Levesque v. Comeau, 10 DLR (3d) 699

JudgeFauteux, Martland, Judson, Ritchie, and Pigeon, JJ.A.
CourtSupreme Court of Canada
Case DateJune 26, 1970
JurisdictionCanada (Federal)
Citations10 DLR (3d) 699;[1970] 5 CCC 217;5 NBR (2d) 15;1970 CanLII 2 (SCC);[1970] SCR 1010;11 DLR (3d) 673;[1970] SCJ No 55 (QL);[1971] SCR 2;[1971] SCR 23;13 DLR (3d) 340;1970 CanLII 129 (SCC);1970 CanLII 21 (SCC);1970 CanLII 193 (SCC);2 CCC (2d) 79;[1970] SCR 772;[1970] 4 CCC 1;74 WWR 167;[1970] 4 CCC 27;[1970] SCR 953;1970 CanLII 170 (SCC);1970 CanLII 1

Levesque v. Comeau (1970), 5 N.B.R.(2d) 15 (SCC);

    5 R.N.-B.(2e) 15

MLB headnote and full text

Sommaire et texte intégral

Levesque v. Comeau

Indexed As: Levesque v. Comeau

Répertorié: Levesque v. Comeau

Supreme Court of Canada

Fauteux, Martland, Judson, Ritchie, and Pigeon, JJ.A.

June 26, 1970.

Summary:

Résumé:

The Supreme Court of Canada dismissed an appeal from a judgment of the New Brunswick Court of Appeal. The Court of Appeal affirmed a judgment of the Queen's Bench Division which dismissed an action for damages for personal injuries. The Supreme Court of Canada affirmed the finding of the trial judge that the plaintiff failed to discharge the burden of persuading the court that on a balance of probabilities that the plaintiff's injuries were caused by the accident. The plaintiff, a 36 year old housewife, struck her head on the windshield of her husband's car which was struck in the rear. Two months after the accident she started to lose her hearing which resulted in a 75 to 90 per cent loss of hearing in both ears. The medical witnesses at trial did not state that the accident was the probable cause of the deafness. The Supreme Court of Canada stated that the plaintiff did not show by a preponderance of probabilities that her injuries resulted from the accident.

Ritchie, J., and Martland, J., dissenting, would have allowed the appeal and stated that the evidence as a whole shows that the blow that the plaintiff received was the most probable cause of her affliction.

Evidence - Topic 109

Degree, standard or burden of proof - Standard or degree of proof - Causation - Whether the plaintiff's deafness was caused by the trauma of a motor vehicle accident - The Supreme Court of Canada dismissed the plaintiff's action and held that the plaintiff failed to discharge the burden of persuading the court that on a balance of probabilities the plaintiff's injuries were caused by the accident.

Evidence - Topic 2401

Special modes of proof - Presumption - Specific presumptions - Inference from failure to call available evidence - Witness - Presumption - The plaintiff failed to call certain medical witnesses in personal injury action - The Supreme Court of Canada stated that a court must presume that such medical evidence where available and not offered would have adversely affected the plaintiff's case - Paragraph 31.

Damage Awards - Topic 113

Injury and death - Head injuries - Ears and hearing - Head injury - 75 to 90 per cent loss of hearing - 36 year old housewife - The Supreme Court of Canada affirmed a general damage award of $25,000.00 - Paragraph 22.

Practice - Topic 4780

Discovery - Physical or psychological examination - Examination, conditions of - The defendant in a personal injury action requested and was denied a physical examination of the plaintiff - The Supreme Court of Canada stated that the plaintiff was justified in refusing to be examined by the defendant's doctor otherwise than in the presence of an advisor of the plaintiff - Paragraph 9.

Cases Noticed:

Gardiner v. Motherwell Machinery & Scrap Co. Ltd., [1961] 1 W.L.R. 1424, folld.

North British & Mercantile Ins. Co. v. Tourville (1895), 25 S.C.R. 177, folld.

Counsel:

S.M. Leikin, for appellants;

J.T. Jones, for respondents.

Fauteux, J. and Judson, J. concurred with Pigeon, J.

Martland, J., concurred with Ritchie, J.

