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.
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Roland, Henri, et Laurent Boyer. Adages du droit français, 3e éd. Paris: Litec, 1992.
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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 each phase of his post‐traumatic stress. In my view, Boily J. properly discharged this duty. He did so in light of all the evidence, not only the expert assessments. The experts shed only very limited light on the approximate starting dates of the various phases of the victim’s neurosis, and in particular on the approximate final date of the subacute phase, which was a critical time in this case.
19 In his expert report, the psychiatrist Dr. Vacaflor discussed David Allen Gauthier’s state of fear over a six‐year period but did not specify in any way when or how the symptoms of the subacute phase abated (Case on Appeal, at pp. 53 and 55). This witness gave no explanation concerning the manner in which David Gauthier came to bring an action for damages. As for Dr. Béliveau, he stated the following in this regard when examined at the hearing:
[translation]
A. Listen, once again, the transition in terms of those symptoms [from the subacute phase to the chronic phase], it didn’t take place, it didn’t take place in March eighty‐eight. I think that, what I said at that time is that he was incapable of bringing an action until then. Now if you ask me more directly how he was able to bring an action afterwards, my answer, once again, would be that there’s no way I can do it, give you a definite response. However, one hypothesis that I consider highly likely is that, once he learned that the police officers had been convicted following the trial, at that point, especially if there were people who reassured him . . . at that point he may have been able to control his anxiety sufficiently to be able to take action. [Case on Appeal, at pp. 277‐78 (emphasis added).]
20 Counsel for the respondents asked the expert what made him say that the appellant had become capable of bringing an action “in March 1988”. He answered as follows:
[translation]
A. Well what I said is that in March he was. I can’t say that he wasn’t in April or that he wasn’t in February. . . . What I said is that he was in March, y’know, at the time he brought them. I believe it was in March that he brought the proceedings; I don’t remember that for sure any more. But in March he was, perhaps a bit before then. But exactly when, it can’t be done like that. What I said is that when he learned that the police officers had been convicted, when he had the judgment in other words, I think that must have been a strong factor. Especially if people were reassuring him at that time that he could do it. [Case on Appeal, at p. 281 (emphasis added).]
21 At trial, Dr. Béliveau reiterated the key points of his opinion a number of times, including the thesis that the conviction of the police officers would have had a reassuring effect, especially if the appellant had discussed it with those close to him and had been reassured (Case on Appeal, at p. 293). However, the evidence does not show that the appellant had any such discussions. At the examination for discovery, Mr. Gauthier was asked what led him to bring his action (Case on Appeal, at pp. 483‐84):
R. I don’t really know who it was who finally got me going like to take the proceedings.
Q. O.K. well at a given point, did somebody explain to you that you had the right to sue these people?
R. Not really no, no . . . outright no.
Q. Well did any people encourage you to . . . say that you should do it, members of your family or anybody?
R. No.
Q. It was just came into your own mind yourself, is that correct?
R. Well it was in my mind for quite a while myself, with nobody telling me.
Q. Yes, for how long had it been in your mind?
R. Actually ever since it happened.
Q. Ever since it happened?
R. Ever since they got hold of me in 1982.
22 The psychiatrist stated more than once that the transition from the subacute phase to the chronic phase might have taken place before March 1988. He acknowledged that the appellant might have been able to bring legal proceedings [translation] “in February, January, etc. I don’t see how it would be possible to determine the exact time” (Case on Appeal, at pp. 293‐94 (emphasis added)). It is even possible that Gauthier experienced temporary episodes of chronic phase symptoms before March 1988 (Case on Appeal, at p. 297). Finally, the expert was asked the following question: [translation] “So essentially you are saying that he was capable of doing it in March because he did it [initiated legal proceedings] in March? [Answer:] Well, yes, to a certain extent you could say that’s what I said” (Case on Appeal, at p. 294).
23 I have reproduced these lengthy excerpts from the transcripts to show that the expert assessments are of limited usefulness for determining the time when the subacute phase of the neurosis abated. Dr. Béliveau even concluded as follows:
[translation] All I can tell you is that I give an opinion based on the symptomatology before me. The rest are possibilities, but I can’t. . . . To be honest, I don’t think I can give a firm opinion on this point. I think the judge is in as good a position as I am, even in a better position than I am with all the evidence before him, to reach a decision. [Case on Appeal, at p. 295 (emphasis added).]
24 With respect, it would be wrong to maintain that Boily J. disregarded the unanimous opinion of the experts that it was impossible for Gauthier to act until March 1988. The expert assessments are silent or unconvincing on the question of the time when the subacute symptoms of the neurosis dissipated. Dr. Béliveau’s diagnosis that the appellant became capable of bringing his proceedings in March 1988 is based in large part on the fact that it was then that he actually contacted a lawyer. In my view, this reasoning is not determinative of whether Gauthier could have brought his action before that date.
