WILLIAM YACHUK Vs. OLIVER BLAIS CO LTD

JUDGEMENT

(1.) William Yachuk, an infant who sued by his father as next friend, and Tony Yachuk (the father suing in his own right) were plaintiffs, and the Oliver Blais Company Limited was defendant, in an action begun in January, 1943, in the Supreme Court of Ontario. Two other defendants who were also sued are no longer concerned in the proceedings, and no further reference need be made to them. The plaintiffs' claim was for damages for negligence and breach of statutory duty. Of the alleged breach of statutory duty all that need now be said is that no argument was addressed to their Lordships in support of that head of the claim. The negligence alleged consisted in supplying the infant plaintiff, then a child of nine years of age, with a small quantity of gasoline with the result that he suffered injury, and his father was put to expense. The first hearing of the action was abortive, as a new trial was ordered on appeal. The case was ultimately tried by Urquhart J. who, for reasons which are now irrelevant, discharged a jury before whom the hearing had begun, and proceeded to hear and determine the case without their assistance. The learned Judge found that there was negligence on the part of the defendant Company, and that its negligence was a cause of the injuries which the infant plaintiff had sustained. He further found that there was contributory negligence on the part of the infant plaintiff. He assessed the damages at $ 8000 in respect of the infant plaintiff and $ 2712'75 in respect of the adult plaintiff, but inasmuch as he regarded the infant plaintiff as "seventy-five per cent. responsible" for his own injuries, he apportioned the damages, as between the defendant Company and each of the plaintiffs, in proportion to the degree of negligence so found. It was therefore adjudged that the infant plaintiff should recover $ 2000 and his father $678.19. The question whether the terms of the Negligence Act (R. S. O. 1937, c. 115) could justify, on any view of the facts, this reduction of the damages awarded to the father does not appear to have been argued before the learned Judge. It was answered in the affirmative by two Judges of the Supreme Court of Canada. As will appear, no other Judge had occasion to pronounce on it, and their Lordships have not found it necessary to consider it.

(2.) The plaintiffs appealed, and the defendant cross-appealed, to the Court of Appeal for Ontario. A judgment, with which Robertson, C. J. O., and Roach, J. A., expressed their agreement, was delivered by McRuer, J.A. The appeal of the plaintiffs was allowed, the Court holding that the defence of contributory negligence failed. The cross-appeal was dismissed. The order of the Court was that judgment should be entered for the full amounts at which Urquhart J., had assessed the damages, without deduction.

(3.) From this order the defendant appealed to the Supreme Court of Canada. Of the five Judges who heard the appeal two, the Chief Justice of Canada and Kerwin J., were of opinion that the appeal should be allowed and the action dismissed, holding that negligence could not be imputed to the defendant's salesman. The other three (Hudson, Rand and Estey JJ.) were all agreed that there was negligence on the part of the defendant's salesman, but whereas Hudson and Estey JJ., thought that the trial Judge was right in his finding of contributory negligence, and in reducing the damages accordingly Rand J., agreed with the decision of the Court of Appeal for Ontario. In the result an order was made restoring the judgment of Urquhart J.