Gauthier v. Beaumont

Gauthier v. Beaumont
Collection
Supreme Court Judgments
Date
1998-07-09
Report
[1998] 2 SCR 3
Case number
25022
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Bastarache, Michel
On appeal from
Quebec
Subjects
Action
Torts
Notes
SCC Case Information: 25022
Decision Content
Gauthier v. Beaumont, [1998] 2 S.C.R. 3
David Allen Gauthier Appellant
v.
Municipal Corporation of the Town of Brome Lake Respondent
and
Mario Beaumont and Alyre Thireault Respondents
Indexed as: Gauthier v. Beaumont
File No.: 25022.
1997: December 3; 1998: July 9.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, McLachlin and Bastarache JJ.
on appeal from the court of appeal for quebec
Prescription ‑‑ Suspension ‑‑ Absolute impossibility in fact to act ‑‑ Psychological impossibility ‑‑ Victim suspected of theft beaten, tortured and threatened with death by two police officers while detained at police station ‑‑ Victim bringing action for damages six years later against police officers and town employing them ‑‑ Whether action prescribed ‑‑ Whether absolutely impossible in fact for victim to act because he feared for his life ‑‑ Civil Code of Lower Canada, art. 2232 ‑‑ Cities and Towns Act, R.S.Q., c. C‑19, s. 586.
Civil liability ‑‑ Delictual liability ‑‑ Municipality ‑‑ Police officers ‑‑ Prescription ‑‑ Interference with personal inviolability and dignity ‑‑ Compensatory damages ‑‑ Exemplary damages ‑‑ Victim suspected of theft beaten, tortured and threatened with death by two police officers while detained at police station ‑‑ Victim bringing action for damages six years later against police officers and town employing them ‑‑ Whether action prescribed ‑‑ If not, whether police officers and town liable for damage caused to victim ‑‑ Whether police officers and town should be ordered to pay compensatory and exemplary damages ‑‑ Quantum of damages ‑‑ Civil Code of Lower Canada, arts. 1053, 1054 para. 7 ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1, 4, 49 para. 2.
Damages ‑‑ Interest and additional indemnity ‑‑ Action for damages brought six years after date of cause of action ‑‑ Absolutely impossible in fact for plaintiff to act during this period owing to fault of defendants ‑‑ Whether interest and additional indemnity may run from date of cause of action rather than from date action instituted ‑‑ Whether Supreme Court Act provision relating to interest applicable ‑‑ Civil Code of Lower Canada, art. 1056c ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 50 .
During the night of March 1 to 2, 1982, the appellant, who was suspected of theft, was beaten, tortured and threatened with death by the respondents B and T, who were respectively a police officer and chief of police of the respondent town. After he had left the police station, the appellant, fearing for his life, did not give the real cause of his injuries when he went to the hospital, where he stayed for a few days. He then left Quebec for Western Canada. In 1985, a representative of the Quebec Police Commission contacted him. Afraid of a trap, the appellant consulted the RCMP, who confirmed that the caller was a member of the Police Commission. The appellant then testified before the Commission under police protection. He also testified at the preliminary inquiry of B and T in 1986, and then at their trial in February 1988, where they were convicted of aggravated assault and sentenced to prison. On each occasion, he was represented by counsel. On May 3, 1988, the appellant brought an action for damages against the respondents in which he alleged that B and T had committed a fault within the meaning of art. 1053 C.C.L.C. and had interfered with his rights guaranteed by the Quebec Charter of Human Rights and Freedoms. The appellant submitted that the town was also liable because its officials knew or ought to have known about the conduct of B and T. The Superior Court dismissed the action on the basis that it was prescribed in light of the six-month extinctive prescription provided for in s. 586 of the Cities and Towns Act. The judge considered the opinions of the two psychiatric experts heard at trial, one called by the plaintiff and the other by the defence, who were of the view that the appellant had gone through several stages of post-traumatic neurosis as a result of which he was psychologically incapable of taking legal action against B and T until March 1988. The judge nevertheless made a distinction between an ability that includes the courage to initiate proceedings, and absolute impossibility, and determined that the appellant had simply lacked courage. The judge was not satisfied that it was indeed absolutely impossible for the appellant to act throughout the six years following the assault, as he found it hard to believe that it was totally impossible for him to act after testifying before the Police Commission. The Court of Appeal affirmed this judgment.