25 Notwithstanding Boily J.’s inappropriate use of the expression “lack of courage” with respect to the appellant, it is my view that the trial judge did not commit any errors in his analysis of absolute impossibility in fact. His conclusion is supported by complex and detailed evidence. Nor am I convinced that his assessment of the probative value of the various pieces of evidence was unreasonable. For these reasons, I do not think that this Court should interfere with the decision of the trier of fact.
II. The Assessment of Subjective Impossibility in This Case
26 If my conclusion that Boily J. did not commit any errors of law was wrong, I am also satisfied after reviewing the evidence that the appellant was capable of bringing his action for damages long before March 1988. In this case, the alleged impossibility is a question of fact that depends on how credible the appellant’s account of his state of mind until 1988 is found to be. It must be understood that this Court is at a disadvantage in relation to the trial court on any questions of credibility. For example, what weight should be given to the perjury committed by David Gauthier in 1985 when he stated under oath that he had not taken part in the theft of the safe? (Gauthier later pleaded guilty to a charge relating to that offence: Case on Appeal, at pp. 170 and 459-61.) Or what importance should be attached to his mistrust of the police? The appellant stated that he had no faith in the police or the judicial system (Case on Appeal, at pp. 112 and 131), although he agreed to give information to the Police Commission. Furthermore, when a representative of the Commission contacted him in 1985, he was afraid it was a trap, and his response was to verify the identity of the caller by contacting a member of the RCMP! (Case on Appeal, at p. 118.)
27 I share 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. Furthermore, the appellant testified at the respondents’ preliminary inquiry on charges of assault in 1986, and at their trial in 1988. David Gauthier had the assistance of counsel on each of these three occasions (reasons of Boily J., at p. 8). It can also be seen from an excerpt from the evidence that the appellant tried to discuss prescription with his lawyer in 1985, but that the lawyer did not have time to consider this question: “I believe I might have asked him once about it. But then he was busy in that there so whenever he even got to it I couldn’t explain my circumstances or nothing to him” (Case on Appeal, at pp. 200‐201). The appellant also stated at the criminal trial of the respondent police officers in 1988 that he thought it was impossible for him to bring an action against the Town of Brome Lake: “You can believe it if you want. But right from the start of my first declaration, it was said to me clear that there was no, I don’t know what word to use. . . . To put a civil suit, I had a maximum of two years after the incident” (Case on Appeal, at pp. 471‐72). Furthermore, in response to a question put by one counsel at the criminal trial, Mr. Gauthier stated that he was not afraid of the respondent officers even though his address had been recited in their presence (Case on Appeal, at pp. 475 and 479).
28 It is hard to know what to think of the comments set out above that were made by the appellant in the course of a painful judicial saga that has now been going on for 13 years. While it is clear that some of these remarks are unreliable or do not specify the period to which they refer, they nevertheless cast doubt on the appellant’s psychological disability.
29 Dr. Béliveau, the plaintiff’s expert witness, stressed the fact that Mr. Gauthier was not the party taking action during the Police Commission’s inquiry or the criminal trials. According to this psychiatrist, it should accordingly not be inferred from the fact that the appellant testified in those proceedings that he was then capable of himself bringing an action against the respondents (Case on Appeal, at pp. 274‐75 and 298‐303). I hesitate to accept this point of view. The appellant was all the same a key witness in a criminal prosecution that might result in the imprisonment of police officers. Seeking compensation and exemplary damages seems insignificant in comparison. It is of course difficult to know whether Gauthier, who is not a lawyer, could grasp the significance of this distinction.
30 Nor should the appellant’s participation in the Police Commission’s inquiry or the criminal trial be distinguished from the institution of civil proceedings on the basis of the subpoenas served on Mr. Gauthier during the criminal trial and the inquiry. The following is an excerpt from his examination on this subject (Case on Appeal, at pp. 215-16):
Q. Was there anything in 1986 when you came here to testify for the second time, for the third time, for the preliminary enquiry in 1986, there is anything stopping you at that time from suing the town of Brome Lake?
R. Yes there was. Two police officers.
Q. I see?
R. Ex‐police officers.
Q. And what was it that was stopping you. I mean you came here and you testified freely and voluntarily didn’t you?
R. Freely, no.
Q. Oh no?
R. I believe I got a subpoena.
Q. But if you hadn’t got a subpoena, you would have come on your own wouldn’t you?
R. If I could have afforded it.
Q. So it wasn’t the fact that those two police officers were here that was stopping you from coming and testifying?
R. I knew if I could have got down here I could have got police protection.
Q. Right. So what was the difference between testifying against them in open court or taking a civil action against the town of Brome Lake?
