Quebec (Public Curator) v.  Syndicat national des employés de l'hôpital St-Ferdinand

Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand
Collection
Supreme Court Judgments
Date
1996-10-03
Report
[1996] 3 SCR 211
Case number
24511
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Constitutional law
Evidence
Torts
Notes
SCC Case Information: 24511
Decision Content
Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211
The Syndicat national des employés de
l’hôpital St‑Ferdinand (C.S.N.), the
Fédération des affaires sociales (C.S.N.)
and the Confederation of National Trade Unions (C.N.T.U.) Appellants
v.
The Public Curator, Rémi Lussier, and the
Public Curator in the person of
Nicole Fontaine, in her capacity as
curator ex officio of Honorine Abel Respondents
and
The Attorney General of Quebec Mis en cause
Indexed as: Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand
File No.: 24511.
1996: May 2; 1996: October 3.
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.
Cases Cited
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Statutes and Regulations Cited
Act respecting health services and social services, R.S.Q., c. S‑4.2.
Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 1.
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, preamble, ss. 1 [repl. 1982, c. 61, s. 1], 4, 49.
Civil Code of Lower Canada, arts. 1053, 1056c [ad. 1956‑57, c. 16, s. 1; am. 1971, c. 85, s. 10; am. 1987, c. 98, s. 1], 1117, 1203, 1204, 1205, 1238, 1241 [am. 1978, c. 8, s. 47].
Civil Code of Québec, S.Q. 1991, c. 64, arts. 1457, 1474, 1621, 2803, 2811, 2846, 2848, 2849, 2860.
Code of Civil Procedure, R.S.Q., c. C‑25, arts. 46, 168(7), 1022, 1031, 1045.
Public Curatorship Act, R.S.Q., c. C‑80 [repl. 1989, c. 54, s. 198 (now R.S.Q., c. C‑81)].
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).
Authors Cited
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Brière de L'Isle, Georges. “La faute dolosive ‑‑ tentative de clarification”, D.1980.Chron.133.
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Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 2, 2e éd. Cowansville, Qué.: Yvon Blais, 1994.
Gardner, Daniel. L'évaluation du préjudice corporel. Cowansville, Qué.: Yvon Blais, 1994.
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Jutras, Daniel. “Pretium et précision” (1990), 69 Can. Bar Rev. 203.
Le Roy, Max. L'évaluation du préjudice corporel, 12e éd. Paris: Litec, 1993.
Mazeaud, Léon et Henri, et Jean Mazeaud. Leçons de droit civil, t. 2, 8e éd. par François Chabas. Paris: Éditions Montchrestien, 1991.
Ogus, A. I. “Damages for Lost Amenities: for a Foot, a Feeling or a Function?” (1972), 35 Modern L. Rev. 1.
Ontario. Law Reform Commission. Report on Exemplary Damages. Toronto: The Commission, 1991.
Perret, Louis. “De l'impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec” (1981), 12 R.G.D. 121.
Petit Robert 1. Paris: Le Robert, 1989, “dignité”, “intégrité”.
Planiol, Marcel, et Georges Ripert. Traité pratique de droit civil français, t. 6, 2e éd. Paris: L.G.D.J., 1952.
Roy, Pauline. “La difficile intégration du concept de dommages exemplaires en droit québécois”, dans Responsabilité civile et les dommages (en constante évolution). Toronto: Canadian Institute, 1990.
Roy, Pauline. Les dommages exemplaires en droit québécois: instrument de revalorisation de la responsabilité civile, 1995 (thèse de doctorat en droit, Université de Montréal, Montréal).
Royer, Jean‑Claude. La preuve civile, 2e éd. Cowansville, Qué.: Yvon Blais, 1995.
Starck, Boris. Obligations, vol. 1, 4e éd. par Henri Roland et Laurent Boyer. Paris: Litec, 1991.
Viney, Geneviève. L'indemnisation des victimes d'accidents de la circulation. Paris: L.G.D.J., 1992.
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APPEAL from a judgment of the Quebec Court of Appeal, [1994] R.J.Q. 2761, 66 Q.A.C. 1, dismissing the appeal and allowing in part the cross‑appeal from a judgment of the Superior Court, [1990] R.J.Q. 359. Appeal dismissed.
Clément Groleau and Thierry Bériault, for the appellants.
Denis Sauvé and Pierre Deschamps, for the respondents.
The judgment of the Court was delivered by
1. L’Heureux‑Dubé J. ‑‑ This appeal raises a number of questions concerning the recovery of damages in respect of delictual liability in Quebec, in the context of a class action. More precisely, the issues are (1) what rules of evidence apply to the class action scheme instituted under Book Nine of the Code of Civil Procedure, R.S.Q., c. C‑25 ("C.C.P."), (2) what role the functional approach plays in evaluating moral prejudice in Quebec civil law, and (3) what is meant by the expressions "inviolability", "dignity" and "intentional interference", as they appear in the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (the "Charter"), for the purposes of the exemplary damages contemplated by the Charter.
