de
Montigny v. Brossard (Succession), 2010
SCC 51, [2010] 3 S.C.R. 64
Marcel de Montigny, personally and in
his capacity as heir
and liquidator of the succession of
Liliane de Montigny,
and in his capacity as heir of the
successions of Claudia
and Béatrice Brossard,
Sandra de Montigny, personally and in
her capacity as heir
and liquidator of the succession of
Liliane de Montigny, and
Karen de Montigny, personally and in her
capacity as heir
and liquidator
of the succession of Liliane de Montigny Appellants
v.
Succession of the late Martin Brossard,
represented by
Roger Brossard,
its liquidator Respondent
and
Attorney
General of Quebec Intervener
Indexed as: de
Montigny v. Brossard (Succession)
2010 SCC 51
File No.: 32860.
2010: April 14; 2010: November 10.
Present: McLachlin C.J.
and LeBel, Deschamps, Fish, Abella, Charron and Cromwell JJ.
on appeal from the court of appeal for quebec
Damages — Quantum — Moral
prejudice — Spouse killing former spouse and their two children before
committing suicide — Relatives of victims bringing civil liability action
against murderer’s succession both personally and in their capacity as heirs
and liquidators of victims’ successions — Trial judge allowing personal damages
claim for solatium doloris and loss of moral support and dismissing action by
successions — Whether compensation for solatium doloris and loss of support
adequate.
Human rights — Compensation —
Punitive damages — Autonomous nature — Death of perpetrator of illegal and
intentional acts — Relatives of victims claiming punitive damages from
murderer’s succession both personally and in their capacity as heirs and
liquidators of victims’ successions — Whether absence of award of compensatory
damages bars claim for punitive damages — Whether death of perpetrator of
intentional wrong precludes award of punitive damages against his succession —
Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 49 —
Civil Code of Québec, R.S.Q., c. C‑1991, art. 1621.
In April 2002, B
strangled his former spouse, drowned the couple’s two children, and then
committed suicide. M, S and K later instituted an
action in civil liability, on their own behalf and as heirs and liquidators of
the victims’ successions, claiming compensatory and punitive damages from B’s
succession. The trial judge denied the claim by
the successions for two reasons. First of all, he concluded that compensation
claimed for pain, suffering and loss of expectation of life could be
transmitted to heirs only where the evidence showed that a sufficient period of
time had elapsed between the wrongful act and the death and that the victim had
actually felt pain. The fact that the deaths of the victims in this case were
almost instantaneous meant that damages could not be awarded under this head.
Because the trial judge took the view that punitive damages are incidental to
compensatory damages, he concluded that a right to punitive damages did not
become part of the victims’ patrimony that would be transmitted to their
heirs. The judge added that the deterrent aspect of punitive damages no longer
applied in any event because B was deceased. However, the judge allowed the
personal action of M, S and K and awarded them damages for solatium doloris
and loss of moral support. The
Court of Appeal upheld the trial decision.
Held: The
appeal should be allowed in part.
There is no reason to
intervene to vary the amounts awarded to M, S and K personally as compensation
for the moral prejudice they suffered as a result of B’s actions, because the
trial judge did not commit any palpable and overriding error in determining the
quantum of compensatory damages. In this case, the
amounts awarded by the trial judge are well within the range of acceptable
compensation and seem reasonable, even if
the compensation levels for this type of prejudice remain conservative. The fact that the trial
judge did not consider psychological prejudice separately from the other
aspects of the moral prejudice suffered by M, S and K is not in itself a
reviewable error in principle. Here, the
judge properly considered the psychological prejudice
suffered by M, S and K in determining the compensation he awarded them.
However, the claim for punitive damages under s. 49, para. 2 of
the Quebec Charter made by M, S and K in their capacity as heirs and
liquidators of the successions was admissible, even in the absence, in this
case, of an award of compensatory damages. In this regard, the majority
opinion in Béliveau St‑Jacques has been given too broad a scope.
That opinion excluded an action under s. 49, para. 2 of the Charter
only in cases involving public compensation systems. Outside that context,
there is no reason not to recognize the autonomous nature of punitive damages.
The Charter’s quasi‑constitutional status means that it prevails
over general legal rules in the Quebec normative order. If the autonomy of the
right to such damages conferred by the Charter is denied by imposing on
those asserting it the additional burden of first proving that they are
entitled to bring an action that they may not necessarily wish or be able to
bring, this amounts to making the implementation of the Charter rights
and freedoms subject to the rules applicable to civil law actions. There is no
justification for maintaining this obstacle.
Similarly, it is too narrow a
view of the role of punitive damages to say that there is no point in awarding
them where the person who committed an unlawful act is deceased. That view
does not take account of the social utility of this form of judicial
intervention. Article 1621 C.C.Q. recognizes the preventive
purpose of punitive damages. Because of the exceptional nature of these
damages, the courts have been using them only for punishment and deterrence
(both specific and general) of conduct that is considered socially
unacceptable. However, since denunciation contributes to the preventive
objective of art. 1621 C.C.Q. just as much as punishment and
deterrence, there is no reason to refuse to recognize denunciation as an
objective of punitive damages in Quebec civil law, especially where the issue
is respect for the rights and freedoms guaranteed by the Charter.
In this case, awarding punitive damages
seems entirely appropriate in the circumstances to denounce the acts in
question and affirm the importance of the right to life. The murders committed
by B were for the victims an unlawful interference with a right protected by
the Charter and were also a civil fault within the meaning of the law of
civil liability. The interference was intentional because B intended to
deprive his victims of life at the time he acted. Since B’s succession is
insolvent, a symbolic lump sum of $10,000, payable to the three successions and
to be shared among them equally, is sufficient to achieve the objective of
denunciation. Since the Quebec law of succession allows the right of action
for punitive damages under the Charter to be transmitted to a person’s
heirs, M, S and K could bring this action by the successions on behalf of the
victims. However, because there is no reason to believe that B intended to
interfere with the psychological inviolability of M, S and K or even that he
actually thought about the consequences of his actions for them, their personal
action for punitive damages cannot succeed.
Cases Cited
Distinguished: Béliveau St‑Jacques v. Fédération
des employées et employés de services publics inc., [1996] 2 S.C.R. 345; referred to: Augustus v. Gosset, [1996] 3 S.C.R. 268; Quebec (Public
Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand,
[1996] 3 S.C.R. 211; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R.
401; Driver v. Coca‑Cola Ltd., [1961] S.C.R. 201; Pantel v. Air
Canada, [1975] 1 S.C.R. 472; Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Hill v. Church of Scientology of Toronto, [1995] 2
S.C.R. 1130; Wilkes v. Wood (1763), Lofft. 1, 98 E.R. 489; Whiten v.
Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595; Vancouver (City)
v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Association des professeurs de
Lignery v. Alvetta‑Comeau, [1990] R.J.Q. 130.
Statutes and Regulations Cited
Act respecting industrial
accidents and occupational diseases, R.S.Q.,
c. A‑3.001, s. 438.
Act respecting the implementation of the reform of
the Civil Code, S.Q. 1992, c. 57, s. 423.
Act respecting the Régie du logement, R.S.Q., c. R‑8.1.
Canadian Charter of Rights and Freedoms, s. 24(1) .
Charter of human rights and freedoms, R.S.Q., c. C‑12, Preamble, ss. 1, 49.