Held (Lamer C.J. and McLachlin J. dissenting): The appeal should be allowed.
Per L’Heureux‑Dubé, Gonthier and Bastarache JJ.: A psychological state of fear may suspend prescription where the fear is caused by the defendant’s fault. It must be determined in each particular case whether the fear deprived the victim of his or her free will and thus of the will to bring an action. A purely subjective fear cannot constitute a cause of impossibility to act within the meaning of art. 2232 C.C.L.C. To be a cause of absolute impossibility in fact to act, the fear must be of an objectively serious harm, must exist throughout the period when it is impossible to act and must subjectively be determinative of this impossibility to act, that is, subjectively such that it is psychologically, if not physically, impossible for the victim to take legal action. This conjunction of factors guarantees the integrity of the prescription system without resulting in flagrant injustices.
In this case, the trial judge erred in law in drawing a distinction between the appellant’s lack of courage to initiate legal proceedings and absolute impossibility in fact to act. There is no such distinction here. A fear caused by an assailant’s violence or torture can take away the victim’s ability to act and make it absolutely impossible in fact for the victim to act against the assailant. There is uncontradicted evidence that B and T tortured the appellant atrociously and threatened to kill him, that the appellant feared for his life and for the lives of his family, and that he was in a state of extreme fear for the six years that followed this brutal assault. There is no question that his fear was present throughout the six years and that it was a fear of serious harm. The psychiatric experts assessed the appellant, and both of them recognized that he had suffered a post-traumatic neurosis that had prevented him from taking legal action against the respondents during the six years following the night of torture in March 1982. They assessed the appellant’s personal situation and reached a concrete conclusion that his fear was real and determinative of his impossibility to act. The only conclusion that can accordingly be drawn, on a preponderance of evidence, is that the appellant was gripped by fear such that it was impossible for him to act, and that this was the case until March 1988. Although the appellant testified before the Police Commission in 1985 and at the preliminary inquiry in 1986, he was compelled to do so by way of subpoena and was under police protection. It was only once B and T had been convicted and sent to prison in March 1988 that he was sufficiently free of his fear to be able to act. The effect of the acute and subacute post-traumatic stress disorder, which was characterized by extreme fear, was to strip the appellant of any control over his own will as regards B and T, who deliberately, and through their own fault, placed the appellant in this profound state of fear. In requiring an insurmountable impossibility, the trial judge appears to have applied an objective reasonable person legal standard. Furthermore, whether the appellant knew or may have known about the prescription period for his action is immaterial here, since he was in a state of fear and of profound post-traumatic stress that made it impossible for him to take legal action against B and T for six years. Finally, to blame the appellant for a lack of diligence in obtaining treatment amounts implicitly to judging diligence based on the reasonable person standard, and disregarding the psychological reality of the victim, who suffered severe post-traumatic stress. The fact that a victim avoids talking about his or her trauma is in fact a consequence of the trauma. Since it was absolutely impossible in fact for the appellant to act within the meaning of art. 2232 C.C.L.C., the six-month extinctive prescription provided for in s. 586 of the Cities and Towns Act did not run from March 2, 1982, the date on which the appellant’s right of action arose, to March 1988. As the court action was brought within six months of the end of the suspension of prescription, the action was not prescribed.
The civil fault of B and T is based on a breach of the general duty of good conduct to which everyone is subject and on unlawful interference with the appellant’s rights to personal inviolability and to the safeguard of his dignity guaranteed in ss. 1 and 4 of the Quebec Charter. At the time of the delict, the respondent town was the employer of B and T. In light of art. 1054 para. 7 C.C.L.C., an employer is liable for damage caused by its servants that involves unlawful interference with rights protected by the Quebec Charter, since such interference constitutes a civil fault. The fact that the town did not knowingly endorse the brutal acts committed by its employees does not relieve it from liability. It must therefore be held liable for the compensatory damages owed to the appellant as a result of the acts of B and T. The appellant is entitled to $50,000 in pecuniary damages and $200,000 in moral damages.
