compensation payable for both property damage and bodily injury that result from them. [ 2 ] Since the Act was enacted, the courts have had many occasions to rule on the scope of those rules.

[3] These appeals represent an opportunity for this Court to review the principles that govern the application of theAct, and in particular those with respect to compensation for bodily injury in the case of faults committed by third parties. [4] The basic question in the appeals is whether a person injured in an automobile accident who is eligible to receivecompensation under the Act but whose condition is aggravated as a result of a fault committed by a third party can bring a civil actionagainst the third party to seek compensation for bodily injury resulting from that subsequent fault.

In other words, the Court mustdetermine the scope of the no-fault scheme under which compensation is paid in respect of bodily injury “suffered . . . in an accident”within the meaning of the Act. It must at the same time rule on the corollary to that scheme, namely the prohibition against any civilaction where compensation is paid under the Act in respect of the injury in question (s. 83.57 of the Act). [5] The appeals concern events that forever altered the lives of the appellants Thérèse Godbout and Gilles Gargantiel,who were seriously injured in automobile accidents.

Insofar as the alleged facts are assumed to be true, these two appellants subsequentlysuffered additional injuries because of faults attributable to third parties, namely the respondents. These third parties were, inMs. Godbout’s case, the medical staff who treated the injuries she had suffered in the accident and, in Mr. Gargantiel’s case, Sûreté duQuébec (“SQ”) officers who were allegedly negligent in searching for the crashed vehicle he was in. Ms. Godbout and Mr. Gargantielhave since been compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (“SAAQ”) under theAct.

However, they are seeking reparation for the injuries caused by the respondents’ faults. The parties are thus asking the Court todetermine whether the appellants can, despite having been paid compensation under the Act, bring actions against the respondents forsubsequent faults that caused them bodily injury.

The question arises because the Act provides that, where bodily injury was “suffered. . . in an accident”, that is, “any event in which damage is caused by an automobile”, the compensation the victim can receive is limitedexclusively to amounts paid by the SAAQ regardless of who is at fault (ss. 1, 2, 5 and 83.57 of the Act). [6] For the reasons that follow, I am of the view that the additional bodily injury suffered by Ms. Godbout and byMr. Gargantiel, for which they are seeking reparation from the respondents, is an injury “suffered . . . in an accident” within the meaningof the Act.

As a result, they are entitled to the compensation provided for in the Act but are not entitled to bring further civil liabilityproceedings against the respondents in order to obtain additional or complementary compensation. I would therefore dismiss the appeals. II. Facts [7] The facts in the first appeal date back to January 10, 1999, when Ms. Godbout was seriously injured in anautomobile accident. She was taken to and treated at Hôpital du Sacré-Cœur de Montréal, where the respondents practised, one as anorthopaedic surgeon and the others as orthopaedic surgery residents.

Fractures of both femurs, both tibias and the right tibial plateau werediagnosed and Ms. Godbout was operated on. A few days later, advanced compartment syndrome was observed together with musclecompartment necrosis. On February 20, 1999, Ms. Godbout had both legs amputated at the knees. In January 2002, she and the otherappellants in her case filed a motion to institute proceedings.

In those proceedings, she alleged that the respondents had failed to act inaccordance with good practice in treating her and had thereby caused separate injuries that had not been suffered in the automobileaccident but had instead been caused by the respondents’ faults. More specifically, Ms. Godbout argued that they had committed faultsin diagnosis and in medical treatment and follow-up in her case and that those faults were the direct causes of the amputation of her legsand of a permanent neurological impairment of her right hand.

Even though she had received compensation from the SAAQ after theautomobile accident for the whole of her bodily injury, she argued that she was entitled to additional compensation for the separateinjuries resulting from the respondents’ faults. Her younger brother, Louis Godbout, and her only daughter, Iris Godbout, also claimeddamages from the medical staff for injuries caused to them by the same faults. [8] On October 18, 2009, the appellant in the second appeal, Mr. Gargantiel, lost control of his automobile and wasthen lying unconscious in a ditch between the road and a railway track.

Even though the OnStar company, having locatedMr. Gargantiel’s vehicle by satellite, contacted the SQ’s call management centre several times and provided it with the GPS coordinatesof the crashed vehicle, SQ officers were unable to locate it and decided to give up the search. More than 40 hours after the accident, theautomobile was found by chance by a railway worker near the location indicated by the GPS coordinates OnStar had provided to the SQ.Mr. Gargantiel was found nearby with severe hypothermia and other serious bodily injuries. Part of his right leg had to be amputated as aresult of frostbite.

Following the accident, he received compensation from the SAAQ for the whole of his bodily injury. He nonethelessclaimed damages from the Attorney General of Quebec (“AGQ”) for injuries linked to the negligence of the SQ officers who hadparticipated in the search for his car, namely the partial amputation of his right leg and the resulting physical and psychological damage. [9] It is common ground that the question whether the actions brought by the appellants against the respondents in thetwo appeals are barred must be decided first having regard to the Act’s provisions.

As a result, the alleged facts with regard to theaccidents, injuries and faults are assumed to be true. III. Judicial History A. Godbout

(1) Superior Court, 2013 QCCS 4866 [10] Roy J. of the Superior Court held that the appellants had a right to sue the respondents, provided that they couldprove the existence of a separate fault and a separate injury. In reaching this conclusion, Roy J. considered herself bound by the wordingof the question posed jointly by the parties, which read as follows: [translation] “If the Court were to conclude that the defendantscommitted a medical fault while the plaintiff was hospitalized subsequently to the automobile accident and that that medical fault causedseparate injuries, would

section 83.57 of Quebec’s Automobile Insurance Act bar the plaintiffs’ action in damages?” It was therefore thatspecific question that Roy J. was answering hypothetically. Roy J. had to rule on this point without having heard any evidence, and shestressed, in addition, how difficult it would be for the appellants, if allowed to do so, to prove the existence of a separate fault and aninjury separate from the one “caused by the accident” (para. 43 ).