Civil Code of Québec, R.S.Q., c. C‑1991,
arts. 625, 1610, 1618, 1621.
Consumer Protection Act, R.S.Q., c. P‑40.1.
Tree
Protection Act, R.S.Q.,
c. P‑37.
Authors Cited
Baudouin, Jean‑Louis, et
Patrice Deslauriers. La responsabilité civile, 7e éd.,
vol. I. Cowansville, Qué.: Yvon Blais, 2007.
Beaulne, Jacques. Droit des successions, 4e
éd., d’après l’œuvre de Germain Brière. Montréal: Wilson & Lafleur, 2010.
Dallaire, Claude. “L’évolution des dommages
exemplaires depuis les décisions de la Cour suprême en 1996: dix ans de
cheminement”, dans Développements récents en droit administratif et constitutionnel,
vol. 240. Cowansville, Qué.: Yvon Blais, 2006, 185.
Gardner, Daniel. Le préjudice corporel, 3e
éd. Cowansville, Qué.: Yvon Blais, 2009.
Ontario. Law Reform Commission. Report on
Exemplary Damages. Toronto: The Commission, 1991.
Pratte, Pierre. “Les dommages punitifs: institution
autonome et distincte de la responsabilité civile” (1998), 58 R. du B. 287.
APPEAL from a judgment of the Quebec Court of Appeal (Pelletier,
Bich and Côté JJ.A.), 2008 QCCA 1577, [2008] R.J.Q. 2015, [2008] J.Q. no 8007
(QL), 2008 CarswellQue 7957, affirming in part a judgment of Trudel J.,
2006 QCCS 1677, [2006] R.J.Q. 1371, 40 C.C.L.T. (3d) 109, [2006] Q.J. No. 2848
(QL), 2006 CarswellQue 14487. Appeal allowed in part.
Jean‑Félix Racicot,
for the appellants.
No one appeared for the
respondent.
Jean‑Yves Bernard,
for the intervener.
Sébastien Grammond,
as amicus curiae.
English version of the judgment of the
Court delivered by
[1]
LeBel J. — This
appeal has as its backdrop a family tragedy. On the morning of April 22,
2002, Martin Brossard entered the home of his former spouse, Liliane de
Montigny, strangled her and then drowned the couple’s two children, Claudia and
Béatrice, in the bathtub of the home they had all once shared. He then hanged
himself, leaving a note that clearly explained the reasons for his actions.
[2]
Since the tragedy, Marcel de Montigny, who is Liliane’s father and the
grandfather of Claudia and Béatrice, and Sandra and Karen de Montigny, who are
Liliane’s sisters and the children’s aunts, have been engaged in civil
proceedings against the murderer’s succession. As heirs and liquidators of the
successions of Liliane, Claudia and Béatrice, and also on their own behalf,
they are claiming compensatory and punitive damages from Martin Brossard’s
succession.
[3]
Despite its difficult context, this case provides the Court with an
opportunity to reconsider the question of whether the punitive damages that may
be awarded under s. 49, para. 2 of the Charter of human rights and
freedoms, R.S.Q., c. C‑12 (“Charter”), are
autonomous in nature. This Court must consider the relevance of such damages
in cases where, as here, the person who committed the act in question can no
longer be punished for his or her conduct.
I. Origin of the Case
[4]
Liliane de Montigny and Martin Brossard were together for about
15 years, from 1986 to 2001, although they separated a few times during that
period. They had two children: Claudia, who was born in December 1997, and
Beatrice, who was born in October 2000. In December 1999, they purchased land
in Brossard, a suburb south of Montréal. They had a house built on the land
and took possession of it in June 2000. They separated just over a year later,
in November 2001. Liliane stayed in the family home with the children, while
Martin went back to live with his parents. They agreed to
share custody of the children.
[5]
On the morning of April 22, 2002, it was agreed that Martin
would pick up the children at Liliane’s house, take them out for breakfast and
drive them to daycare. The children’s caregiver was concerned when they did
not arrive at the expected time. After trying in vain to reach Liliane and
Martin, she went to the couple’s home and knocked on the door, but no one
answered. She looked through the stained‑glass window of the front door
and saw Martin’s body hanging in the living room. She
immediately called for help.
[6]
When the police arrived, they found not only Martin’s body but also the
lifeless bodies of Liliane, Claudia and Béatrice. Liliane was lying on her
back in the master bedroom and had marks on her neck. The autopsy report
indicated that she had been strangled, possibly with the belt from her
bathrobe. The two children were lying face down in the empty bathtub in the
upstairs bathroom. The autopsy reports concluded that they had both died from
drowning. The cause of Martin’s death was asphyxiation by hanging. In its
report to the coroner, the police investigation division concluded that there
had been a triple murder followed by a suicide. That conclusion was consistent
with the note left by Martin expressing despair over his breakup with Liliane.
[7]
On July 3, 2002, Marcel, Sandra and Karen de Montigny appeared
before a notary to make a declaration of inheritance in Liliane’s succession
and designated themselves as liquidators of the succession. The heirs did not
designate a liquidator for the successions of Claudia and Béatrice. On
October 3, 2002, they commenced the action that is the subject of this
appeal in the Quebec Superior Court.
II. Judicial History
A. Quebec Superior Court, 2006 QCCS 1677 (CanLII)
[8]
In the Quebec Superior Court, the plaintiffs brought an action in
damages against Martin Brossard’s succession. The action had two parts, namely
a claim by the successions and a direct claim.
[9]
There were two aspects to the action by the successions. First,
the three plaintiffs, in their capacity as heirs and liquidators, claimed
compensation for the damage allegedly suffered by Liliane’s succession.
Second, Marcel de Montigny did the same for the successions of Claudia and
Béatrice. The case was heard by Clément Trudel J.
[10]
On the first aspect, Trudel J. concluded that he could not award
the compensation claimed for Liliane’s pain, suffering and loss of expectation
of life. That head of damages is transmitted to heirs only where the evidence
shows that a sufficient period of time elapsed between the wrongful act and the
death and that the victim actually felt pain. However, it appeared that
Liliane, who became unconscious a few seconds after being attacked by Martin,
had not regained consciousness before she died. Because her death was almost
instantaneous, Trudel J. refused to award damages under this head to the
succession. He also denied the claim for reimbursement of her funeral expenses.
[11]
Still dealing with the first aspect of the claim by the successions,
Trudel J. next considered the demand for exemplary or punitive damages
(which are equivalent terms according to the Act respecting the
implementation of the reform of the Civil Code, S.Q. 1992, c. 57,
s. 423). He noted that the Quebec legislature has recognized the
possibility of awarding such damages in certain statutes, including the Charter.
However, he inferred from this Court’s decisions on the matter, particularly Béliveau
St‑Jacques v. Fédération des employées et employés de services publics
inc., [1996] 2 S.C.R. 345 (“Béliveau St‑Jacques”), that this
type of damages can only be incidental to an award of compensatory damages for
moral or material prejudice. Since he had found that he could not award
compensatory damages for Liliane’s death, Trudel J. concluded that a right
to exemplary damages could not have become part of Liliane’s patrimony or been
transmitted to her heirs. He added that the deterrent aspect of punitive damages
no longer applied in any event because Martin was deceased.