The appellant is also entitled to $50,000 in exemplary damages. B and T are the persons guilty of unlawful and intentional interference, within the meaning of s. 49 para. 2 of the Quebec Charter, with the appellant’s rights to inviolability and dignity. It is clear from the evidence that they wished to cause the consequences of their wrongful conduct. As for the respondent town, proof of an employer-employee relationship under art. 1054 para. 7 C.C.L.C. is not sufficient to establish unlawful and intentional interference by the employer. It must be shown on a preponderance of evidence that the employer had an intent with respect to the consequences of the unlawful breach of rights guaranteed by the Quebec Charter. There is sufficient evidence in this case to conclude that the town can be presumed to have intended to interfere with the appellant’s inviolability and dignity, or that this intention can be attributed to it. There had been several cases of unreasonable use of force in the respondent town’s police force involving B and T, among others, before March 1982, and it would be strange if the town had never got wind of the conduct of its police officers and police chief before the Police Commission’s inquiry. In the present case, the evidence established that the police force itself, including the police chief, played an active role in the violence against the appellant. T, as the chief of police, was one of the town’s directing minds, and his intent to cause the consequences of the unlawful breach is to be attributed to the town. The town is therefore one of the persons guilty, within the meaning of s. 49 para. 2, of the unlawful and intentional interference with the appellant’s rights to personal inviolability and dignity, and is ordered to pay exemplary damages jointly and severally.
Under art. 1056c C.C.L.C., interest and the additional indemnity run from the date when the action was instituted. Although it was absolutely impossible in fact for the appellant to act until March 1988 and he could not therefore require that the obligation be performed before then, there is no rule in the Civil Code of Lower Canada permitting interest to be imposed as of the date of the cause of action. As for s. 50 of the Supreme Court Act , it cannot be applied against a clear rule of the Civil Code of Lower Canada that provides for moratory damages related to the debt itself. Finally, the appellant’s request for extrajudicial costs is dismissed.
Per Lamer C.J. and McLachlin J. (dissenting): A post‑traumatic neurosis that prevents the victim of a violent act from bringing legal proceedings may cause an impossibility that suspends prescription. However, the facts of this case did not give rise to such an inability to act. Notwithstanding the trial judge’s inappropriate use of the expression “lack of courage” with respect to the appellant, he did not commit any errors in his analysis of absolute impossibility in fact to act. His conclusion is supported by complex and detailed evidence. It is not open to this Court to review his findings of fact as to the extent of the appellant’s disability between 1982 and 1988.
The trial judge did not err in rejecting the experts’ unanimous opinion that the appellant was psychologically unable to act until March 1988, since the psychiatric assessments were not entirely consistent. Be that as it may, the determination of “impossibility to act” is a matter for the trier of fact, not for the experts, and it can be seen from the trial judge’s reasons as a whole that he considered this notion in a subjective manner, in light of all the evidence. In a subjective analysis of impossibility, a trier of fact must ensure that the psychological impossibility was just as unforeseeable and irresistible for the victim as superior force, in light of the victim’s personal characteristics and the lack of precision inherent in psychological evidence. The impossibility must be reasonable, which means in this case that the fear must relate to an objectively serious injury.
Here, the trial judge genuinely asked himself whether it was psychologically impossible for the appellant to bring his action until 1988, and he did not err in his assessment of the appellant’s psychological condition after March 1982. The appellant’s post‑traumatic neurosis gradually abated over the months and years following the night of torture in March 1982. He was totally incapable of bringing an action against B and T during the acute phase of his neurosis and, although the trial judge refrained from expressing a clear opinion on this subject, it might even be argued that it was impossible for him to act during the subacute phase of his trauma. However, it seems that the chronic phase of the neurosis was insufficient to suspend prescription. The trial judge properly discharged his duty to characterize, in legal terms, the appellant’s psychological state during each phase of his post‑traumatic stress. He did so in light of all the evidence, not only the expert evidence. It therefore cannot be maintained that the trial judge was wrong to disregard the unanimous opinion of the experts that it was impossible for the appellant to act until March 1988. The expert assessments are silent or unconvincing on the question of the time ‑‑ which is critical here ‑‑ when the subacute symptoms of the neurosis dissipated. The trial judge’s assessment of the probative value of the various pieces of evidence was not unreasonable, and this Court should not interfere with the decision of the trier of fact.