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195 practice notes
  • Club Intrawest v. The Queen, 2016 TCC 149
    • Canada
    • Canada (Federal) Tax Court of Canada
    • June 9, 2016
    ...sub verbo “use”. [59] Subject to any residual possession rights retained by the Appellant. [60] Lévesque v Comeau et al, [1970] SCR 1010, 5 NBR (2d) 15, 16 DLR (3d) [61] Ibid. at pages at 1012 - 1013 SCR. [62] Exhibit A-1, Table 1. [63] Transcript, pages 376-377, argument of counsel for the......
  • R. v. Ferris (J.M.), (1994) 149 A.R. 1 (CA)
    • Canada
    • Alberta Court of Appeal (Alberta)
    • January 11, 1994
    ...Brooks, Harvey and Stefiuk (1981), 11 Man.R.(2d) 389; 61 C.C.C.(2d) 268 (Co. Ct.), refd to. [para. 78]. R. v. Wray, [1971] S.C.R. 272; [1970] 4 C.C.C. 1; 11 D.L.R.(3d) 673, refd to. [para. R. v. Duke (1985), 62 A.R. 204; 22 C.C.C.(3d) 217 (C.A.), refd to. [para. 92]. Statutes Noticed: Canad......
  • R. v. Vaillancourt, 1975 CanLII 18 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • February 13, 1975
    ...that evidence to be introduced. In this connection we have in mind the decision of the Supreme Court of Canada in R. v. Wray, [1970] 4 C.C.C. 1, 11 D.L.R.(3d) 673, [1971] S.C.R. 272. For these reasons the appeal will be dismissed." [17] It is noteworthy that in the Lafrance case the ex......
  • Rimmer v. Langley (Township), 2007 BCCA 350
    • Canada
    • British Columbia Court of Appeal of British Columbia
    • May 25, 2007
    ...171 B.C.A.C. 101; 280 W.A.C. 101; 214 D.L.R.(4th) 577; 2002 BCCA 417, refd to. [para. 32]. Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15; 16 D.L.R.(3d) 425, refd to. [para. R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 210 D.L.......
  • Request a trial to view additional results
195 cases
  • Club Intrawest v. The Queen, 2016 TCC 149
    • Canada
    • Canada (Federal) Tax Court of Canada
    • June 9, 2016
    ...sub verbo “use”. [59] Subject to any residual possession rights retained by the Appellant. [60] Lévesque v Comeau et al, [1970] SCR 1010, 5 NBR (2d) 15, 16 DLR (3d) [61] Ibid. at pages at 1012 - 1013 SCR. [62] Exhibit A-1, Table 1. [63] Transcript, pages 376-377, argument of counsel for the......
  • R. v. Ferris (J.M.), (1994) 149 A.R. 1 (CA)
    • Canada
    • Alberta Court of Appeal (Alberta)
    • January 11, 1994
    ...Brooks, Harvey and Stefiuk (1981), 11 Man.R.(2d) 389; 61 C.C.C.(2d) 268 (Co. Ct.), refd to. [para. 78]. R. v. Wray, [1971] S.C.R. 272; [1970] 4 C.C.C. 1; 11 D.L.R.(3d) 673, refd to. [para. R. v. Duke (1985), 62 A.R. 204; 22 C.C.C.(3d) 217 (C.A.), refd to. [para. 92]. Statutes Noticed: Canad......
  • R. v. Vaillancourt, 1975 CanLII 18 (SCC)
    • Canada
    • Canada (Federal) Supreme Court of Canada
    • February 13, 1975
    ...that evidence to be introduced. In this connection we have in mind the decision of the Supreme Court of Canada in R. v. Wray, [1970] 4 C.C.C. 1, 11 D.L.R.(3d) 673, [1971] S.C.R. 272. For these reasons the appeal will be dismissed." [17] It is noteworthy that in the Lafrance case the ex......
  • Rimmer v. Langley (Township), 2007 BCCA 350
    • Canada
    • British Columbia Court of Appeal of British Columbia
    • May 25, 2007
    ...171 B.C.A.C. 101; 280 W.A.C. 101; 214 D.L.R.(4th) 577; 2002 BCCA 417, refd to. [para. 32]. Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15; 16 D.L.R.(3d) 425, refd to. [para. R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 210 D.L.......
  • Request a trial to view additional results