[12]
Trudel J. applied the same reasoning to Marcel de Montigny’s claims
on behalf of the successions of young Claudia and Béatrice, which were the
second aspect he considered. Since death by drowning is also almost
instantaneous, neither compensatory nor exemplary damages could have become
part of the young girls’ patrimony. He therefore denied these heads of damages
for the same reasons as with Liliane’s succession. However, he awarded the
successions half of the funeral expenses incurred as a result of the children’s
deaths.
[13]
Trudel J. also considered the direct claim, in which Liliane’s
father and sisters sought damages from Martin Brossard’s succession for solatium
doloris and loss of moral support. After examining the evidence concerning
the relationships among the members of the de Montigny family and the personal
consequences of the tragedy for each of them, Trudel J. awarded Marcel de
Montigny $30,000 for the loss of Liliane and $6,000 for the loss of each of his
granddaughters. He awarded Sandra and Karen de Montigny $10,000 for the death
of their sister Liliane and $2,000 for the death of each of their nieces.
However, he denied the claim of Jacques‑Yves Gadbois, Sandra de
Montigny’s spouse, on the basis that he had not been part of the family for
long enough to have formed an attachment that could justify awarding him moral
damages.
B. Quebec Court of Appeal, 2008 QCCA 1577, [2008] R.J.Q. 2015
(Pelletier, Bich and Côté JJ.A.)
[14]
Four aspects of Trudel J.’s decision were appealed to the Quebec
Court of Appeal. The appellants’ appeal against the Brossard succession
related first to the quantum of compensation awarded to them personally for
pain and loss of moral support. It also concerned the refusal to award
compensation to the successions for the victims’ suffering and loss of
expectation of life as well as the denial of exemplary damages. Finally, the
appellants claimed full compensation for the funeral expenses incurred by the
successions.
[15]
On the issue of the amount of compensation awarded to the plaintiffs for
solatium doloris and loss of consortium and servitium
(“loss of moral support”), Pelletier J.A., for a unanimous Court of
Appeal, found that Trudel J. had properly applied the principles
established by this Court in Augustus v. Gosset, [1996] 3 S.C.R. 268 (“Augustus”).
Moreover, his assessment of the evidence did not warrant any intervention by
the Court of Appeal. Pelletier J.A. added that the amounts awarded were
comparable to those awarded in other cases that bore some similarity to the
present one.
[16]
The Court of Appeal found that the trial judge had not erred concerning
the victims’ right to be compensated for pain and suffering and loss of
expectation of life. Since it was impossible to determine the sequence of
events, it could not be concluded that one of the victims could have suffered
as a result of being aware of another victim’s murder. As well, the courts had
long refused to accept such claims where the victim dies almost instantaneously
or where the quantity of the time elapsed between the causal act and death does
not allow for a reasonable inference that the victim suffered any prejudice
separate from the death itself, as in this case.
[17]
Next, the Court of Appeal held that Trudel J. had correctly refused
to award exemplary damages to the victims’ successions. However, at the
hearing, the appellants had been given leave to amend their motion in order to
claim exemplary damages in their personal capacity as “indirect victims”.
While this eliminated the objection based on the immediate victims’ lack of
recourse, the fact that exemplary damages can have no deterrent effect where
the wrongdoer is deceased was an issue, as it had been at trial. According to
Pelletier J.A., this factor justified denying the claim for exemplary
damages:
[translation]
. . . assuming that a message must be sent to anyone who might be
tempted to do something similar to what Martin Brossard did . . .
such a warning would have no real impact. . . . The level of despair
required to contemplate such extreme action means that it is illusory to think
that any deterrent effect can result from an award of punitive damages.
[para. 37]
[18]
With regard to funeral expenses, the Court of Appeal intervened to allow
the claims of the successions of Liliane, Claudia and Béatrice. That aspect of
the decision is not in issue before this Court.
III. The Appeal to This Court
Appointment of the Amicus Curiae
[19]
After leave to appeal was granted in this matter, the appeal was set
down for hearing in the fall 2009 session. However, the succession of the late
Martin Brossard gave notice of its withdrawal and this Court appointed an amicus
curiae, Sébastien Grammond. I note that Mr. Grammond made a
considerable contribution to the proceedings through his factum and his input
during the hearing.
IV. Analysis
A. Issues
[20]
There are two issues in this appeal:
1. Whether
the trial judge and the Court of Appeal committed a palpable and overriding
error in determining adequate compensation for solatium doloris and loss
of moral support;
2. Whether the death of a person who
commits intentional acts for which the victims could be awarded exemplary
damages precludes an award of exemplary damages against the person’s
succession. Whether the admissibility of such a remedy then depends on the
existence of another head of damages.
B. Positions
of the Parties
(1) Appellants’
Position
[21]
On the first issue, the appellants argue, in light of the case law and
on the basis of the quality of their relationships with Liliane, Claudia and
Béatrice, the circumstances of the deaths and the consequences of the tragedy
for their own lives, that the quantum of damages awarded to them does not
constitute full and acceptable compensation for the prejudice they suffered.
They add that the Quebec courts seem to view the amount awarded by this Court
in Augustus, the leading case on compensatory damages, as a cap on
compensation, and they submit that that amount, expressed in today’s dollars,
should be much higher than at the time it was established. They therefore ask
this Court to substantially increase the compensation awarded to them under this
head by the courts below.
[22]
On the second issue, the appellants argue that the admissibility of a
claim for exemplary damages does not depend on the existence of another head of
damages. They argue that an exemplary damages remedy exists autonomously and
in parallel where a Charter right is intentionally violated. They add
that the objectives of such damages are not limited to punishing or curbing an
existing situation but also include deterring and denouncing acts of the same
nature. In light of the facts of this case, particularly the motives for
Martin Brossard’s crime, the victims’ situation and international recognition
of the need to protect women and children, the appellants submit that exemplary
damages must be awarded to send a clear message to society. The quantum of
such damages will have to be determined based on the factors set out in
art. 1621 of the Civil Code of Québec, R.S.Q., c. C‑1991
(“C.C.Q.”), namely the gravity of the fault, the defendant’s patrimonial
situation, the extent of the reparation for which the debtor is already liable
and the fact that the payment of compensation is assumed by a third person.
(2) Position
of the Amicus Curiae
[23]
On the first issue, the amicus curiae is in favour of full
compensation for the prejudice suffered by the surviving members of the de
Montigny family, including psychological prejudice. In his view, by accepting
only the concepts of solatium doloris and loss of moral support, the
trial judge and the Court of Appeal failed to compensate for that specific type
of prejudice and thus violated the principle of full compensation that
underlies civil liability. He suggests that this Court reassess the moral
prejudice by taking full account of the psychological prejudice.
[24]
On the second issue, which relates to punitive damages, the amicus
curiae suggests that the objectives of such damages are the same in Quebec
civil law as in the common law, namely punishment, deterrence and
denunciation. For such damages to be awarded, there must have been intentional
interference with the victim’s rights within the meaning of s. 49,
para. 2 of the Charter. In other words, the person who committed
the interference must have acted “with full knowledge of the immediate and
natural or at least extremely probable consequences that his or her conduct
will cause” (Quebec (Public Curator) v. Syndicat national des employés de
l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211 (“St‑Ferdinand”),
at para. 121). In the present case, there is no evidence of intentional
interference with the appellants’ inviolability. According to the amicus
curiae, the interference resulted only from Martin Brossard’s recklessness,
and it was held in Augustus that recklessness does not amount to
intentional fault. Therefore, in his opinion, the appellants cannot claim
punitive damages from Martin Brossard’s succession either personally or as
indirect victims.