Even if the trial judge had committed an error in law in his analysis of absolute impossibility in fact to act, it can be seen from the evidence that the appellant was capable of bringing his action for damages long before March 1988. Since the originating documents were served on May 3, 1988, the appellant had to show that it was impossible for him to act until early November 1987. It is impossible to draw such a conclusion. First, the expert assessments do not specify when the appellant gained sufficient control over his post‑traumatic phobia to take legal action. Second, several excerpts from the appellant’s testimony suggest that it would have been possible for him to assert his rights before the end of 1987. In light of the evidence as a whole, the appellant did not face a psychological impediment in the fall of 1987 that no amount of diligence would have allowed him to overcome. The view of the judges below that it was no longer psychologically impossible for the appellant to bring an action after he testified before the Police Commission in 1985 is shared.
Cases Cited
By Gonthier J.
Referred to: Semmelaack v. Ferguson (1941), 48 R.L. 163; Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113; Procureur général du Québec v. Garantie (La), Cie d’assurance de l’Amérique du Nord, [1979] C.S. 216, rev’d on other grounds J.E. 83‑1142; Beaubien v. Laframboise (1925), 40 B.R. 194; Cass., 2e Ch. civ., 10 February 1966, D.1967.315; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; National Bank of Canada v. Soucisse, [1981] 2 S.C.R. 339; Bank of Montreal v. Kuet Leong Ng, [1989] 2 S.C.R. 429; Houle v. Canadian National Bank, [1990] 3 S.C.R. 122; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211; Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Augustus v. Gosset, [1990] R.J.Q. 2641, aff’d [1995] R.J.Q. 335; Lacroutz v. Couture, [1991] R.R.A. 493.
By Lamer C.J. (dissenting)
Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113.
Statutes and Regulations Cited
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 1 [repl. 1982, c. 61, s. 1], 4, 49.
Cities and Towns Act, R.S.Q., c. C‑19, ss. 71 [am. 1983, c. 57, s. 46], 72 [idem, s. 47; am. 1985, c. 27, s. 16; am. 1986, c. 31, s. 3; am. 1988, c. 21, s. 66], 586.
Civil Code (France), arts. 2251, 2252, 2253, 2258.
Civil Code of Lower Canada, arts. 995, 1053, 1054 para. 7, 1056c [am. 1987, c. 98, s. 1], 2232 [am. 1989, c. 54, s. 125], 2258 para. 2.
Civil Code of Québec, S.Q. 1991, c. 64, art. 2930.
Labour Code, R.S.Q., c. C‑27, s. 1(l).
Police Act, R.S.Q., c. P‑13, ss. 2.1 [am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24; am. 1996, c. 73, s. 1], 64 [repl. 1991, c. 32, s. 252; am. 1996, c. 73, s. 7], 67, 68 [am. 1983, c. 57, s. 168], 79 [am. 1988, c. 21, s. 66; idem, c. 75, s. 233], 98.1 [am. 1988, c. 21, s. 66; am. 1990, c. 27, s. 32].
Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 47 , 50 .
Authors Cited
Baudouin, Jean‑Louis. La responsabilité civile, 4e éd. Cowansville: Yvon Blais, 1994.
Baudouin, Jean‑Louis. Les obligations, 3e éd. Cowansville: Yvon Blais, 1989.
Baudry‑Lacantinerie, Gabriel, et Albert Tissier. Traité théorique et pratique de droit civil ‑‑ De la prescription, 3e éd. Paris: Sirey, 1905.
Buy, Michel. “Prescriptions de courte durée et suspension de la prescription”, J.C.P. 77, I, 2833.
Carbonnier, J. “La règle contra non valentem agere non currit praecriptio” (1937), 57 Rev. crit. lég. et jur. 155.
Cass., 2e Ch. civ., 10 février 1966, D.1967.315, note Prévault.
Dallaire, Claude. Les dommages exemplaires sous le régime des Chartes. Montréal: Wilson & Lafleur, 1995.
Delwaide, Karl. “Les articles 49 et 52 de la Charte québécoise des droits et libertés: recours et sanctions à l’encontre d’une violation des droits et libertés garantis par la Charte québécoise”. Dans Application des Chartes des droits et libertés en matière civile. Formation permanente du Barreau du Québec. Cowansville: Yvon Blais, 1988, 95.