2. As a preliminary matter, I shall reproduce the relevant statutory provisions and review the facts and judgments.
I. Applicable Statutory Provisions
3. The provisions that are relevant to the question of the rules of evidence that apply to class actions are, first, arts. 1205, 1238 and 1241 of the Civil Code of Lower Canada ("C.C.L.C."), which provide:
1205. Proof may be made by writings, by testimony, by presumptions, by the confession of the party or by his oath, according to the rules declared in this chapter and in the manner provided in the Code of Civil Procedure.
1238. Presumptions are either established by law or arise from facts which are left to the discretion of the courts.
1241. The authority of a final judgment (res judicata) is a presumption juris et de jure; it applies only to that which has been the object of the judgment, and when the demand is founded on the same cause, is between the same parties acting in the same qualities, and is for the same thing as in the action adjudged upon.
In the case of a class action provided for by Book Nine of the Code of Civil Procedure, the judgment deciding questions of law or of fact dealt with collectively has authority as res judicata between the parties and all members of the group who have not requested exclusion from the group.
These provisions must be analysed in the light of arts. 1031 and 1045 C.C.P., in the section on class actions, which read as follows:
1031. The court orders collective recovery if the evidence produced enables the establishment with sufficient accuracy of the total amount of the claims of the members; it then determines the amount owed by the debtor even if the identity of each of the members or the exact amount of their claims is not established.
1045. The court may, at any stage of the proceedings in a class action, prescribe measures designed to hasten their progress and to simplify the proof, if they do not prejudice a party or the members; it may also order the publication of a notice to the members when it considers it necessary for the preservation of their rights.
4. The issue of exemplary damages brings in ss. 1 , 4 and 49 of the Charter, which read as follows:
1. Every human being has a right to life, and to personal security, inviolability and freedom.
He also possesses juridical personality.
4. Every person has a right to the safeguard of his dignity, honour and reputation.
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
II. Factual Background
5. The events that gave rise to this class action occurred in October and November 1984. The Hôpital St‑Julien (the "Hospital"), a hospital centre for the mentally disabled located in the village of St‑Ferdinand d’Halifax, employed 700 unionized persons who were members of the appellant Syndicat national des employés de l’hôpital St‑Ferdinand (the "Union"), which is affiliated with the Confederation of National Trade Unions ("CNTU") and the Fédération des affaires sociales ("FAS"). As a way of putting pressure on their employer to prevent it from proceeding with a staff reorganization, the Hospital employees participated in illegal strikes which lasted a total of 33 days.
6. As a result of these walkouts, the 703 patients in the Hospital were deprived of certain care and services normally provided by the employees. The patients were divided into 20 care units, including nursing units, psycho‑geriatric units, a transit unit and a medical‑surgical unit. About 650 of them were represented by the Public Curator, in the exercise of his duties under the Public Curatorship Act, R.S.Q., c. C‑80.
7. On January 10, 1986, the Public Curator, in his capacity as the trustee of Honorine Abel, one of the patients in the Hospital at the time of the strikes, was authorized by the Superior Court to institute a class action against the Union on behalf of all the patients of the Hospital, for [translation] "all natural persons and/or patients and/or chronically ill persons registered or admitted as patients on October 10, 11, 12, 13 and 14, 1984, and from October 15 to November 15, 1984, at the centre hospitalier St‑Julien". Proceedings were brought against the appellants CNTU and FAS because of their participation in and incitement of the illegal work stoppages.
8. The relief claimed specified that the respondent was seeking $300 per day as compensatory damages for each of the 703 patients, which damages were caused by the loss of access to the care and services normally provided, this being an interference with their right to security, inviolability and dignity (for a total of $6,959,700). In addition, the respondent claimed $150 per day for each patient as exemplary damages under the second paragraph of s. 49 of the Charter, contending that the interference with their rights was unlawful and intentional within the meaning of that paragraph (for a total of $3,479,850).
III. Judgments
Superior Court
9. Lesage J. of the Superior Court of Quebec, District of Frontenac, disposed of all the interlocutory motions from the time the claim was commenced. On February 26, 1987, he allowed a motion for particulars in part (art. 168(7) C.C.P.), but denied the portion of the application relating to the health of the patients, as noted in their medical records. On August 5, 1987, the Quebec Court of Appeal dismissed the appeal brought by the appellants from that decision, and on January 25, 1988 this Court dismissed the application for leave to appeal, [1988] 1 S.C.R. xiv. On June 17, 1988, the trial judge made an order striking out allegation 24 from the defences, which had relied on art. 1022 C.C.P. in seeking to have the judgment authorizing the instituting of the class action set aside.