[25]
However, the amicus curiae adds that the successions of Liliane,
Claudia and Béatrice can obtain such damages. The Charter does not
exclude the general principle set out in art. 625, para. 3 and
art. 1610 C.C.Q. that the right to punitive damages for
interference with personality rights is a right that may be transmitted to a
person’s heirs. The amicus curiae acknowledges that Béliveau St‑Jacques
was thought to have established a policy rule whereby the remedy of punitive
damages is incidental to an award of compensatory damages. However, according
to the amicus curiae, the solution adopted in Béliveau St‑Jacques
can be explained by the specific facts of that case, particularly the
importance of protecting [translation]
“the integrity of major government compensation systems” (Daniel Gardner, Le
préjudice corporel (3rd ed. 2009), at p. 161). Since that special
concern is not present here in the instant case, no civil law principle would
prevent awarding punitive damages even in the absence of an award of
compensatory damages.
[26]
Finally, the amicus curiae submits that an obligation to pay
punitive damages became part of Martin Brossard’s patrimony at the time he
killed his victims and was transmitted to his heirs with the rest of his
patrimony (art. 625 C.C.Q.). Even if it is impossible to punish
the murderer, and even if an award of punitive damages against the murderer’s
succession is unlikely to deter people from committing similar acts, it is
important for this Court to denounce and indicate society’s disapproval of his
crime. For that purpose, the amicus curiae suggests $1,000 as a
symbolic amount.
C. Compensation for Solatium Doloris and Loss of Moral Support
[27]
This appeal reminds us once more of the delicate nature of
judges’ work. In civil liability cases, judges sometimes have the difficult
task of quantifying the value of concepts as intangible as a person’s life,
physical inviolability or suffering. In this area, where, by definition, the
exercise of reasoned discretion remains the rule, the judge must also give as
much priority as possible to following established judicial practice while
adapting it to the specific circumstances of each case. Because of the
essential factual assessment required by this task, an appellate court must
take a highly deferential approach to varying the quantum of compensatory
damages awarded by the trial judge. The “palpable and overriding error”
standard applies to findings and inferences of fact concerning the assessment
of such damages (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235,
at paras. 10 and 25; H.L. v. Canada (Attorney General), 2005 SCC
25, [2005] 1 S.C.R. 401, at para. 53).
[28]
We have seen that the appellants claimed compensatory damages in the
Quebec Superior Court in their dual capacity as heirs of the successions of
Liliane, Claudia and Béatrice and as direct victims of moral prejudice.
Trudel J. dismissed the action by the successions on the basis of Driver
v. Coca‑Cola Ltd., [1961] S.C.R. 201, which set out the principle
that a claim for damages for pain and suffering is transmitted to a person’s
heirs only if two conditions are met, namely, first, that a sufficiently long
time have elapsed between the wrongful act and the death and, second, that the
victim have actually felt pain (see also Pantel v. Air Canada, [1975] 1
S.C.R. 472, at pp. 478‑79; Augustus, at para. 56). The
experts who testified at trial stated that death by strangulation or drowning
is almost instantaneous. They said that, in both cases, loss of consciousness
occurs after about 10 to 15 seconds and death within a few minutes. Since the
right to life terminates at the time of death (Augustus, at para. 62),
the trial judge correctly denied this claim. This aspect of the judgment is
not under appeal in this Court.
[29]
However, the appellants are disputing the amounts awarded to them as
compensation for the moral prejudice they suffered. In their opinion, those
amounts are so far removed from full compensation for that prejudice that their
determination was in itself a palpable and overriding error justifying
appellate intervention. In support of their arguments, the appellants rely on
examples drawn from Quebec cases in which the facts, while not completely
identical to those of the instant case, are similar enough to form a basis for
comparison. They submit that the Quebec courts still seem to wrongly view the
amount awarded by this Court in Augustus as a cap on compensation.
Moreover, that cap would be much higher once adjusted. I shall deal with this
argument first.
[30]
In Augustus, the victim, a 19‑year‑old youth, escaped
from the custody of the police officer who had arrested him on a warrant. The
ensuing chase ended with the young man being shot in the head and killed. The
appellant in that case, who was the victim’s mother, claimed, inter alia,
compensatory damages from the respondents as solatium doloris.
L’Heureux‑Dubé J., for this Court, held that $25,000 might be fair
and reasonable in the circumstances but nonetheless referred the parties back
to the Court of Appeal so it could determine the quantum of this head of
compensation after hearing the parties on this point (para. 51).
[31]
While the Quebec courts have since used the sum of $25,000
awarded by L’Heureux‑Dubé J. as a reference point for determining
the amount to be awarded as compensation for moral prejudice, it has never been
considered a cap in the same way as the $100,000 awarded by Dickson J. in Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 265, for
non‑pecuniary losses suffered by the immediate victim of injury. In Augustus,
L’Heureux‑Dubé J. instead emphasized full compensation for moral
prejudice, the value of which is calculated based on a set of factors that
cover all the circumstances of the case. The adoption of such an approach is
not foreign to the nature of the prejudice. While it is impossible to predict
with any certainty the value of the future non‑pecuniary damage that may
be suffered by the immediate victim of bodily injury, this exercise becomes
easier when the extent of the moral prejudice suffered by the victim’s loved
ones is being considered after the fact. The mere fact that there is no cap
does not mean that no restrictions apply when such damages are being assessed.
As L’Heureux‑Dubé J. noted, this is an area in which moderation and
predictability must always be fostered (Augustus, at para. 48).
[32]
A review of Quebec case law subsequent to Augustus shows that
this call for moderation and predictability has been heard quite well, even
though the approach based on a consideration of all the circumstances of the
case necessarily implies some variability in the amounts awarded. Professor
Daniel Gardner, at pp. 668-71, looks at the compensation awarded from 1997 to
2009 for non‑pecuniary losses resulting from death. His study indicates
that the amounts awarded by Trudel J. at trial are well within the range
of acceptable compensation. That range (in 2009 dollars) is $12,400 to $79,700
for a parent who has lost a child aged 18 to 34 and $5,800 to $34,200 for the
loss of a sibling. As regards a grandparent, uncle or aunt of a child under
the age of 18, the decision under appeal serves as a precedent, since no
similar cases are identified by Professor Gardner. Based on this information,
the compensation awarded in this case seems reasonable, even if the
compensation levels for this type of prejudice remain conservative.
[33]
The amicus curiae submits that Trudel J.’s error lies
instead in his failure to view psychological prejudice as a form of compensable
prejudice distinct from solatium doloris and loss of moral support, even
though, like them, it is included in what is referred to as “moral prejudice”.
This argument is unfounded. It can be seen from Trudel J.’s reasons that
he looked at all the factors that have to be considered in determining the
appropriate compensation.