Durnford, John W. “Some Aspects of the Suspension and of the Starting Point of Prescription” (1963), 13 Thémis 245.
Gardner, Daniel. L’évaluation du préjudice corporel. Cowansville: Yvon Blais, 1994.
Juris‑classeur civil, art. 2251 à 2259, fasc. H, par Jean‑Jacques Taisne, no 89.
Langelier, F., sir. Cours de droit civil de la Province de Québec, t. 6. Montréal: Wilson & Lafleur, 1911.
Langevin, Louise. “Suspension de la prescription extinctive: à l’impossible nul n’est tenu” (1996), 56 R. du B. 265.
Larouche, Angers. “Chronique de droit des obligations” (1973), 4 R.G.D. 201.
Le Roux de Bretagne, A. Nouveau traité de la prescription en matière civile, t. 1. Paris: A. Durand et Pedone‑Lauriel, 1869.
Martineau, Pierre. La prescription. Montréal: PUM, 1977.
Mazeaud, Henri, Léon et Jean. Leçons de droit civil, t. II, vol. 1, Obligations: théorie générale, 8e éd., par François Chabas. Paris: Montchrestien, 1991.
Mignault, Pierre Basile. Le droit civil canadien, t. 9. Montréal: Wilson & Lafleur, 1916.
Nouveau Petit Robert. Paris: Le Robert, 1996, «courage».
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.
Pineau, Jean, et Danielle Burman. Théorie des obligations, 2e éd. Montréal: Thémis, 1988.
Quebec. Civil Code of Lower Canada: Report of the Commissioners for the Codification of the Laws of Lower Canada relating to Civil Matters. First, Second and Third Reports. Québec: Desbarats, 1865.
Roland, Henri, et Laurent Boyer. Adages du droit français, 3e éd. Paris: Litec, 1992.
Starck, Boris, Henri Roland et Laurent Boyer. Obligations, vol. 3, Régime général, 5e éd. Paris: Litec, 1995.
Tancelin, Maurice. Des obligations: actes et responsabilités, 6e éd. Montréal: Wilson & Lafleur, 1997.
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Traité de droit civil du Québec, t. 15, par Witold Rodys. Montréal: Wilson & Lafleur, 1958.
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APPEAL from a judgment of the Quebec Court of Appeal, [1996] R.D.J. 126, [1995] A.Q. no 762 (QL), affirming a judgment of the Superior Court, J.E. 90‑871. Appeal allowed, Lamer C.J. and McLachlin J. dissenting.
Martin Gauthier, for the appellant.
Thomas A. Lavin and Isabelle Reinhardt, for the respondent the Town of Brome Lake.
No one appeared for the respondents Beaumont and Thireault.
//The Chief Justice//
English version of the reasons of Lamer C.J. and McLachlin J. delivered by
1 The Chief Justice (dissenting) -- At the outset, I share Justice Gonthier’s view that a post‑traumatic neurosis that prevents the victim of a violent act from bringing legal proceedings may cause an impossibility that suspends prescription. Like the experts who testified in this matter, I am of the view that such an impossibility may in fact be just as “absolute” as one caused by superior force. Furthermore, as I stated in Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113, at p. 126, where a person is prevented from taking legal action through the fault of a debtor who, for example, conceals the facts giving rise to the person’s right, this causes an impossibility in fact and prevents prescription from running. The law must serve the ends of justice.
2 While I agree with Gonthier J. that a psychological impossibility exists in theory, I do not believe that the facts of this case gave rise to such an inability to act. In my view, the trial judge did not commit any errors of law in analysing this question. It is therefore not open to this Court to review his findings of fact as to the extent of the disability of the appellant David Allen Gauthier between 1982 and 1988.
3 I recognize without hesitation that the appellant was treated brutally during the night of March 1, 1982. Rarely in my career as a judge have such odious events come to my attention. The respondent police officers were convicted of serious criminal offences, and their convictions were clearly well deserved. Since I am well aware of the horror experienced by the appellant, it is without any enthusiasm that I conclude that his action is prescribed.
4 My reasons explain in detail why I am of the view that Boily J. did not err in his assessment of the appellant’s psychological condition after March 1982. I then discuss certain aspects of the evidence that in my view confirm that the trial judge made the proper findings of fact in the present case.