She added that the fact that the appellants had receivedcompensation from the SAAQ did not in itself mean that they had waived their right to sue the respondents in civil liability. [11] Roy J. began by analyzing the relevant provisions of the Act and found no intention on the legislature’s part to

exclude from the general law of civil liability cases in which a separate injury is caused by a fault committed by a third partysubsequently to an automobile accident. After reviewing the case law, she noted that there are no cases either on the possibility of suinga third party who was responsible for a separate fault that caused a separate injury or on the scope of the prohibition against civil actionsset out in s. 83.57 of the Act.

In the absence of any final judgment to the effect that a third party cannot be sued for a fault and an injuryseparate from those committed and suffered at the time of the automobile accident, Roy J. held that s. 83.57 of the Act does not precludesuch an action.

(2) Court of Appeal, 2015 QCCA 225 [12] St-Pierre J.A., who wrote the unanimous reasons of the Quebec Court of Appeal, allowed the appeal and set asidethe trial judge’s decision. She concluded that s. 83.57 of the Act barred the appellants’ action in damages regardless of whether asubsequent medical fault and a separate injury caused by that fault were to be proved.

In her opinion, this conclusion, which shedescribed as plausible and logical, was preferable to accepting a breach in the no-fault compensation scheme provided for in the Act.Such a breach could weaken the scheme and the protection it confers on victims of automobile accidents, as the SAAQ might then refuseto compensate victims who have received medical care if that care aggravated or may have aggravated their bodily injury. [13] Before arriving at that conclusion, St-Pierre J.A. summarized the legal principles that apply in this area of the law,stressing that, [translation] “if importing a concept of causation originating in the law of civil liability into the [Act] could have effects orconsequences that might frustrate its primary purpose, that cannot be proposed, tolerated or accepted” (para. 51 ).

With this inmind, she was of the opinion that the trial judge had erred in applying the intervening cause (“novus actus interveniens”) doctrine to holdthat s. 83.57 of the Act did not apply. St-Pierre J.A. explained that the conditions for applying that doctrine were not met even though thealleged facts were assumed to be true. She noted that the doctrine “applies only if two essential criteria are met ― (1) a total break in thechain of causation and (2) the establishment of a new chain based on

an act that is not directly related to the initial fault” (para. 60). InSt-Pierre J.A.’s view, the alleged facts did not support a finding that there was no longer any link between the automobile accident andthe injury in question or that a new link had come to exist because of inadequate medical treatment unrelated to the accident. In short,although the medical care at issue may have resulted in a medical fault, it had been provided in connection with the automobile accidentfor the purpose of treating the injury suffered in that accident.

At issue in this case is, at most, an “aggravated injury” or “contributoryfault”, not a “separate” injury.

Yet such concepts are irrelevant in the context of a no-fault compensation scheme such as that of the Act.Any automobile accident victim is thus compensated under the Act for the whole of his or her bodily injury and is barred from bringingan action in civil liability against a third party if that party has in fact committed a fault. [14] St-Pierre J.A. also commented on the subject of waiver of the right to bring an action, although she acknowledgedthat it might not be necessary to rule on this ground of appeal.

In any event, she concluded that where compensation payments areclaimed, received and accepted, as Ms. Godbout did, there is a rebuttable presumption that she and the SAAQ recognize that thecompensation scheme under the Act applies and that any other action is accordingly barred by law. B. Gargantiel

(1) Superior Court, 2013 QCCS 1888 [15] Mayer J. of the Superior Court granted the AGQ’s motion to dismiss, finding that causation is given a large andliberal

interpretation in the context of the Act and that the intervening cause doctrine was therefore not relevant.

In his view, this findingflowed in particular from a number of decisions of the Administrative Tribunal of Québec (“ATQ”), which he summarized as follows:[translation] “. . . the SAAQ must provide compensation, in accordance with the principles set out in the Act, for any bodily injurysuffered by a victim of an automobile accident either in the accident itself or while the injuries suffered in the accident are healing,regardless of whether the injury in question results directly from the original injuries, from the treatment received, from anycomplications that may result from that treatment, from a fortuitous event or even from the fault of a third party who is involved in theabove” (para. 54; see also para. 68 to the same effect ).

Mayer J. noted that when the Act applies, it operates exclusively, evenwhere a separate fault can be attributed to a third party. In this case, because the alleged fault of the SQ officers had been committed onlyafter Mr. Gargantiel’s automobile accident, the whole of the resulting injury was covered by the Act and the prohibition against civilactions applied. In Mayer J.’s opinion, Mr. Gargantiel’s acceptance of the compensation paid by the SAAQ for the whole of his bodilyinjury entailed a waiver of any action against any person in respect of any injury that resulted from the automobile accident.

(2) Court of Appeal, 2015 QCCA 224 [16] The Court of Appeal, per St-Pierre J.A. in this case, too, dismissed the appeal on the basis that Mr. Gargantiel’s twogrounds of appeal were without merit. On the first ground, which had to do with the analysis of causation and of the application of theintervening cause doctrine, St-Pierre J.A. disagreed with Mr. Gargantiel’s arguments for the following three reasons: 1. Intervening cause is linked to the traditional civil law approach to causation, which must be disregarded when applying theprovisions of the Act; 2.