[34]
The varying and complex nature of human feelings makes it pointless to
try to artificially categorize the various aspects of moral prejudice. What is
truly important is that the moral prejudice actually suffered be compensated as
precisely and fully as possible. To this end, L’Heureux‑Dubé J. in Augustus
established a non‑exhaustive list of factors to be considered in
examining such a claim for compensation, namely the circumstances of the death,
the ages of the deceased and the parent, the nature and quality of the
relationship between the deceased and the parent, the parent’s personality and
ability to manage the emotional consequences of the death, and the effect of
the death on the parent’s life in light, inter alia, of the presence of
other children or the possibility of having others (Augustus, at
para. 50). Consideration of all these factors provides the judge with an
overview of the emotional impact of the victim’s death on each of the victim’s
loved ones so that full compensation can be provided for the resulting moral
prejudice, including psychological prejudice, to the extent that this type of
loss is compensable given its nature and complexity.
[35]
Contrary to the opinion of the amicus curiae, the fact that the
trial judge did not consider psychological prejudice separately from the other
aspects of the moral prejudice suffered by the appellants is not in itself an
error in principle that calls for intervention by this Court. Such
intervention is justified only where the trial judge’s analysis of the facts of
the case is wrong or defective in light of the factors set out in Augustus,
which is not the case here. In addition to the tragic circumstances of the
deaths and the family dynamics in the de Montigny family both before and after
the tragedy, Trudel J.’s analysis took into account the immediate and
subsequent emotional and psychological repercussions of the events on the lives
of Mr. de Montigny, Sandra and Karen. He noted, for example, that
Sandra and Karen had [translation]
“succeeded quite well in managing the emotional consequences of the deaths,
surviving the loss, and assimilating it” (para. 111), whereas their
father “had a hard time coping with the situation and moving on. . . .
Although more private, [his pain] was nonetheless as intense, painful and
traumatic as theirs. It will undoubtedly be hard for him to resign himself to
the loss of his daughter and two granddaughters” (para. 112). These
comments, though concise, satisfy me that Trudel J. properly considered
the psychological prejudice suffered by the appellants in determining the
compensation he awarded them.
[36]
Accordingly, in the absence of any palpable and overriding error, I find
that there is no reason for this Court to intervene to vary the amounts awarded
to the appellants as compensation for the moral prejudice they suffered as a
result of Martin Brossard’s actions. While those amounts may seem relatively
low given the tragic circumstances that led to them being awarded, it should be
borne in mind that the process of quantifying this type of prejudice to arrive
at an abstract monetary value remains governed by the evidence submitted and by
judicial practice in this area. As Pelletier J.A. noted, appellate judges
may not vary an amount awarded for moral prejudice at trial merely because they
themselves would have awarded a higher amount. Despite all the sympathy one
may feel for the de Montigny family, the applicable legal rules require that
this first ground of appeal be dismissed.
D. Award of Exemplary Damages Where the Perpetrator of the
Intentional Wrong Is Deceased
[37]
The appellants are also challenging the dismissal of the claim for
exemplary damages they brought against Martin Brossard’s succession, first in
their capacity as heirs of the successions of Liliane, Claudia and Béatrice and
then, on appeal, in their personal capacity. As already discussed, there were
two reasons why that claim was dismissed. First, relying on a line of judicial
and scholarly authority that refuses to recognize the autonomous nature of
exemplary damages, the judges below found that the fact that compensatory
damages could not be awarded to the victims’ successions in this case was an
insurmountable obstacle to the admissibility of a claim for exemplary damages
under s. 49 of the Charter. As well, both the Superior Court and
the Court of Appeal stressed that the punitive and deterrent effects of
exemplary damages would be absent in this case because the wrongdoer had killed
himself immediately after committing his acts. We shall now see that neither
of these reasons stands up to analysis and that this aspect of the appellants’
appeal is well founded.
(1)
Autonomous Nature of Exemplary Damages
[38]
Ever since this Court rendered its three decisions on compensatory and
exemplary damages under the Charter (Augustus, St‑Ferdinand,
Béliveau St‑Jacques), there has been an ongoing controversy about
whether the latter are autonomous of the former (for a summary of the debate,
see Claude Dallaire, “L’évolution des dommages exemplaires depuis les décisions
de la Cour suprême en 1996: dix ans de cheminement”, in Développements
récents en droit administratif et constitutionnel (2006), vol. 240,
185). The arguments on each side basically mirror those of the majority
and minority judges in Béliveau St‑Jacques, in which the central
issue was whether the victim of an industrial accident who had received
compensation under the Act respecting industrial accidents and occupational
diseases, R.S.Q., c. A‑3.001 (“AIAOD”), could also bring
a civil liability action against the person who had caused prejudice to the
victim.
[39]
To determine whether an action for exemplary damages under s. 49,
para. 2 of the Charter was a civil liability action within the
meaning of s. 438 of the AIAOD, Gonthier J., for the majority,
considered the nature of and basis for such an action. He concluded from his
analysis that the action remained subject to the general principles of civil
liability and therefore incidental in nature. Its recognition presupposed the
admissibility and success of an action for compensatory damages. In a
frequently quoted passage, he provided the following explanation:
Such an action can only be incidental to a
principal action seeking compensation for moral or material prejudice. The
second paragraph of s. 49 clearly states that in case of unlawful and
intentional interference with a protected right, “the tribunal may, in
addition, condemn the person guilty of it to exemplary damages” (emphasis
added). This wording clearly shows that, even if it were admitted that an
award of exemplary damages is not dependent upon a prior award of compensatory
damages, the court must at least have found that there was an unlawful
interference with a guaranteed right. Some wrongful conduct that gives rise to
civil liability will therefore be identified and further consideration given to
the intention of the person responsible. It is the combination of unlawfulness
and intentionality that underlies the decision to award exemplary damages. The
necessary connection with the wrongful conduct that gives rise to civil
liability leads one to associate the remedy of exemplary damages with the
principles of civil liability. [Emphasis in original; para. 127.]
[40]
Gonthier J.’s position on this question was criticized by L’Heureux‑Dubé J.,
who, in dissent, vigorously defended the position that exemplary damages are
autonomous. In her view, “the Charter differs from the general law with
respect to exemplary damages in that it establishes a remedy that is
autonomous and distinct from compensatory remedies” (para. 26
(emphasis in original)). In her opinion, the textual argument drawn from the
interpretation of the words “in addition” in s. 49, para. 2, on which
Gonthier J. had relied in part to find that exemplary damages could not be
dissociated from compensatory damages, would mean that “a court can not only
award compensatory damages but can ‘in addition’, or equally, as well,
moreover, also . . ., grant a request for exemplary damages” (para. 62
(emphasis in original)). According to L’Heureux‑Dubé J., the latter
type of damages is therefore not dependent on the former. However, this
autonomy is partially limited by the requirement that evidence of all the
constituent elements (fault, prejudice, causal connection) of liability within
the meaning of the Civil Code of Québec be presented in accordance with
general legal principles.