I. The Test for Assessing Psychological Impossibility
5 In the Superior Court the plaintiff appellant had to show on a balance of probabilities that it was psychologically (“absolutely” says the Civil Code of Lower Canada (“C.C.L.C.”)) impossible for him to bring an action against the respondents at least until six months before he actually did so in May 1988. Boily J. was of the view that Mr. Gauthier had failed to discharge this burden. The following is an excerpt from the trial judgment that illustrates the analytical method adopted by Boily J. and concludes that the action is prescribed:
[translation] This is therefore a case in which the expert’s role is combined in a way with that of the judge. Ultimately, however, it is the judge who must determine whether it was absolutely impossible for Gauthier to act.
A distinction must be made between an ability that includes the courage to initiate proceedings, and absolute impossibility. Both experts are of the view that Gauthier lacked this courage and was unable to initiate proceedings, and that it was highly or likely or “practically impossible” for him to act.
Both experts are categorical regarding the first six months after the incident. They are much less so concerning the subsequent period. Dr. Vacaflor stated the following:
“C) Unable for the 6 years following the night of March the first to gather the necessary psychological strength to initiate legal charges against the policemen and the local police.”
Dr. Béliveau stated the following:
“He subsequently continued to show the symptomatology of a state of subacute post‑traumatic stress, and in particular of phobias that in all probability prevented him from taking any action against the persons who assaulted him in March 1982 until March 1988.”
. . . The burden of proving absolute impossibility lies with the person relying on it.
In the present case, the plaintiff has not satisfied the court that it was indeed absolutely impossible for him to act throughout this lengthy period. While it probably was for a certain period, it is hard to believe that it was totally impossible for him to act thereafter, especially at the time of the Police Commission’s inquiry [in 1985], when he was under police protection and pleaded guilty to a charge against him.
Furthermore, as Dr. Béliveau mentioned, the chronic period could have been avoided had the plaintiff consulted a specialist. For prescription to be suspended, the impossibility must be equivalent to superior force, that is, a case that human vigilance and ingenuity can neither anticipate nor prevent. Gauthier could have received treatment. He had retained a lawyer. He knew about prescription ‑ a period of two years had been mentioned to him - and wanted to seek compensation in criminal court. This was not a case in which no amount of diligence would have allowed him to suspend it. The impossibility must be beyond challenge, which it cannot be in the present case.
If boldness is the basis for the judgment, it is open to condemnation for the same reason. The court must not let itself be carried away by fairness and place itself above the law by creating an imaginary suspension, proportionate to the seriousness of the assault on the plaintiff.
In its delictual aspect the action is accordingly prescribed. [Emphasis added.]
(Sup. Ct. Bedford, No. 455-05-000059-886, February 21, 1990, J.E. 90-871, at pp. 16‑19 of the full text.)
6 The judge is alleged to have committed an error of law in distinguishing the appellant’s lack of courage from an absolute impossibility to act. With respect for the contrary opinion, I am of the view that this is not the case.
7 A possible error by the trial judge must be assessed in light of his reasons as a whole, not simply by reading two sentences distinguishing impossibility from lack of courage. In my view, the following procedure should be followed in this regard. If Boily J.’s purpose in distinguishing “an ability that includes the courage to initiate proceedings” from absolute impossibility was to state a rule of law of general application, he erred in law. His analysis would be in error, since it would disregard the psychological and subjective nature of the impossibility at issue. It might then be possible to reject all forms of psychological impossibility out of hand as being a lack of courage (“courage”), that is, a lack of [translation] “moral strength” or “[f]irmness in the face of danger or suffering . . .” (Nouveau Petit Robert (1996), at p. 492). If, however, rather than setting out an objective standard, Boily J. tried to determine the appellant’s psychological state in the case at bar and assessed the credibility of his testimony to the effect that he lived in terror, my view would be that Boily J.’s overall assessment of the evidence should not be altered.