10. By final judgment dated December 6, 1989, [1990] R.J.Q. 359, Lesage J. allowed the respondent’s action in part. He dealt first with the appellants’ objection under art. 1022 C.C.P., which he rejected. He then examined the evidence relating to the fault committed by the appellants. He concluded that the appellants had committed a civil fault by provoking, participating in or inciting the events of October and November 1984. These two aspects of the trial judgment were not challenged in this Court; the sole question in respect of the appellants’ civil liability relates to the prejudice.
11. The evidence establishing that the patients of the Hospital suffered prejudice as a result of the work stoppages included, inter alia, the testimony of the people who replaced the striking employees and of expert witnesses. Because of their mental disabilities, none of the patients was able to testify. The evidence before the trial judge related mainly to the care usually provided at the Hospital in comparison to the care received during the illegal strikes.
12. After an exhaustive review of the evidence, the judge concluded, first, that the representative, Honorine Abel, had the necessary capacity to suffer moral prejudice, and second, that she did in fact suffer not insecurity, but discomfort, that is, [translation] "a feeling perceived by an individual who is subjected to conditions that interfere with his or her physical or psychological welfare" (p. 390).
13. With respect to the other members of the group covered by the class action, the judge commented, first, that in class actions the evidence must be analysed in order to determine whether all the members had suffered substantially the same prejudice as the representative. In his view, although the evidence was insufficient to show that the disruption of the care and services caused serious psychological trauma to the patients, it nonetheless established that there was discomfort, including frustration, which the judge characterized as minor psychological distress. However, he excluded patients who were admitted to the transition unit and the medical‑surgical unit from the class.
14. Lastly, the trial judge declined to award exemplary damages under the Charter since in his view that remedy was not available, having regard to the nature of the prejudice. In addition, he found that personal security, a right that is protected by s. 1 of the Charter , had not been violated in this instance since the security involves a physical, and not a moral, dimension. Moreover, he found that the patients suffered no interference with their dignity, within the meaning of s. 4 of the Charter, since in his eyes the mentally disabled persons in question had no sense of modesty.
15. The judge allowed the respondent’s action in part and condemned the appellants, jointly and severally, to pay the sum of $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.
Court of Appeal (Nichols, Tourigny and Fish JJ.A.)
16. The appellants appealed that judgment and the respondent filed a cross‑appeal. The appellants’ main argument was that the Superior Court had erred in declining to review the judgment authorizing the instituting of the class action (a question not before this Court), in wrongly applying the rules of evidence relating to prejudice and in awarding excessive damages, having regard to the evidence presented. In his cross‑appeal, the respondent challenged the dismissal of the claim as it related to the members of the group admitted to the transit unit and the medical‑surgical unit (a question also not before this Court) and the refusal to award exemplary damages under the Charter.
17. On March 1, 1990, the Court of Appeal dismissed the appellants’ application to join the Attorney General of Quebec in order to challenge the constitutionality of the provisions of the Code of Civil Procedure concerning the class action procedure.
18. On the merits, in a judgment rendered on October 17, 1994, [1994] R.J.Q. 2761, the Court of Appeal dismissed the main appeal and, by a majority, allowed the cross‑appeal relating to exemplary damages.
19. The appellants argued, first, that the trial judge, relying on the provisions that apply to class actions, changed the rules of evidence in order to evaluate the prejudice suffered, in that, in their view, he created a legal presumption of similarity of prejudice for the benefit of the members of the group. The court rejected that argument and stated rather that the trial judge had used the mechanism of the presumption of fact, a method of proof permitted in a civil action.
20. Furthermore, the majority of the court was of the opinion that the provisions relating specifically to class actions had not changed the rules of evidence, and therefore that they applied to such an action in the same manner as in any civil action. Nichols J.A., who was in the minority on this point, found that the rules of evidence in class actions differ substantially from the rules that are ordinarily applicable. The source of that change, in his view, may be found in art. 1241 C.C.L.C., which provides that questions of law and of fact may be dealt with collectively for the purposes of class actions. According to his approach, once prejudice to the members of the group is established with certainty, it is not necessary to rely on sufficiently serious, precise and concordant presumptions in order to reach the result at which the trial judge arrived.
21. With respect to the assessment of the evidence, the court dismissed the argument that the testimony of the patients themselves was essential to establish the existence of the moral prejudice of discomfort. The court was of the opinion that there was more than sufficient evidence to establish that all of the patients of the Hospital were deprived of the care and services made necessary by their particular situation, which constitutes a prejudice which is foreseeable and certain.
22. Second, the appellants argued that the amounts awarded as compensation by the trial judge were excessive since, for one thing, the patients of the Hospital were never aware of the work stoppage, and for another, the compensation would serve no purpose in that the patients are incapable of taking any satisfaction from that compensation. The court noted, first, that the trial judge had properly assessed the evidence in that the inconvenience experienced by the patients left no permanent sequelae, their prejudice being strictly non‑pecuniary, that is, moral, in nature.
