Date: 20000908
Docket: A-381-98
(T-192-95)
Ottawa, Ontario, Friday, September 8, 2000.
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ERNEST CARON
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The appeal is allowed, the trial judgment reversed and, rendering the judgment which should have been rendered, the Court allows the action for damages by Mr. Caron and orders the defendant to play the plaintiff the sum of $983 with interest at the legal rate from the date of service of the action, plus the additional indemnity mentioned in art. 1619 of the Civil Code of Quebec.
The appellant will be entitled to costs at trial, which are assessed at $3,000, and to reimbursement of his disbursements on appeal, which are assessed at $500.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000908
Docket: A-381-98
(T-192-95)
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ERNEST CARON
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Hearing held by video teleconference
between Ottawa, Ontario and Sainte-Foy, Quebec on Thursday, September 7, 2000.
Judgment at Ottawa, Ontario on Friday, September 8, 2000.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
Date: 20000908
Docket: A-381-98
(T-192-95)
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN:
ERNEST CARON
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] I consider that this appeal from a decision published at (1998), 149 F.T.R. 34, should be allowed.
[2] The trial judge concluded that the respondent had been at fault and as the latter did not challenge this conclusion, the discussion on appeal dealt only with the assessment of damages.
[3] On the damages suffered by the appellant before the withdrawal of the offence report on October 18, 1994, the trial judge found that the $483 compensation paid by the respondent for loss of salary was "less than what he was entitled to" (para. 21 of the Reasons for Judgment), but concluded that he was not entitled to full compensation as he had failed to perform his duty to minimize damages.
[4] It appeared from the evidence and documents issued by the respondent herself that between the date of his suspension, April 5, 1994, and the date the offence report was withdrawn, October 18, 1994, there was nothing which the appellant, confined in his cell during working hours, could have done to minimize his damages.
[5] The appellant is accordingly entitled to full compensation for the loss of salary sustained between April 5 and October 18, 1994. The amount of this loss is $966. The respondent offered to pay half of this amount, but the offer was refused. Following this refusal, the respondent deposited $483 in the appellant's bank account. Mr. Caron is entitled to recover the other half, namely the amount of $483. Additionally, I consider that the appellant suffered general damages during this period of some seven months which I assess at $500. Finally, I set at $3,000 the amount of costs at trial to which Mr. Caron -- who was represented by counsel at the time -- is entitled.
[6] As to the damages sustained between the withdrawal of the offence report on October 18, 1994 and the appellant's return to work on September 15, 1997, the judge awarded nothing for the reason that as of October 18, 1994 "the plaintiff was obliged to look for another position, at level 2 if necessary, pending the outcome of his grievance and court action" (para. 22).
[7] It is clear that, like any other creditor, the appellant has an obligation to minimize the damages owed to him. This obligation is described by Laskin C.J. in Red Deer [1976] 2 S.C.R. 324">College v. Michaels, [1976] 2 S.C.R. 324, at 331, as follows:
| In short, a wronged plaintiff is entitled to recover damages for the losses he has suffered but the extent of those losses may depend on whether he has taken reasonable steps to avoid their unreasonable accumulation. |
and in La responsabilité civile, 5th ed., Cowansville, Yvon Blais, 1998, J.-L. Baudouin and P. Deslauriers note on p. 731 that the duty to minimize damages is in two parts, making a reasonable effort to find new employment in the same field of activity or a related field and not turning down offers of employment which are reasonable in the circumstances.
[8] The judge concluded that "[o]nly a desire to aggravate the situation and raise the stakes can explain why the plaintiff chose to stay in 'dead lock' from October 18, 1994 until September 15, 1997" (para. 22). In my view, this is a conclusion based on the evidence and one in which an appellate court should not intervene.
[9] The appeal should therefore be allowed and the trial judgment reversed. Rendering the judgment which should have been rendered, I would allow Mr. Caron's action for damages in the amount of $983 with interest at the legal rate from the date of service plus the additional indemnity mentioned in art. 1619 of the Civil Code of Quebec. I would award Mr. Caron costs at trial, which I would set at $3,000. Mr. Caron, who was no longer represented on appeal, should be entitled to the reimbursement of his costs on appeal, which I would set at $500 (including stenotyping costs of $232.45).
Robert Décary
J.A.
I concur.
J. Richard
C.J.
I concur.
Gilles Létourneau
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE No.: A-381-98
| STYLE OF CAUSE: ERNEST CARON V. THE QUEEN |
| PLACE OF HEARING: Ottawa, Ontario & Sainte-Foy, Quebec |
via video teleconference
DATE OF HEARING: September 7, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: Décary J.A. |
CONCURRED IN BY: The Chief Justice
Létourneau J.A.
APPEARANCES:
| Louis Sébastien FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Ernest Caron FOR HIMSELF
Donnacona, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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