8 The use of the words “lack of courage” was clearly unfortunate. With respect, this expression trivializes the appellant’s tragedy, the main events of which are not even disputed by the respondents. However, Boily J.’s expression does not in my view constitute an error of law. First of all, the expression “lack of courage” is similar to the terms used in the report of Dr. Vacaflor, the respondents’ expert, regarding the subacute phase of the appellant’s neurosis:
In regard to his alleged impossibility of denouncing the event of the first of March of ’82 to the proper authorities it must be said at the very onset that we can only entertain hypothesis [sic] of various degrees of credibility. My personal opinion is that he was truly so very frightened and understandably mistrustful of any police action that it effectively kept him from denouncing the event. Although he had managed to put to some degree his life together, his fear of retaliation (that still persists) made it, given his psychological frame of mind, practically impossible to take the necessary legal action against his torturers.
In brief . . .
C) Unable for the 6 years following the night of March the first to gather the necessary psychological strength to initiate legal charges against the policemen and the local police. [Case on Appeal, at pp. 54‑55 (emphasis added).]
9 Can it nonetheless be argued that Boily J. misinterpreted Dr. Vacaflor’s diagnosis? At the hearing, this expert explained the words “practically impossible” as follows: “it would be understood like under most circumstances as a severe impediment” (Case on Appeal, at p. 343 (emphasis added)). Dr. Vacaflor continued his testimony by describing two categories of examples of what is “practically impossible”. The impediments of the first group, such as phobias, have an “imaginary” source: “Let’s take phobia of a closed room. Now, a phobic individual in this situation would do whatever he can not to be in this room. That’s a severe impediment.” (Case on Appeal, at p. 344.) The expert then gave an example of a “real” cause of something that is “practically impossible”: “Let’s suppose I run into a confrontation with a professional boxer and I’m invited to climb into the ring to decide my fate mostly, I would be intensely frightened and I would probably do my best not to climb into the ring because I would see the options of success negligible” (Case on Appeal, at p. 344 (emphasis added)). At the judge’s request, Dr. Vacaflor returned to his example of a fear whose cause is “real” (“climb into a ring and fight . . . [Mike] Tyson”) and stated:
Yes, yes, I mean to say that fear can have a paralyzing effect. Be that real like Tyson or imaginary like the closed room. The effect may be just about the same. So, we could not call that an absolute impossibility. I guess I could climb into the ring and get smashed or I could remain in the room and faint. I think that’s a practical impossibility meaning strong, intense. [Case on Appeal, at p. 345 (emphasis added).]
10 Finally, counsel for the respondents asked Dr. Vacaflor to gauge the intensity of the impediment that prevented Gauthier from taking action against his assailants. He answered as follows:
The two examples I gave you are examples of situations of great acuteness, where the intensity of the fear may in fact force him to faint. Well, he never fainted as such, so in that sense of fear, shall we say it was less and it was certainly chronic. I think that his example in my view would fall in between the realistic fear and an element of augmentation because of his own personality and difficulties. But, I think it was intense enough. I don’t think this man was in a position to take action. I don’t think it crossed his mind, I think he was in a position of escaping, hiding and not talking about it. So, to compare in tests, it would [be] adventurous, I really, but I think that would be my description. [Case on Appeal, at pp. 349‑50 (emphasis added).]
11 I have reproduced the comments of the respondents’ expert in detail in order to show that the content of his testimony is difficult to assess. His professional opinion as to the extent of the appellant’s disability was vague. Nor did Dr. Vacaflor give a satisfactory explanation for his expression “[u]nable . . . to gather the necessary psychological strength to initiate legal charges”. He focused on the source of the impossibility (in this case half “real” and half “imaginary”, he said: Case on Appeal, at p. 346), but not really on whether the mental impediment was determinative, on its consequences or on the evolution of the symptoms of trauma over time. When the psychiatrist Dr. Vacaflor considered these questions, he stated that Gauthier faced two difficulties: a fairly pessimistic perception of his chances of success against the police in any legal proceedings and a phobia that was not intense enough to cause him to faint.
12 As a result, if Boily J. found Dr. Vacaflor’s testimony on this subject to be more credible than that of Dr. Béliveau, the appellant’s expert, it is understandable that he adopted a qualified opinion of the appellant’s psychological state during the months or years prior to his action for damages. Boily J. cannot be accused of erring in rejecting the experts’ unanimous opinion that the appellant was psychologically unable to act until March 1988. Such a conclusion would be unjustified, since in my view the psychiatric assessments are not entirely consistent.