Even if the intervening cause doctrine were considered, the facts of the case would, in any event, not lead to the resultadvocated by Mr. Gargantiel; 3. The amputation and the injuries related to it clearly constituted bodily injury for which compensation could be paid underthe Act, so that compensation stood in lieu of all rights and remedies. [17] St-Pierre J.A. reviewed the facts of Gargantiel from the standpoint of causation. She noted that, although the injurysuffered by Mr.

Gargantiel may have been aggravated by the SQ officers’ fault, it could not be said that that injury was unrelated to theautomobile accident: the injury he suffered resulted from a combination ― or continuum ― of events that were directly related to theaccident and were inseparable from one another. St-Pierre J.A. accordingly concluded that the frostbite and subsequent amputationconstituted an injury [translation] “suffered in the accident” within the meaning of the Act (para. 41 ).

[ 18 ] On the second ground of appeal with respect to waiver of the right to seek any remedy other than a claim for compensation under the Act , given that the compensation payments already made by the SAAQ had been accepted, St-Pierre J.A. applied the same presumption of waiver of the right to sue as in Godbout . IV. Issues [ 19 ] The main issue in these appeals is whether the Court of Appeal erred in law in concluding that s. 83.57 of the Act bars the actions in damages brought by Ms. Godbout and by Mr.

Gargantiel, who allege that the parties against whom they brought those actions had committed faults that had caused them “separate” bodily injury. Ultimately, what must be determined is whether that bodily injury was “suffered . . . in an accident”, that is, in an “event in which damage is caused by an automobile”, within the meaning of the Act. [ 20 ] The appellants submit that the Court of Appeal altered the issue before it, as St-Pierre J.A. referred in her analysis to an [ translation ] “aggravated” injury rather than to a “separate” injury. The substance of that characterization was argued by the parties.

In my view, the characterization is not central to the resolution of the main issue given the nature of the appropriate causal link in the context of the application of the Act. Regardless of whether the injury is characterized as aggravated or separate, it has a plausible, logical and sufficiently close link to an automobile accident and is accordingly covered by the compensation scheme provided for in the Act .

In any event, although, at the preliminary stage, “the facts alleged in the motion must be assumed to be true . . . the court is not bound by the legal characterization of those facts” ( Canada (Attorney General) v. Confédération des syndicats nationaux , 2014 SCC 49 , [2014] 2 S.C.R. 477, at para. 20 (emphasis deleted; citations omitted)). [ 21 ] An alternative issue in these appeals is whether the acceptance of the compensation payments received from the SAAQ bars any claim for damages from anyone in addition to or in lieu of that compensation.

In principle, this issue need not be resolved in order to decide the appeals. Nevertheless, in view of the Court of Appeal’s comments regarding the existence of a “presumption of waiver”, this Court must clarify the legal reasoning that applies in this case. V. Analysis A. Was the Bodily Injury “Suffered . . . in an Accident”?

(1) Causal Link Under the Act [ 22 ] The first paragraph of s. 83.57 of the Act reads as follows: Compensation under this title stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice. [ 23 ] To determine the scope of this section, it is necessary to consider the framework of the Act , and in particular the

definitions set out in it. The term “bodily injury” is defined in the Act as “any physical or mental injury, including death, suffered by a victim in an accident, and any damage to the clothing worn by a victim” ( s. 2 ). An “accident” is defined as “any event in which damage is caused by an automobile” ( s. 1 ).

The Act also defines “damage caused by an automobile” as follows: . . . any damage caused by an automobile, by the use thereof or by the load carried in or on an automobile, including damage caused by a trailer used with an automobile, but excluding damage caused by the autonomous act of an animal that is part of the load and injury or damage caused to a person or property by reason of an action performed by that person in connection with the maintenance, repair, alteration or improvement of an automobile; [ 24 ] In addition, where there is a doubt as to whether bodily injuries were caused by an automobile, s. 12.1 of the Act provides that the SAAQ must be impleaded.

This

section is not intended to entitle an automobile accident victim to bring a civil action against a third party in respect of an injury that is covered by the Act, but concerns the determination of whether the causal link needed for the Act to apply exists in a given case. [ 25 ] Thus, where damage is caused by an automobile, there is an accident within the meaning of the Act . Compensation is then paid by the SAAQ for bodily injury suffered in the accident “regardless of who is at fault” ( s. 5 ).

Moreover, such compensation “stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice” (s. 83.57 para. 1). This means that the Act provides for full compensation for bodily injury that falls within its ambit and accordingly bars any action in civil liability when the compensation provided for in the Act has been received. [ 26 ] Furthermore, as is the practice in legislative drafting, the

definitions in the Act are drafted in the present tense. One cannot on this basis draw any conclusions with respect to the temporal scope of the Act in order to limit, for example, the definition of an automobile accident (P.-A. Côté, with the collaboration of S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at pp. 80-81; L.-P. Pigeon, Drafting and Interpreting Legislation (1988), at p. 14). [ 27 ] The appeals actually raise the following question: Were the injuries suffered by Ms. Godbout and by Mr. Gargantiel “suffered . . . in an accident” within the meaning of the Act (“ causé dans un accident ” in the French version of the Act)?

The difficulty in construing the word “ causé ” (caused) used in the French version of the Act in the context of the specific scheme of the Act stems mainly from its evocation of conceptions of causation that apply in the law of civil liability under the Civil Code of Québec . If the answer to this question is yes, which it will be in these appeals, then there is no need to consider the faults committed by the third parties who were involved in the accidents or in the injuries that resulted from those faults.