[41]
Some authors believe that the specific context of Béliveau St‑Jacques,
which had to do with the public compensation system for employment injuries,
and the language used by Gonthier J. in the above passage make this aspect
of the judgment a [translation]
“cautious obiter dictum” (J.‑L. Baudouin and
P. Deslauriers, La responsabilité civile (7th ed. 2007),
vol. I, at p. 397). These factors are said to explain the subsequent
vacillation in the Quebec courts with regard to the autonomous nature of
exemplary damages (for a list of contradictory Quebec decisions, see Baudouin
and Deslauriers, at p. 398, notes 304‑6; Gardner, at p. 161,
notes 258‑59; Dallaire, at pp. 212 et seq.). Authors
themselves are divided on this issue, since some have embraced the reasoning of
the majority (Gardner, at p. 161) while others have expressed reservations
about that reasoning (Baudouin and Deslauriers, at p. 398; Dallaire, at
p. 210; Pierre Pratte, “Les dommages punitifs: institution autonome et
distincte de la responsabilité civile” (1998), 58 R. du B. 287, at
pp. 372 et seq.).
[42]
The solution adopted by L’Heureux‑Dubé J. seems in
fact to be the appropriate one in cases where, as here, the imperative of
preserving government compensation systems is not part of the legal context.
As we have seen, Béliveau St‑Jacques dealt specifically with the
interaction between the AIAOD, a provincial statute that separates
claims by victims of industrial accidents from the general system of civil
liability, and the Charter. As Gonthier J. noted, the AIAOD
results from a social compromise whereby workers waive the possibility of
obtaining full compensation by way of a civil action while employers have to
provide partial compensation in the event of an accident (Béliveau St‑Jacques,
at para. 109). By its very nature, such a complete and closed system,
detached from the concept of fault or intentional acts, excludes the existence
of a parallel system of liability that would hypothetically be based on
s. 49 of the Charter. Since he was concerned about the long‑term
viability of that public system, Gonthier J. was probably seeking to
maintain its financial and structural stability by ensuring that the
prohibition against bringing civil proceedings against employers contributing
to the system remained effective. His comments must therefore
be understood in that context.
[43]
One might question Gonthier J.’s interpretation of the expression
“in addition”. Its meaning instead seems to be the one given to it by
L’Heureux‑Dubé J. Gonthier J. himself acknowledged the
possibility that an award of exemplary damages might not be dependent upon a
prior award of compensatory damages in certain contexts. Outside the context
of public compensation systems as in Béliveau St‑Jacques, the
majority and minority positions seem to tend toward unqualified recognition of
the need to establish the existence of the constituent elements of civil
liability under the general law.
[44]
As noted by L’Heureux‑Dubé J. in Béliveau St‑Jacques
(see, in particular, paras. 25 et seq.), the objectives of an
action under s. 49 necessarily overlap with those of an action in damages
based on the civil liability rules of the Civil Code of Québec. The
concept of an unlawful act, on which s. 49 is based, often coincides with
the concept of civil fault. As a result, in such situations, the compensation
available under these two systems is combined and cannot be awarded
separately. Otherwise, there would be duplicate compensation for the same
acts. However, the remedies are not always perfectly coextensive. Because of
the particular purpose of the remedy it provides for, s. 49, para. 2
can apply to acts and conduct that do not correspond to the concept of civil
fault and thus do not fall within the scope of Quebec’s general civil liability
system. The autonomy of this remedy emerges from both the wording of
s. 49 and the distinct purposes served by the Charter’s implementation
as well as from the need to ensure that the Charter has all the
flexibility required for the development of remedies suited to concrete
situations.
[45]
Therefore, it is my view that the majority opinion in Béliveau
St‑Jacques has been given too broad a scope. That opinion excluded
an action under s. 49, para. 2 only in cases involving public
compensation systems, such as the system applicable to employment injuries in
Quebec. Outside that context, there is no reason not to recognize the autonomous
nature of exemplary damages and thus give this remedy the full scope and
flexibility that its incorporation into the Charter demands. I note
that the Charter’s quasi‑constitutional status means that it
prevails over general legal rules in the Quebec normative order. If the
autonomy of the right to exemplary damages conferred by the Charter is
denied by imposing on those asserting it the additional burden of first proving
that they are entitled to bring an action that they may not necessarily wish or
be able to bring, this amounts to making the implementation of Charter
rights and freedoms subject to the rules applicable to civil law actions. There is no justification for maintaining this obstacle.
[46]
For these reasons, the fact that no compensatory damages were awarded in
the instant case does not in itself bar the claim for exemplary damages made by
the appellants in their capacity as heirs of the successions of Liliane,
Claudia and Béatrice. In my opinion, that claim was admissible. However, as I
have already stated, according to the judgments of the Court of Appeal and the
Superior Court, the absence of compensatory damages was only one of two
obstacles to an award of exemplary damages, the second being that there was no
point in punishing or deterring a wrongdoer who had died after committing his
acts. I shall therefore consider this question before determining the
appellants’ rights.
(2)
Objectives of Exemplary Damages
[47]
While compensatory damages are awarded to compensate for the
prejudice resulting from fault, exemplary damages serve a different purpose.
An award of such damages aims at expressing special disapproval of a person’s
conduct and is tied to the judicial assessment of that conduct, not to the
extent of the compensation required for reparation of actual prejudice, whether
monetary or not. As Cory J. stated:
Punitive
damages may be awarded in situations where the defendant’s misconduct is so
malicious, oppressive and high‑handed that it offends the court’s sense
of decency. Punitive damages bear no relation to what the plaintiff should
receive by way of compensation. Their aim is not to compensate the plaintiff,
but rather to punish the defendant. It is the means by which the jury or judge
expresses its outrage at the egregious conduct of the defendant.
(Hill v. Church of Scientology of
Toronto, [1995] 2 S.C.R. 1130, at para. 196)
[48]
In Quebec law, the system of exemplary damages remains exceptional in
nature. Article 1621 C.C.Q. states that such damages may be
awarded only where this is provided for by law. As we have seen, the Charter
so provides by allowing exemplary damages to be awarded in cases involving
unlawful and intentional interference with the rights and freedoms it
guarantees. Exemplary damages can also be awarded under certain other statutes
of particular social importance, including the Consumer Protection Act,
R.S.Q., c. P‑40.1, the Act respecting the Régie du logement,
R.S.Q., c. R‑8.1, and the Tree Protection Act, R.S.Q.,
c. P‑37.
[49]
Because of the exceptional nature of this right, the Quebec
courts have so far been quite strict in giving effect to the preventive purpose
of exemplary damages under art. 1621 C.C.Q. by using them only for
punishment and deterrence (both specific and general) of conduct that is
considered socially unacceptable (Béliveau St‑Jacques, at
paras. 21 and 126; St‑Ferdinand, at para. 119). An
award of exemplary damages seeks to punish a person who commits an unlawful act
for doing so intentionally and to deter that person, and members of society
generally, from repeating the act by condemning it as an example. However,
both the trial judge and the judges of the Court of Appeal denied the
appellants’ claim for exemplary damages, noting that [translation] “the aspect of deterrence . . . no
longer applies because Martin is deceased” (Superior Court’s reasons, at
para. 81) and that [translation]
“assuming that a message must be sent to anyone who might be tempted to do
something similar to what Martin Brossard did . . . such a warning
would have no real impact. . . . The level of despair required to
consider such extreme action means that it is illusory to think that any
deterrent effect can result from an award of punitive damages” (Court of
Appeal’s reasons, at para. 37).
[50]
It is too narrow a view of the role of punitive damages to say that
there is no point in awarding them where the person who committed an unlawful
act is deceased. That view does not take account of the social utility of this
form of judicial intervention, which requires the courts to take a functional
approach that can help achieve all aspects of the preventive purpose assigned
to such damages by the legislature.