13 Be that as it may, the determination of impossibility is a matter for the trier of fact: this is what art. 2232 C.C.L.C. provides in stating that an absolute impossibility in fact prevents prescription from running. This prerogative belongs to the judge, not to the experts, and the experts readily conceded this by admitting that they could only formulate hypotheses as to the appellant’s psychological state between 1982 and 1988 (Case on Appeal, at pp. 277‑78 and 339). Boily J.’s reasons imply that the expert assessments were of limited assistance to him. He stated the following in summarizing them: [translation] “On cross‑examination, Dr. Béliveau acknowledged that he was unaware of the statements made before the Police Commission, but he did not think that would have led him to change his diagnosis. He also acknowledged that he had not questioned Gauthier as to whether he was aware that he was subject to a short prescription period” (pp. 14‑15). It is of course difficult on appeal to assess the significance of these comments on the credibility of the expert witnesses.
14 In my view, Boily J. considered the notion of impossibility in a subjective manner, in light of the evidence as a whole. The judge genuinely asked himself whether it was psychologically impossible for the appellant to bring his action until 1988. He accepted that it had been psychologically absolutely impossible for Mr. Gauthier to bring a civil action during the acute phase of his neurosis. He wrote the following: [translation] “it probably was [absolutely impossible for him to act] for a certain period” (p. 17). However, Boily J. suggested that the second and third phases of post‑traumatic neurosis do not necessarily result in an absolute impossibility in fact. At least that is what I infer from his comment that the experts’ opinions were “much less [categorical]” in concluding that Gauthier was “[u]nable . . . to gather the necessary psychological strength to initiate legal charges” or that the appellant’s post‑traumatic symptoms [translation] “in all probability prevented him from taking any action” against the respondents after the first six months following March 1, 1982 (at pp. 16‑17).
15 The Superior Court judge then considered Gauthier’s specific case and concluded: [translation] “the plaintiff has not satisfied the court that it was indeed absolutely impossible for him to act throughout this lengthy period” (p. 17). The trial judge noted the apparent inconsistency between Gauthier’s testimony before the Police Commission and an impossibility to act. He cast doubt on the existence of an impossibility to act by writing that Gauthier [translation] “knew about prescription ‑- a period of two years had been mentioned to him -‑ and wanted to seek compensation in criminal court” (p. 18).
16 I concede that Boily J.’s reasons are problematic, in that he began at one point in his reasoning to lean toward an objective analysis of impossibility. The trial judge wrote (at p. 18):
[translation] . . . the chronic period could have been avoided had the plaintiff consulted a specialist. For prescription to be suspended, the impossibility must be equivalent to superior force, that is, a case that human vigilance and ingenuity can neither anticipate nor prevent. Gauthier could have received treatment. He had retained a lawyer. He knew about prescription -‑ a period of two years had been mentioned to him ‑- and wanted to seek compensation in criminal court. This was not a case in which no amount of diligence would have allowed him to suspend it. The impossibility must be beyond challenge, which it cannot be in the present case.
Two comments must be made concerning this excerpt from the judgment. First, one part of these comments is not relevant to the point at issue since, according to Dr. Béliveau, the chronic phase of post‑traumatic stress does not result in an impossibility in fact. Second, in the context of the reasons as a whole, these few sentences of the trial judge are consistent with a subjective analysis of impossibility. As I see it, the trier of fact must ensure that the psychological impossibility was just as unforeseeable and irresistible for the victim as superior force, in light of the victim’s personal characteristics and the lack of precision inherent in psychological evidence. I also agree with Gonthier J. that the impossibility must be reasonable, that is, in the case at bar, that the fear must relate to an objectively serious injury.
17 The appellant’s post‑traumatic neurosis gradually abated over the months and years following the night of torture of March 1, 1982. I accordingly accept that Gauthier was totally incapable of bringing an action against the respondents during the acute phase of his neurosis. It might even be argued that it was impossible for him to act during the subacute phase of his trauma, although Boily J. refrained from expressing a clear opinion on this subject. However, it seems that the chronic phase of the neurosis was insufficient to suspend prescription.
18 This means that the trial judge had to characterize, in legal terms, David Gauthier’s psychological state during eac