In such a case, the victim can turn only to the SAAQ for compensation for the whole of the bodily injury “suffered . . . in an [automobile] accident”. [ 28 ] In light of the context of the enactment of the Act and the legislature’s intent, on the one hand, and the principles applicable to the

interpretation of the Act , on the other, I am of the opinion that the appropriate causal link in the context of the compensation scheme established by the Act cannot be the same as or be derived from the one that prevails in the general law of civil

liability: it is sui generis in nature. It must be given a large and liberal

interpretation that will further the Act’s purpose, although thatinterpretation must also be plausible and logical. Whether such a link exists is primarily a question of logic and fact, and depends on thecircumstances of each case. The appropriate causal link in the context of the Act is of course not as strong as the one that applies in thelaw of civil liability. We must therefore refrain from borrowing from concepts associated with the traditional form of causality, such asthe distinction between the occasion and cause of the injury.

For the purposes of the Act, it will be enough to establish a sufficientlyclose link between the bodily injury and the automobile accident; in contrast, a fortuitous connection will not suffice. Although thiscausal link has been expressed in different ways in the case law, it has been applied the same way in most of the judicial and tribunaldecisions rendered since the Act came into force in 1978.

(2) Context of the Enactment of the Act, and the Legislative Intent [29] The Act was enacted nearly 40 years ago to address the serious inequities then occurring in the compensation ofvictims for bodily injuries caused by automobiles. Those inequities resulted from the application of the fault-based principles of thegeneral law of civil liability, which required victims to engage in lengthy and costly court proceedings in order to assert their right toreparation. Moreover, reparation for injuries was illusory in many cases, inter alia because the person at fault was insolvent or lackedadequate insurance coverage.

Being of the view that automobile accidents were a “societal” risk that should be subject to exceptionalrules, the legislature replaced the general law scheme then in force in Quebec with a no-fault compensation scheme. Its purpose in doingso was to simplify and speed up the compensation process and to guarantee that as many victims as possible would receive compensationby establishing a viable public scheme that spared them the considerable uncertainties of court proceedings.

This was a societal choicethat reflected a social compromise by which all drivers were to collectively assume the financial consequences of bodily injuries causedby automobile accidents. Any civil action with respect to such injuries has been prohibited since that time (see C. Belleau, L’assuranceautomobile sans égard à la responsabilité: historique et bilan de l’expérience québécoise (1998), at p. 58; D. Gardner, “L’interprétationde la portée de la

Loi sur l’assurance automobile: un éternel recommencement” (2011), 52 C. de D. 167, at pp. 168-69 and 195;J.

Perreault, Assurance automobile au Québec: L’indemnisation du préjudice corporel des victimes d’accident d’automobile (3rd ed.2010), at pp. 4-8). [30] As the legislature intended, an automobile accident victim who suffers bodily injury in the accident and as a result ofevents subsequent to the accident — related, for example, to care or treatment provided after the accident or to the acts of first responders(police officers, ambulance attendants, etc.) at the scene of the accident — need not identify someone who has committed a fault, isguilty or can be blamed for the aggravation or a “separate” part of his or her injury.

The purpose of the Act is to ensure that the victimneed not engage in costly and uncertain court proceedings in order to obtain compensation for the whole of his or her injury. [31] The appellants in Godbout argue that the Court of Appeal’s decision [translation] “deprived a victim of the right tobring an action in damages against a physician or a hospital after the victim was not treated in accordance with good practice where thatmedical or hospital fault caused injuries separate from the ones suffered in the automobile accident” (A.F. Godbout, at para. 5).

They addthat, [translation] “in its judgment, the Court of Appeal confers immunity from liability on physicians and health care institutions thattreat automobile accident victims” (A.F. Godbout, at para. 13). [32] It is true that the Act ultimately confers civil immunity on everyone in respect of injuries suffered in automobileaccidents (s. 5). This immunity applies with no exceptions, which means that it applies to physicians and health care institutions. Thus,unlike in the case of s. 605 of the Highway Safety Code, CQLR, c.

C-24.2, which provides that “[n]o action in damages may be broughtagainst a health care professional”, it was unnecessary for the legislature to expressly identify those to whom the immunity is granted. Inany event, the granting of an immunity from civil actions is a result the legislature desired, and it has in fact enacted provisions to thesame effect in the past. Let me explain. [33] In Quebec, there are, in addition to the principles of the general law of civil liability, several public no-faultcompensation schemes that apply to the victims of certain types of accidents or events.

These schemes, which limit the possibility ofbringing general law civil liability actions, thus create a kind of civil immunity in certain cases in favour of parties who would otherwisehave to defend such actions. [34] For example, in 1985, the Quebec legislature introduced a special scheme to compensate workers to whom industrialaccidents happen, or who contract occupational diseases, by enacting the Act respecting industrial accidents and occupational diseases,CQLR, c. A-3.001.

As in the case of the Act, the establishment of that scheme was intended to remedy the uncertainties inherent in civilliability actions by ensuring that victims can obtain compensation quickly, and at a reduced cost to themselves. Injured workers mustsubmit claims to the Commission des normes, de l’équité, de la santé et de la sécurité du travail that was established by that Act. Withsome exceptions, workers who are entitled to benefits under the Act respecting industrial accidents and occupational diseases may notapply to courts of law for compensation for injuries suffered as a result of industrial accidents.

That Act confers an almost absolute civilimmunity on the employer of a worker who is the victim of an industrial accident that has resulted in an employment injury, and a partialimmunity on co-workers or mandataries (ss. 438 to 447). [35] This brief comparison with the scheme of the Act respecting industrial accidents and occupational diseases showsthat the scheme established by the Act is not an exceptional one: indeed, there are other special compensation schemes that grant, in thepublic interest, a form of immunity from civil proceedings in the context of their application.