[51]
In this regard, it is interesting to look at the functions of exemplary
damages in the common law, which are broader and which encompass but also go
beyond punishment and deterrence. As far back as Wilkes v. Wood (1763),
Lofft. 1, 98 E.R. 489 (K.B.), exemplary damages were seen as having three
functions, namely punishment, deterrence and denunciation:
[A] jury have it in their power to give
damages for more than the injury received. Damages are designed not only as a
satisfaction to the injured person, but likewise as a punishment to the guilty,
to deter from any such proceeding for the future, and as a proof of the
detestation of the jury to the action itself. [pp. 498‑99]
Since that time,
there has been “a substantial consensus that coincides with Lord Pratt C.J.’s
view . . . that the general objectives of punitive damages are
punishment (in the sense of retribution), deterrence of the wrongdoer and
others, and denunciation” (Whiten v. Pilot Insurance Co., 2002 SCC 18,
[2002] 1 S.C.R. 595 (“Whiten”), at para. 68). This was what
Binnie J. held following a comparative survey of the experience in other
common law jurisdictions as regards exemplary damages. Exemplary damages were
found to have the same function under s. 24(1) of the Canadian Charter
of Rights and Freedoms in this Court’s recent decision in Ward (Vancouver
(City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28).
[52]
As we have seen, denunciation was described by Cory J. as “the
means by which the jury or judge expresses its outrage at the egregious conduct
of the defendant” (Hill, at para. 196). That outrage is expressed
through an award of a substantial or symbolic amount of money, often
accompanied by a declaration, which together are intended to convey the opinion
of the justice system concerning the particularly reprehensible nature of the
conduct in question. In this sense, denunciation constitutes an objective
serving both the retributive and the utilitarian functions of the system of
exemplary damages. The retributive function is served by the opprobrium
attaching to the person of the wrongdoer, which is in itself a form of
punishment for the wrongdoer’s conduct. The utilitarian function for its part
is served by the preventive effect that such damages can have on the type of
conduct involved, which benefits society as a whole. Denunciation also serves
a declaratory function, which it shares, to a lesser degree, with the general
deterrent objective of exemplary damages. While the objectives of punishment,
deterrence and denunciation intersect to some extent in these functions, each
of them covers a different aspect of the role played by exemplary damages and
can therefore, in itself, justify an award of such damages.
[53]
Since denunciation contributes to the preventive objective of
art. 1621 C.C.Q. just as much as punishment and deterrence, I see
no reason to refuse to recognize denunciation as an objective of exemplary
damages in Quebec civil law. This approach is all the more appropriate where
the issue is respect for the rights and freedoms guaranteed by the Charter,
a document that expresses the most fundamental values of Quebec society, as
stated forcefully in its preamble.
[54]
However, care must be taken not to give exemplary damages a subsidiary
criminal justice role. The fact that Martin Brossard cannot be punished for
his actions by the criminal justice system is not a determining factor in the
analysis. The existence of a prior criminal conviction is, at most, one of the
factors to be considered in determining the quantum of exemplary damages, as explained
by the Ontario Law Reform Commission in a report on such damages:
. . .
it would be incorrect to view punitive damages as a systematic response to the
shortcomings of criminal law. The law of punitive damages is applicable to a
limited range of criminal conduct only, and it is applicable only in a limited
way. The limits are not always consistent with a general theory of tort as a
supplement to criminal law. The law of punitive damages intrudes not on to the
general criminal law, but only on to its exceptionally objectionable breaches.
It is a requirement for punitive damages not only that the defendant commit a
tort advertently, but that the conduct be exceptional. Moreover, punitive
damages are not an inducement to the general citizenry to enforce the criminal
law for profit. The claim may be brought only by the victim of a tort, and
damages may be awarded only in reference to the conduct that affected the
victim.
(Ontario Law Reform Commission, Report
on Exemplary Damages (1991), at pp. 32‑33)
In short, while
“punitive damages straddle the frontier between civil law (compensation) and
criminal law (punishment)” (Whiten, at para. 36), it must be borne
in mind that each of these systems has its own role to play. One should not be
substituted for the other where one of them is unable to perform its specific
role, as in this case.
[55]
In the case before us, the particularly serious and horrific nature of
the acts committed by Martin Brossard before he took his own life cannot be
disregarded. He killed a woman and young children whom he was supposed to love
and protect. Awarding exemplary damages seems entirely appropriate in the
circumstances to denounce those acts and affirm the importance of the right to
life.
[56]
At this point in the analysis, only one issue remains, namely whether
the appellants are entitled to exemplary damages.
(3)
Right to Exemplary Damages
[57]
Section 49, para. 2 of the Charter sets out two
conditions for awarding exemplary damages: the act in question must be both
unlawful and intentional. Since I have concluded that the absence of
compensatory damages does not preclude the payment of exemplary damages, I
shall first consider whether the appellants are entitled to such damages in
their capacity as heirs of the successions of Liliane, Claudia and Béatrice. I shall then look at their personal claims.
(a)
Action by the Successions
[58]
To be entitled to exemplary damages, the successions must first prove
unlawful interference with a right held by Liliane, Claudia and Béatrice. The
appropriate approach was explained as follows by L’Heureux‑Dubé J.
in St‑Ferdinand:
To find that there has been unlawful interference, it must be shown
that a right protected by the Charter was infringed and that the
infringement resulted from wrongful conduct. A person’s conduct will be
characterized as wrongful if, in engaging therein, he or she violated a
standard of conduct considered reasonable in the circumstances under the
general law or, in the case of certain protected rights, a standard set out in
the Charter itself . . . . [para. 116]
(See also Association des
professeurs de Lignery v. Alvetta‑Comeau, [1990] R.J.Q. 130 (C.A.).)
[59]
In the present case, there can be no doubt about the unlawfulness
of the interference, which was also a civil fault within the meaning of the law
of civil liability. The affirmation of the right to life in s. 1 of the Charter
shows the fundamental importance of that right in Quebec society. The
murders of Liliane, Claudia and Béatrice by Martin Brossard, whose civil
liability is not in issue, were the ultimate interference with their right to
life. The first criterion under s. 49 is therefore
satisfied.
[60]
The second criterion involves determining whether the
interference was intentional. At this stage, intentionality refers not to the
intent to commit the fault but rather to the intent to cause the result
thereof. None of the parties questioned this criterion. In the context of the
Charter, the result in question is unlawful interference with a
protected right (St‑Ferdinand, at para. 118). In concrete
terms, to satisfy this criterion, the appellants had to show that Martin
Brossard intended to deprive his victims of life at the time he acted. This
second criterion is also clearly satisfied. Before killing himself, Martin
Brossard wrote a letter expressing his anger and sadness over the breakup of
his family as well as his lethal intentions. That letter
reads in part as follows:
[translation]
six months ago, Liliane took from me all my dreams, everything I’d worked hard
for. After completing our family, I will never accept that I’m no longer part
of your plans one year after our second daughter and our dream house. You’ve taken
all my pride. Like your arrogance and your indifference, I don’t think it was
the right attitude to adopt. The same thing for the house. We always said
we’d sell the house if we separated, but you lied to me about that too. Do you
think I would have agreed to share my place in that house and especially in my
bedroom? No, I won’t share my wife and especially not my children. A
family is a father and a mother. Fine, you don’t want that, Six months ago,
you made a choice. You didn’t want me to come back. Now it’s my turn. I’m
pigheaded too. Did I tell you it’s not human to do this to someone? I didn’t
have the right to do what I did, but neither did you. [Emphasis in original;
A.R., vol. II, at p. 160.]
