Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand [1996] 3 S.C.R. 211: Personal dignity -- Illegal strikes by employees of hospital for mentally disabled -- Trial judge concluding that patients suffered prejudice in form of temporary discomfort -- Whether there was interference with their right to personal dignity -- Meaning of "dignity"

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Evidence -- Class action -- Applicable rules of evidence -- Proof by presumptions of fact -- Whether Code of Civil Procedure provisions relating to class actions have changed rules of evidence applicable in civil matters.

Damages -- Moral prejudice -- Evaluation -- Role of functional approach in evaluating moral prejudice in Quebec civil law -- Method of calculating moral damages.

Civil rights -- Personal inviolability -- Illegal strikes by employees of hospital for mentally disabled -- Trial judge concluding that patients suffered prejudice in form of temporary discomfort -- Whether there was interference with their right to personal inviolability -- Meaning of "inviolability" -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 1.

Civil rights -- Personal dignity -- Illegal strikes by employees of hospital for mentally disabled -- Trial judge concluding that patients suffered prejudice in form of temporary discomfort -- Whether there was interference with their right to personal dignity -- Meaning of "dignity" -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 4.

Civil rights -- Personal dignity -- Remedy -- Exemplary damages -- Illegal strikes by employees of hospital for mentally disabled -- Trial judge concluding that patients suffered prejudice in form of temporary discomfort -- Interference with patients' dignity -- Whether exemplary damages should be awarded -- Meaning of "unlawful and intentional interference" -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 4, 49.

The unionized employees of a hospital for the mentally disabled participated in illegal strikes. The Public Curator, acting on behalf of the patients in the hospital during the strikes, instituted a class action against the appellants. The trial judge concluded that the appellants had committed a civil fault by provoking, inciting or participating in the illegal strikes and that the patients had suffered prejudice. After an exhaustive review of the evidence, the judge concluded that the representative of the group covered by the class action had the necessary capacity to suffer moral prejudice and that she had suffered discomfort. With respect to the other members of the group, the judge noted that the evidence established that they had suffered substantially the same prejudice as the group's representative. The judge condemned the appellants to pay $1,750, as compensatory damages, to each member of the group covered by the class action, with the exception of the patients in the transit unit and the medical-surgical unit. He declined, however, to award exemplary damages under the second paragraph of s. 49 of the Charter of Human Rights and Freedoms since, in his view, the nature of the prejudice did not make this remedy available. The Court of Appeal affirmed the trial judge's decision with respect to compensatory damages. However, it ordered the appellants, jointly and severally, to pay $200,000 to the patients as exemplary damages. The majority of the court concluded that the appellants had unlawfully interfered with the rights to inviolability and dignity guaranteed to the patients by ss. 1 and 4 of the Charter and that this interference had been intentional within the meaning of the second paragraph of s. 49.

Held: The appeal should be dismissed.

(1) Rules of evidence in class actions

The provisions of Book Nine of the Code of Civil Procedure relating to class actions have not changed the rules of evidence in civil matters in Quebec. Like the other rules of evidence, proof by presumptions of fact, provided they are sufficiently serious, precise and concordant, is therefore applicable to this type of action. Moreover, art. 1241 C.C.L.C. does not change the rules of evidence in relation to class actions. This provision deals only with the consequence of the judgment on a class action in terms of the presumption of res judicata.

In this case, it cannot be concluded that the trial judge relied on the statutory provisions applicable to class actions to create a legal presumption of similarity in assessing the moral prejudice suffered by the patients. Rather, he sought to find an element of damage common to everyone, and only after reviewing the evidence as a whole did he find enough evidence to be able to infer that there were serious, precise and concordant presumptions that all the patients had at least suffered discomfort. Besides relying on presumptions of fact, he also took into account the evidence as a whole, including the testimony, inter alia that of expert witnesses, in reaching the conclusion that all the elements of civil liability (fault, prejudice and causal connection) had been established on the balance of probabilities. Since the trial judge committed no error of law and no error in the conclusions he drew from the evidence, the Court of Appeal was correct not to intervene.