Like the Act, the Act respecting industrialaccidents and occupational diseases “expresses a well thought-out social compromise between various contradictory forces” (BéliveauSt-Jacques v. Fédération des employées et employés de services publics inc., (SCC), [1996] 2 S.C.R. 345, at para. 114).Such legislation “establishes a compensation system that is based on the principles of insurance and no-fault collective liability, the mainpurpose of which is compensation and thus a form of final liquidation of remedies” (Béliveau St-Jacques, at para. 114).

Full effect mustbe given to the immunity it confers in order to ensure that these special schemes remain relevant and sustainable, as the legislaturewishes. Furthermore, such “immunity” does not assist those who are at fault insofar as they remain accountable for their actions to thevictims under the criminal law or to their professional orders under disciplinary law.

(3) Principles Applicable to the

Interpretation of the Act

(

a) Rossy and Pram [36] This Court considered the principles applicable to the

interpretation of the Act in Westmount (City) v. Rossy, 2012SCC 30, [2012] 2 S.C.R. 136 (“Rossy”), a case concerning a man who had died when a tree fell on the automobile he was driving. InRossy, LeBel J. essentially restated, with approval, the principles enunciated 20 years earlier in Productions Pram inc. v. Lemay, (QC CA), [1992] R.J.Q. 1738 (C.A.) (“Pram”).

In Pram, Baudouin J.A. had had to determine whether a collision between alow-flying aircraft and a motor vehicle was an automobile accident for which compensation could be claimed under the Act by apassenger in the vehicle, who had been seriously injured. [37] Rossy and Pram were primarily concerned with identifying the purpose of the Act, which [translation] “is essentiallyto ensure that victims of automobile accidents are compensated for their bodily injuries regardless of who is at fault.

It also removes theassessment of damages from the courts and entrusts it to the [SAAQ]” (Rossy, at para. 19, quoting Pram, at p. 1740). [38] In Rossy, LeBel J. stated that, “[i]n interpreting the provisions at issue, the Court must bear in mind the objectives ofthe Act, the broad reach it was intended to have, and the context in which it was enacted” (para. 19). He noted that “the Act is consideredremedial legislation” and that, “[t]herefore, it must be interpreted in accordance with s. 41 of the

Interpretation Act, R.S.Q., c. I-16”,which means that “[i]t must be given a ‘large and liberal’

interpretation to ensure that its purpose is attained” (Rossy, at para. 21; see alsoD. Gardner, at p. 195; and R. Tétrault, “L’appréciation du lien de causalité entre le préjudice corporel et le fait accidentel dans le cadrede la

Loi sur l’assurance automobile” (1998-99), 29 R.D.U.S. 245, at p. 316). This large and liberal

interpretation based on the purposeof the Act has limits, however. It must still be plausible and logical having regard to the wording of the Act (Rossy, at para. 26; Pram, atp. 1741). [39] The

interpretation of the word “caused” and thus the analysis of the appropriate causal link in the context of the Acttherefore call for a large and liberal approach. Referring once again to Pram, LeBel J. added that, “in determining whether the Actapplies, a court must not look for a traditional causal link between fault and damage as is routinely done in delictual or quasi-delictualcivil liability cases” (Rossy, at para. 28). In Pram, Baudouin J.A. had formulated three fundamental rules for identifying the causal linkthat is required in order for the Act to apply.

These rules were quoted with approval in Rossy: [translation] The first is that the causal link required by the act is sui generis, and that in characterizing that link, it isunhelpful to rigidly adhere to any of the traditional doctrinal constructs of causa causans, causa proxima, adequate causation, proximatecausation and equivalence of conditions. Those theories are very helpful in the general law, particularly where the judge must assess thecausal relationship between fault and damage. They are not helpful here. . . .

The second is that the type of causality that must apply to the case cannot be determined without regard for the purposesof the act, which, it should not be forgotten, is remedial social legislation. The third is that it is important to go back to the legislation itself.

The act mentions damage caused not only by anautomobile (which might suggest that the automobile must play an active role), but also by a load carried in or on an automobile or “bythe use thereof”. [Emphasis in original . . . .] (Rossy, at para. 25, quoting Pram, at pp. 1741-42.) [40] In Rossy, LeBel J. also reiterated the following principles with respect to causation in the context of the Act, whichBaudouin J.A. had drawn from the case law and listed in Pram: • The identification of a causal link remains a matter of logic and fact, and depends on the circumstances of each case. • For the act to apply, it is not necessary for the vehicle to have entered directly into physical contact with the victim. • It is not necessary for the vehicle to have been in motion when the damage occurred.

Whether the vehicle’s role was active orpassive is not determinative of causation. • Whether the act that caused the damage was voluntary or involuntary is of no consequence. • The mere use of the vehicle, that is, its use, handling and operation, is sufficient for the act to apply. The meaning of “damagecaused by the use of the automobile” is broader than that of “damage caused by the automobile”. • The damage need not have been produced by the vehicle directly.

It is enough that the damage occur in the general context of theuse of the vehicle . . . . (Rossy, at para. 27, citing Pram, at p. 1742.) [41] LeBel J. ultimately endorsed in Rossy the principles that had previously been enunciated in Pram. He concluded that“there is no need to resort to traditional notions of causation, since the Act must be construed broadly and liberally in light of itsobjectives, the remedial and social nature of the scheme and the wording of the Act itself” (Rossy, at para. 26; see also para. 28 andPram, at p. 1741).