This note leaves no
doubt about the intentional nature of the interference with the lives of
Liliane, Claudia and Béatrice.
[61]
For these reasons, the successions of Liliane de Montigny and Claudia
and Béatrice Brossard should be awarded exemplary damages for unlawful and
intentional interference with their right to life. Awarding such damages
conveys the opinion of the justice system concerning the seriousness of these
acts and the need to denounce them as a violation of society’s most fundamental
values.
[62]
Since Martin Brossard’s succession is insolvent, I consider a symbolic
lump sum of $10,000, payable to the three successions and to be shared among
them equally, sufficient to achieve the objective of denunciation in this
case. Although moderate, this amount, which is not purely symbolic, emphasizes
the gravity attached by the justice system to unlawful interference with the
three victims’ right to life. I would also note that it is not a matter here
of punishing or deterring the wrongdoer, who is deceased, but of setting an
amount that sends a message of social denunciation.
[63]
Before ending on this point, I should say a few words about whether the
right of action for exemplary damages under the Charter may be
transmitted to the victims’ heirs. Insofar as we have found that the victims’
actions for exemplary damages are admissible, the Quebec law of succession
allows the rights of action to be transmitted to their heirs.
Article 625, para. 3 C.C.Q. provides that the heirs of a
victim of unlawful interference are seised of the right of action resulting
from that breach. The heirs may therefore bring this action by the
successions:
625. The heirs are seised, by
the death of the deceased or by the event which gives effect to the legacy, of
the patrimony of the deceased, subject to the provisions on the liquidation of
successions.
. . .
The heirs are seised of the rights of action of the deceased against
any person or that person’s representatives, for breach of his personality
rights.
(See Jacques Beaulne, Droit des successions (4th
ed. 2010), based on the work of Germain Brière, at pp. 63‑64.)
Moreover,
art. 1610 C.C.Q. confirms that the right to damages, including
punitive damages, resulting from a breach of a personality right may be
transmitted to a person’s heirs:
1610. The right of a creditor
to damages, including punitive damages, may be assigned or transmitted.
This rule does not apply where the right of the creditor results
from a breach of a personality right; in such a case, the right of the creditor
to damages may not be assigned, and may be transmitted only to his heirs.
(See Baudouin and Deslauriers, at
pp. 361 and 414.)
[64]
In short, there is no doubt that the appellants, in their capacity as
heirs, are entitled to receive the amount determined above.
(b) Personal
Action for Exemplary Damages
[65]
At this stage, the question of whether the appellants are personally
entitled to exemplary damages is purely academic. The awarding of a lump sum
of exemplary damages to the three successions is sufficient to fulfil the
objective of denunciation of this form of damages, which is the only one
relevant here, as I noted earlier. Unlike compensatory damages, exemplary
damages attach not to the prejudice suffered by the victims but to the person
of the wrongdoer and the wrongdoer’s conduct, which the court seeks to punish,
deter or denounce. However, since the amicus curiae raises this issue
in his factum, I consider it necessary to discuss it briefly.
[66]
In the circumstances of this case, the appellants could have
brought two types of personal actions, one as the direct victims of prejudice
and one as the indirect victims of interference with the right to life of
Martin Brossard’s victims. In my opinion, both actions would
have failed.
(i)
Action as Direct Victims
[67]
First of all, to be entitled to exemplary damages as direct
victims of prejudice, the appellants would have had to satisfy the twin
criteria set out in s. 49, para. 2 of the Charter. The first
criterion, unlawful interference, is not problematic. In the section on
compensatory damages, we saw that the appellants are still suffering the
emotional and psychological repercussions of Martin Brossard’s wrongful acts.
Those repercussions are an infringement of their right to personal
inviolability alone under s. 1 of the Charter . As this Court held
in St‑Ferdinand, the concept of inviolability understood in this
way is not limited to physical inviolability alone but also includes
psychological, moral and social inviolability, provided that the interference
is “more than . . . fleeting” (St‑Ferdinand, at
para. 97). That is the case here.
[68]
An action by the appellants as direct victims would instead have
run into problems with the second criterion, intentional interference. As I
have said, in the context of the Charter, intentionality applies not to
the fault but to its result. To succeed on this point, the appellants would
have had to show that Martin Brossard intended to interfere with their
psychological inviolability when he committed his acts. Simple negligence or
recklessness as to the consequences of those acts would not have satisfied this
criterion. L’Heureux‑Dubé J. was very clear in
this regard:
. . .
there will be unlawful and intentional interference within the meaning of the
second paragraph of s. 49 of the Charter when the person who
commits the unlawful interference has a state of mind that implies a desire or
intent to cause the consequences of his or her wrongful conduct, or when that
person acts with full knowledge of the immediate and natural or at least
extremely probable consequences that his or her conduct will cause. This test
is not as strict as specific intent, but it does go beyond simple negligence.
Thus, an individual’s recklessness, however wild and foolhardy, as to the
consequences of his or her wrongful acts will not in itself satisfy this test.
(St‑Ferdinand, at
para. 121)
[69]
Here, there is no reason to believe that Martin Brossard intended to
interfere with the appellants’ psychological inviolability or even that he
actually thought about the consequences of his actions for them. The
appellants are not mentioned in the note he left setting out his motivations.
The note indicates instead that all the rage and sorrow that led Martin
Brossard to commit his acts arose out of his breakup with Liliane and the fact
that she had started seeing another man. The connection between his feelings
and the other members of the de Montigny family remains too tenuous to justify
awarding exemplary damages to them. The impact of the murders of Liliane,
Claudia and Béatrice on them is only cruel collateral damage in this tragedy.
Such a personal action by the appellants could not have succeeded.
(ii)
Action as Indirect Victims
[70]
The other way the appellants personally claimed exemplary damages was as
indirect victims. Indeed, the Court of Appeal gave them leave to amend their
motion to institute proceedings in order to make such a claim. It is
sufficient to note that the admissibility of this claim raised insurmountable
problems. If the appellants could not claim exemplary damages as direct
victims, the intentionality required by s. 49 of the Charter also
prevented them from doing so as indirect victims, since such victims could not
have been directly targeted by the wrongdoer. In any event, the application of
the intentionality requirement makes any claim for exemplary damages presented
by a claimant who is merely an indirect victim inadmissible.
V. Conclusion
[71]
For the reasons set out above, I would allow the appeal in part with
costs throughout and would award the appellants, in their capacity as heirs of
the successions of Liliane de Montigny and Claudia and Béatrice Brossard,
$10,000 in exemplary damages plus interest at the legal rate from the date the
proceedings were instituted (art. 1618 C.C.Q.).
Appeal
allowed in part, with costs.
Solicitor for the
appellants: Jean‑Félix Racicot, Mont‑St‑Hilaire,
Quebec.
Solicitor for the
intervener: Attorney General of Quebec, Québec.
Solicitor appointed by
the Court as amicus curiae: Sébastien Grammond, Ottawa.
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