(2) Moral prejudice

Quebec civil law supports the conception that the right to compensation for moral prejudice is not conditional on the victim's ability to profit or benefit from monetary compensation. This objective characterization of moral prejudice is more consistent with the fundamental principles of civil liability than the subjective conception. In Quebec, the primary function of the rules of civil liability is to compensate for prejudice. This objective requires that there be compensation for the loss suffered because of the wrongful conduct, regardless of whether the victim is capable of enjoying the substitute pleasures. In order to characterize the nature of the moral prejudice for purposes of compensation, the purely subjective conception thus has no place in the civil law, since the reason that damages may be recovered is not because the victim may benefit from them, but rather because of the very fact that there is a moral prejudice. The victim's condition or capacity to perceive are irrelevant in relation to the right to compensation for the moral prejudice.

With respect to the evaluation of the moral prejudice, although the functional approach does not apply in Quebec civil law to the determination of the right to moral damages, it is nonetheless relevant, together with the conceptual and personal approaches, when it comes to the calculation of such damages. In Quebec civil law, these three approaches to calculating the amount necessary to compensate for moral prejudice apply jointly and thereby encourage a personalized evaluation of the moral prejudice. With respect to the calculation of compensation, the trial judge's decision was sound. He took into account a panoply of factors that included all of the conceptual, personal and functional approaches, and the quantum of the moral damages he awarded was the result of a meticulous examination of the evidence. Since the appellants did not demonstrate any error in this regard, the Court of Appeal rightly declined to intervene to vary the trial judgment with respect to this head of damages.

(3) Exemplary damages

The prejudice in the nature of temporary discomfort suffered by the hospital's patients, which the trial judge characterized as "minor psychological distress", does not amount to interference with the right to personal inviolability guaranteed by s. 1 of the Charter. The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold. The interference must affect the victim's physical, psychological or emotional equilibrium in something more than a fleeting manner. The evidence does not establish in this case that the patients suffered any permanent prejudice giving rise to psychological or medical sequelae.

Although the discomfort suffered by the patients was transient, however, it constituted interference with the safeguard of their dignity, despite the fact that these patients might have had no sense of modesty. The right to the safeguard of personal dignity guaranteed in s. 4 of the Charter addresses interferences with the fundamental attributes of a human being which violate the respect to which every person is entitled. The right to personal dignity, unlike the concept of inviolability, does not require that there be permanent consequences in order for interference with that right to be found. In considering the situation of the mentally disabled, the nature of the care that is normally provided to them is of fundamental importance. The low level of awareness that some patients had of their environment may undoubtedly influence their own conception of dignity, but when dealing with a document such as the Charter, it is more important that we turn our attention to an objective appreciation of dignity and what that requires in terms of the necessary care and services. The numerous and varying inconveniences engendered by the illegal strikes not only constituted a moral prejudice under the general rules of civil liability, but also interfered with the right guaranteed by s. 4 of the Charter.

The second paragraph of s. 49 of the Charter provides that in case of unlawful and intentional interference with a right recognized by the Charter, a tribunal may condemn the person guilty of it to exemplary damages. There is unlawful interference with a right protected by the Charter where the infringement of that right results from wrongful conduct. A person's conduct will be characterized as wrongful if he or she violates 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. For unlawful interference to be characterized as intentional, the result of the wrongful conduct must be desired. There is thus unlawful and intentional interference within the meaning of the second paragraph of s. 49 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. In addition to being consistent with the wording of s. 49, this interpretation of the concept of "unlawful and intentional interference" is in keeping with the preventive and deterrent role of exemplary damages, which suggests that only conduct the consequences of which were either intended or known by the person who committed the unlawful interference, and which therefore could have been avoided, should be punished by an award of such damages. In this case, the Court of Appeal was correct in concluding that the interference with the right to personal dignity was "unlawful" since the prejudice suffered by the patients was caused by conduct in the nature of a fault within the meaning of art. 1053 C.C.L.C., and "intentional" because those responsible for it intended the consequences of the fault they committed. The appellants backed the illegal strikes and, apparently, on the evidence as a whole, orchestrated and incited them. The pressure that the appellants wanted to bring to bear on the employer inevitably involved disrupting the services and care normally provided to the hospital's patients, and necessarily involved intentional interference with their dignity.

Even where unlawful and intentional interference exists, the award and the quantum of exemplary damages remain discretionary. However, this discretion is not absolute. It is guided by various factors that have been developed by the courts and are now codified in art. 1621 C.C.Q. In this case, the Court of Appeal's decision to award exemplary damages is consistent with the established criteria. With respect to the calculation of the appropriate amount, since the Court of Appeal committed no error of principle, the quantum of the joint and several award of exemplary damages must be upheld. The punitive and deterrent function of exemplary damages does not prevent the appellants from being condemned jointly and severally to pay them.

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