The Court of Appeal had added the following in Pram: [translation] “However, this construction must remainplausible and logical having regard to the wording of the [A]ct” (p. 1741). With some exceptions, the courts have applied theseprinciples in the majority of cases (see J.-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), atpara. 1-1208). It would therefore be contrary to these principles to hold that s. 83.57 of the Act must be interpreted narrowly because itdeviates from the general law of civil liability. (

b) Decisions of the ATQ

[42] In accordance with the principles from Pram and Rossy, a number of decision makers of the administrative tribunalthat hears appeals with respect to compensation paid by the SAAQ under the Act have interpreted the causation test broadly and liberallyand have found that there is no break in the chain of causation between an accident and bodily injury even where there has been asubsequent fault on the part of a third party, as can be seen from the following comment from R.C. v.

Québec (Société de l’assuranceautomobile), 2007 QCTAQ 08233, : [translation] The decisions of the CAS [Commission des affaires sociales, predecessor of the ATQ] and the ATQ[Administrative Tribunal of Québec] over the last 15 years have been almost unanimous.

A connection between an initial accident andinjuries caused by a new traumatic event must be considered to be “direct” if the new injuries are suffered because of original injuriesthat have not yet stabilized. [Footnote omitted; emphasis deleted; para. 43.] [43] The stabilization (consolidation) of injuries is a concept from the field of workers’ compensation that the ATQ hasused in applying the Act. Roy J. discussed it in her reasons in Godbout (trial judge’s reasons, at paras. 31-34).

What it means is thatwhere the condition of an automobile accident victim is aggravated while his or her injuries are still being treated and have not yet healedor stabilized, that aggravation generally has a sufficient causal link to the accident to qualify for full compensation from the SAAQ. [44] The stabilization concept is referred to in a large number of cases, which evinces in fact and in law a liberalapplication of the Act. For example, in G.P.P. v.

Québec (Société de l’assurance automobile), (ATQ), it was allegedthat a medical fault had been committed in the treatment of injuries caused by an automobile accident. Although the ATQ applied thedirect causation test, which on the face of it is part of the general law of civil liability, it nonetheless concluded that what are consideredto be [translation] “‘direct’ include complications and other accidents that result either from the treatments or from injuries suffered whilethe victim is still being treated or his or her condition has not yet stabilized” (para. 6). [45] In J.W. v.

Québec (Société de l’assurance automobile), 1998 LNQCTAQ 1230 (QL), an automobile accident victimhad contracted hepatitis C from blood transfusions that had been performed while he was being operated on to treat injuries resultingfrom the accident. The ATQ held that there had been no [translation] “break in the continuity of events between a cause and its effect”(para. 11) and that the causal link between the accident and the blood transfusions remained direct, which meant that the victim waseligible to receive compensation under the Act for the whole of his bodily injury. [46] In F.C. v.

Québec (Société de l’assurance automobile), 2008 QCTAQ 10851, , review denied in2009 QCTAQ 09478, , the ATQ found that a psychological injury resulting from harassment of an automobileaccident victim by an employee involved in her rehabilitation constituted, under the Act, bodily injury caused by an automobile. [47] There are other cases in which the ATQ held that the [translation] “progression” of an injury, or the “aggravation” or“deterioration” of a pre-existing condition after an accident, was covered by the Act if the accident was shown to be its cause: D.H. v.Québec (Société de l’assurance automobile), 2011 QCTAQ 4101, 2011 LNQCTAQ 110 (QL); M.C. v.

Québec (Société de l’assuranceautomobile), 2010 QCTAQ 09161, ; S.F. v. Québec (Société de l’assurance automobile), 2011 QCTAQ 08760, . [48] These few examples show that in interpreting and applying the Act, the ATQ has adopted a large and liberalinterpretation of causation to enable automobile accident victims to obtain full compensation. Although the ATQ has frequently referredto the test of a “direct” link, such a test could lead to confusion with the principles of the general law of civil liability.

It is my view thatthe test that must be applied is that of a plausible, logical and sufficiently close link between the injury and the accident. Thus, a faultcommitted by a third party between the time of the accident and that of the victim’s full recovery will not suffice to break the chain ofcausation, provided that the link remains plausible, logical and sufficiently close. This causal link could continue to exist even after avictim appears to have recovered if an injury becomes apparent afterwards (consider, for example, the case of fibromyalgia: Québec(Société de l’assurance automobile) v.

Viger, (QC CA), [2000] R.J.Q. 2209 (Que. C.A.); Chalifoux v. Québec(Commission des affaires sociales), (Que. C.A.)). [49] The language of the Act, when interpreted in light of the context in which it was enacted, the legislative intent andthe principles from Pram and Rossy, ultimately leads to the conclusion that, provided that there is a plausible, logical and sufficientlyclose link between, on the one hand, the automobile accident and the subsequent events (in the context of these appeals, the fault of athird party) and, on the other hand, the resulting injury, the Act will cover the whole of the injury.

Thus, the fact that the injury inquestion has an “aggravated” or “separate” aspect that can be attributed to events that occurred subsequently to the automobile accidentis immaterial: those events will be deemed to be part of the accident, and therefore of the cause of the whole of the injury.

(4) Challenge by the Appellants to the Principles Applicable to the

Interpretation of the Act [50] Though they deny it, the appellants are in my view, by arguing that the intervening cause doctrine applies,challenging the principles from Pram and Rossy, which have been applied consistently in the relevant cases, including those of the ATQ.The intervening cause doctrine presupposes a new event that caused a break in the chain of causation between the initial fault and theinjury. It is thus grounded in the concept of fault, here the fault of a third party that caused a break in the chain of causation (Baudouin,Deslauriers and Moore, at paras. 1-691 to 1-697).