23. On the question of the evaluation of the moral prejudice, the court rejected the approach suggested which, in its view, was based on what is called the functional approach, a common law concept incompatible with the fundamental principles of the civil law. The court was of the opinion that, in civil law, compensation is owed not to secure substitute pleasures for the victim, but rather to make up for the objective loss suffered by the victim.
24. In terms of the calculation of moral damages, the court found that the trial judge did not err in law and that, while the amount of the compensation awarded was high, it was not patently disproportionate or unreasonable. Thus, the Court of Appeal upheld the quantum of compensatory damages as determined at trial.
25. Next, addressing the cross‑appeal, which related to the exemplary damages contemplated in the second paragraph of s. 49 of the Charter, the court was of the opinion that the trial judge erred in interpreting the relevant provisions of the Charter. First, the court noted that on reading the reasons of the trial judge, his refusal to award exemplary damages was not an exercise of his discretion; rather, his refusal resulted from an error of law in that the trial judge was of the opinion that the exemplary remedy was not available, having regard to the nature of the prejudice. The majority of the Court of Appeal, for its part, held that the disruption of the care and services that were necessary to the patients constituted interference with the rights to inviolability and dignity guaranteed to them by ss. 1 and 4 of the Charter. Tourigny J.A. dissented, not on the principle in issue, but on the question of whether there had been interference with a right guaranteed by the Charter in the circumstances of the case.
26. With respect to the intentional nature of the interference with a protected right, under the provisions of the second paragraph of s. 49 of the Charter, the majority of the Court of Appeal first examined that Court’s own decisions on this point and also the case law of the common law provinces and of the United States. The majority was of the opinion that [translation] "[i]n order for the interference to be intentional, it must have been committed in circumstances that indicate a determined intent to cause the damage resulting from the violation. The conduct of the person who commits the prejudicial act must have been wilful, knowing and deliberate" (p. 2804). In this instance, the appellants allegedly engaged in malicious conduct, exhibited [translation] "knowing indifference" and adopted an attitude absolutely contrary to the ordinary standards of morality and decency. In the opinion of Tourigny J.A., even were it to be admitted that there had been interference with a protected right, that interference did not have the intentional character required by the second paragraph of s. 49 of the Charter.
27. Having concluded that the interference with the protected rights of the Hospital’s patients was intentional, the court, by a majority, allowed the cross‑appeal and ordered the appellants, jointly and severally, to pay the sum of $200,000 to the patients of the Hospital as exemplary damages.
IV. Analysis
28. This case raises important questions which must be analysed in the specific context of the Quebec civil law system, as Beetz J. noted in Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452, at p. 468, a case which also dealt with the principles of civil liability. As I mentioned at the outset, these questions relate to (1) the rules of evidence that apply to class actions, (2) the evaluation of moral prejudice, and (3) the awarding of exemplary damages under the Charter.
A. Rules of Evidence in Class Actions
29. The appellants contend that, although the legislator did not change the ordinary rules of evidence in adopting the chapter relating to class actions, under the statutory provisions that apply to class actions there can be no reliance on, inter alia, a presumption of similarity with respect to the prejudice suffered by the patients. They further argue that the evidence, and, in particular, the proof by presumptions of fact on which they suggest the trial judge based his findings, does not establish that the patients of the Hospital experienced the prejudice of discomfort.
30. Although the appellants’ objection relates primarily to proof by presumptions, it indirectly raises the issue of the application of the general rules of civil evidence to class actions; I will dispose of this issue first, and then discuss proof by presumptions as well as the assessment of the evidence in the case at bar.
(1) Rules of Evidence and Class Actions
31. The basic principle of evidence in civil matters is that the party who wishes to exercise a right has the burden of proving the facts which support his or her claim: art. 1203 C.C.L.C. (then in force (now art. 2803 of the Civil Code of Québec, S.Q. 1991, c. 64 ("C.C.Q."))) provides that "[t]he party who claims the performance of an obligation must prove it". In an action in civil liability such as the case at bar, the plaintiff must prove a fault, a prejudice and a causal connection, on the balance of probabilities. A plaintiff may use several methods of proof, which are listed in art. 1205 C.C.L.C.: writings, testimony, presumptions and confessions. (The Civil Code of Québec reiterates these methods in art. 2811 and adds proof by production of material things.)
32. These general rules of evidence are applicable to any civil law action in Quebec and to actions under statutory law of a civil nature, unless otherwise provided or indicated. There is no indication in the Code of Civil Procedure that the ordinary rules of civil proof do not apply to class actions. On the other hand, by their very nature, class actions invite procedural rules that are unique to such actions. These rules are set out in Book Nine of the Code of Civil Procedure, entitled "Clas