Applying it in the context of the Act is clearly contrary to the principles enunciated byBaudouin J.A. in Pram, which this Court endorsed in Rossy. The intervening cause doctrine is part of the general law and is of noassistance in assessing the causal relationship between an automobile accident and bodily injury that results from the accident in thecontext of the no-fault compensation scheme provided for in the Act. [51] Furthermore, adopting the appellants’ position on the

interpretation and application of the Act would in my viewcause a breach in this compensation scheme, which would have consequences that St-Pierre J.A. described as follows: [translation] To make or accept a breach in the compensation scheme established by the [Act] in order to accommodatefact situations like the one in the instant case would have as a consequence, in particular, that the SAAQ might in future refuse or declineto compensate, in whole or in part, an automobile accident victim who has been treated by medical practitioners (which is almost alwaysthe case where an automobile accident is not insignificant) or might question its obligation and its competence to do so on the basis of an

aggravation of the injuries for which the health professionals who have treated the automobile accident victims are or may beresponsible. (Godbout, C.A. reasons, at para. 68) [52] Nevertheless, the appellants cite some cases in which Quebec courts have concluded that there was a break in thechain of causation between an automobile accident and bodily injury in specific circumstances. They also cite cases to the same effectfrom other Canadian provinces.

In the cases in question, the courts relied on the intervening cause doctrine or used similar language tofind that there had been a break in the chain of causation, which is always possible where, after the automobile accident, a new eventoccurs or a third party commits a fault that has the effect of aggravating an initial injury or causing a separate injury. It will therefore benecessary to consider those cases in order to assess their relevance. (

a) Quebec Cases [53] Only a few Quebec cases with respect to the Act have departed from the principles that were established in Pram andendorsed in Rossy. Moreover, those few cases are of only negligible weight, either because they predated Pram and Rossy, because theywere based on a case from the 1960s whose principles are no longer relevant today, or because they quite simply deviated from theprinciples from Pram and Rossy.

I should add that no final decision has as yet been rendered on the question before the Court in the casesat bar. [54] More specifically, in some of the cases the appellants cite, the analysis of the causal link was essentially based onprinciples articulated in Law, Union & Rock Insurance Co. v. Moore’s Taxi Ltd., (SCC), [1960] S.C.R. 80, a case thatconcerned the application of a private insurance contract in the context of an automobile accident. The causation test applied in that casewas that of a chain of causation that must not be broken or severed by the interposition of a new act of negligence.

Moore’s Taxi has littlebearing on the

interpretation and application of the causation test for a public no-fault compensation scheme under remedial sociallegislation such as the Act. [55] This being said, in Badeaux v. Corp. intermunicipale de transport de la Rive-sud de Québec, [1986] J.Q. no 473(QL), the plaintiff alleged negligence on the part of the driver of a bus from which she had disembarked before falling on an icysidewalk.

The driver’s employer, the transit authority, argued in its defence that this was an accident caused by the use of an automobile.Bergeron J. of the Superior Court could not find that there had been an automobile accident, and accordingly dismissed the transitauthority’s motion to dismiss. In his analysis, he referred to the causation test that had been applied in Moore’s Taxi. Although heacknowledged the remedial nature of the Act, he observed that it represented an exception to the principles of the general law of civilliability.

He added that [translation] “all the conditions imposed by the Act must be met, without exception and with certainty, for theAct to apply” (para. 13). On the issue of causation, he found that a cause that was merely circumstantial, fortuitous or remote from theaccident was insufficient and that “[t]his causal link must not be stretched unduly by trying to link to the use of an automobile damagethat, in reality, results from a completely different cause” (para. 16).

Finally, Bergeron J. stated that “[i]t must simply be concluded thatany new fact, independent of the use of the automobile, that arises as a cause of the damage breaks the chain of causation with thevehicle and precludes the application of the Automobile Insurance Act” (para. 35). I note that the action of the plaintiff in that case wasultimately dismissed on the merits (judgment dated January 30, 1987). I also note that at the interlocutory stage of the motion to dismiss,it was prudent for Bergeron J. to dismiss the motion, especially given that the SAAQ was not a party to the proceeding.

In sum, it is myview that that case is no longer relevant and must be disregarded in light of Pram and Rossy, which were decided several years later. [56] After Pram, but before Rossy, the causation test from Moore’s Taxi was also applied in one other isolated case,Morin v. Québec (Ville de), 2009 QCCS 3202.

The plaintiff in that case argued that employees of the city of Québec had committed afault or a negligent act that had broken the chain of causation between the automobile accident of which he had been a victim and theresulting bodily injury by failing to ensure that a “pneumatic lifting bag” was brought to the scene of the accident. In dismissing thecity’s motion to dismiss, Godbout J. of the Superior Court relied, inter alia, on Moore’s Taxi.

In doing so, he recognized that the decisionin that case [translation] “was rendered in a context in which the court had to determine the scope of an automobile insurance contract,not of a government no-fault liability scheme”, but he nonetheless found that it was “clearly . . . of interest” (at para. 17 ) andformulated the causation test as follows: “[T]he scheme created by the [Act] extends to consequences that are logical, direct orforeseeable or that arise from treatments that are generally administered in similar cases where the chain of causation has not been brokenby the interposition of a new act of negligence . . .” (para. 20).

Godbout J. concluded on this basis that, if the victim established that thealleged fault had “led to an aggravation of his injury or to separate damage that was not a logical or foreseeable consequence of the use ofthe vehicle, his action against the City could be admissible for that portion of the injury” (para. 21).

No decision has been rendered sincethat time on the merits of the case, but with all due respect, I find that the description of the causal link that was formulated and appliedin that case at the interlocutory stage of the motion to dismiss was inconsistent with the principles that were enunciated in Pram and weresubsequently endorsed in Rossy. [57] Another case that followed Pram but came before Rossy was C.S. v.

Québec (Commission des affaires sociales),[1996] AZ-51214610, in which the Superior Court considered an application for judicial review of a decision in which the Commissiondes affaires sociales (which subsequently became the ATQ) had found that injuries suffered by the victim did not constitute bodily injurycaused by an automobile accident and was not therefore damage for which he would be eligible for compensation from the SAAQ. In theCommission’s opinion, there had been a break in the chain of events, as the victim had been electrocuted by electrical wires next to anautomobile that had been in an accident.

Banford J. endorsed the Commission’s conclusions, noting that an analysis of the causal linkinvolved an assessment of the facts, and that such an assessment was within the Commission’s discretion. He was of the view that theCommission’s assessment of the facts could not be considered [translation] “irrational, illogical or unreasonable” (p. 6). Banford J.explained that “the victim, on approaching the scene of the accident, committed a deliberate act, which, contrary to the situations in theexamples mentioned above, constitutes a direct intervention that is capable of breaking the chain of causation” (p. 6).

He concluded thatthe Commission’s decision did not seem so unreasonable as to warrant his intervention. [58] In my opinion, once again, that case is not determinative for the purpose of analyzing the causal link that applies inthe context of the scheme created by the Act. In the context of a motion for judicial review, the Superior Court simply held, applying the

standard of review that is appropriate in such a case, that the impugned decision was not unreasonable. In any event, with all due respectfor the judge in question, it was in my opinion inappropriate in that case to consider fault on the part of the victim before finding that ano-fault compensation scheme did not apply. [59] Assurance-Automobile—68, [1997] C.A.S. 212, was another case decided after Pram but before Rossy in which theCommission des affaires sociales found a break in the chain of causation between an automobile accident and bodily injury suffered bythe victim.

It was a case in which the victim had not been injured when her vehicle skidded off the road, but had suffered frostbite whenshe then remained in the vehicle in bitterly cold weather, tried only once to restart the vehicle and refused help from a passerby. Relyingon C.S., the Commission concluded that it was the victim herself who had caused the injury and that there had been a break in the chainof events such that the injury was not a direct consequence of the accident.

The Commission also expressed doubts regarding the victim’sversion of the facts. [60] In my opinion, independently of the question of the victim’s credibility, the Commission repeated the error that hadbeen made in C.S. in considering the victim’s conduct and finding that she was responsible for her own injury in order to conclude that acompensation scheme did not apply despite the fact that it was meant to be a no-fault scheme.

In light of the Commission’s findings offact and reasoning, however, it would have been reasonable for the Commission to conclude that there had in fact been no accidentwithin the meaning of the Act, given that no bodily injury had been caused by the automobile or by the use thereof. [61] Finally, a few words must be said about the impact of St-Jean v. Mercier, S.C.C., No. 27515, January 15, 2001(Bulletin of Proceedings, January 19, 2001, at pp. 94-95), an interlocutory decision of this Court (per Gonthier J.) on which theappellants rely.

In that case, the victim of a serious automobile accident initially received compensation from the SAAQ, but the SAAQstopped paying him the full amount in 1991 on the basis that there was no causal relationship between certain of his injuries and theautomobile accident. The victim subsequently sued, for medical liability, the orthopaedic surgeon and the general practitioner in the emergency room who had treated his injuries. The Superior Court ([1998] J.Q. no 234 (QL)) held that the automobile accident wasindeed the cause of the victim’s injuries, and the SAAQ then reversed its own decision.

The victim nevertheless appealed the SuperiorCourt’s decision with a view to proceeding with his action in medical liability. The Court of Appeal ( (QC CA),[1999] R.J.Q. 1658) confirmed the trial judge’s conclusion on the causation issue. The victim then appealed to this Court, and therespondent applied to have the appeal dismissed, raising the issue of the application of the Act for the first time (2002 SCC 15, [2002] 1S.C.R. 491).

The SAAQ applied for leave to intervene on the same basis. [62] In a brief interlocutory decision, Gonthier J. dismissed both these applications, primarily on the basis that they weremade late. When all is said and done, therefore, the victim’s action was dealt with in all the courts as one in medical liability.

Thequestions being raised in the instant cases — identification of the causal link in the context of the scheme of the Act, and theinterpretation to be given to the Act, and more specifically to s. 83.57 — were quite simply not argued in this Court in St-Jean for eitherthe interlocutory decision or the decision on the merits. The Court was instead asked to rule on certain aspects of the general law causallink, without reference to the issues relating to the Act. That case cannot therefore serve as a precedent in support of the appellants’arguments. (

b) Cases From Other Canadian Provinces [63] In arguing that a break in the chain of causation between an automobile accident and bodily injury can in somesituations result from a subsequent fault committed by a third party, the appellants also rely on some cases from other Canadianprovinces. [64] In Rossy, LeBel J. recognized that a comparative law approach could be of some assistance in interpreting the wordsof the Act.

He cited in particular certain decisions of Manitoba courts that had been called upon to interpret provincial legislation thatwas similar to the Quebec legislation in that it created a no-fault automobile insurance scheme. As for Saskatchewan’s scheme, underwhich an insured could choose between no-fault coverage and tort-based coverage, LeBel J. stated that, because of that difference,considering how the courts have interpreted that province’s legislation would not prove as useful.

He nonetheless noted that, because ofthe language and context of the Quebec statutory scheme, even the relevant cases from other Canadian provinces could not help inresolving t

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