R. I didn’t know, I still don’t know if you can get the police protection for a civil suit.
The appellant’s testimony does not convince me that he was compelled to act against his will on all these occasions. In short, even when Mr. Gauthier referred to the police protection he received when testifying at the Police Commission’s inquiry, what he said suggests that his fear was more reasoned than insurmountable.
31 One can only speculate why the appellant did not institute legal proceedings before May 3, 1988. I wonder what effect the fact that he lived in British Columbia had, since the action had to be brought in Quebec. It can be seen from the evidence that the appellant and his family came to live in Quebec in June 1988, which made it much easier to prosecute the action.
32 Under our law it must have been absolutely impossible for the appellant to act until six months before he actually did so. Since the originating documents were served on May 3, 1988, the appellant must show that it was impossible for him to act until early November 1987. With respect, I cannot conclude that the appellant was incapable of bringing his action before he contacted his current lawyer in the spring of 1988. Given such a short prescription period (six months, now amended where the action is founded on an obligation to make reparation for bodily injury: art. 2930 C.C.Q.), I do not think the courts below erred. First, no matter how useful they may be, 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, it is my view that in the fall of 1987, the appellant did not face a psychological impediment that no amount of diligence would have allowed him to overcome. For these reasons, and with some regret, I would therefore dismiss the appeal, without costs.
33 Should the Court conclude that the appellant’s action is not prescribed, I believe it would be rash to award damages without the benefit of the reasons of the courts below on this question. In that event, I would suggest that the matter be remanded to the Superior Court so that it may determine the municipality’s liability and the extent of the damage sustained by the appellant.
//Gonthier J.//
English version of the judgment of L’Heureux-Dubé, Gonthier and Bastarache JJ. delivered by
34 Gonthier J. -- This appeal deals primarily with the concept of absolute impossibility in fact to act as a cause of suspension of extinctive prescription.
I. Facts
35 On March 1, 1982, the appellant was brutally beaten and tortured by the respondents Mario Beaumont and Alyre Thireault, who were respectively a police officer and chief of police of the respondent Municipal Corporation of the Town of Brome Lake. The trial judge’s description of the events was reproduced by the Court of Appeal. The parties also referred to this account, which I will now quote:
[translation] At about midnight on March 1, 1982, while Gauthier [the appellant] was sleeping at his brother-in-law’s residence in Lac Brôme, he was suddenly awakened by police officers from that municipality. He was arrested for questioning about the theft of a safe. No formal charges had yet been laid against him.
He was taken to the police station, to a room where officers Beaumont and Thireau [sic] wanted to question him; the latter is the chief of police. In fact, they tried to force him to answer. Thireau punched and kicked him in the head a number of times. Before they went further, he was photographed; his injuries were not yet apparent. He was then hit again, and they tried to make him confess that he was involved in the theft of a safe in Foster, a municipality located close to Lac Brôme.
Gauthier still refused to speak. He made no statement. At no time was he told why he had been arrested, and the only justification for detaining him was to make him confess to participating in the theft of the safe. Nor was he told of his right to contact his next of kin or his right to retain and instruct counsel.
At one point, Beaumont punched him so hard with a right to the head that his uniform was spattered with blood. In anger, Beaumont screamed: “I’m going to kill you fucking pig.” They continued to hit him. Then, they took him to a washroom, where they plunged his head into the toilet. As they were not yet satisfied, he was taken to another room, where they removed his clothes and started throwing burning matches at his genitals, which caused him unspeakable pain. The contents of an aerosol container were sprayed in his face. The torture continued. The defendants hung him upside down in a stairwell and clubbed him. They threatened to drop him unless he talked.
He was then taken to a basement cell, where he was given a 40-ounce bottle of liquor. They suggested he drink it to get his strength back. He refused, as he knew that it could be used against him if he smelled of alcohol.
Although he was now dressed only lightly and covered with scratches and bruises, he was driven to an isolated place, where he was tied to a metal post near a little-travelled gravel road. It was close to -25° Celsius. They returned for him one or one and a half hours later. Day was breaking; it may have been about 6:00 a.m.
He was taken back to the station, where he was told to place his frozen hands on a desk. Thireau picked up a club, struck the desk with it a few times and ordered Gauthier to confess that he had taken part in the theft or he would break all his fingers. Thireau did in fact hit Gauthier’s right hand with the club. He then hit the floor near Gauthier’s frozen feet and forced him to dance. Finally, since he would not confess, they returned him to his cell.
A little later, he was taken to the ground floor, where another officer who arrived for his shift was more conciliatory. Gauthier wanted to call his brother-in-law, whose name was Thompson. The officers agreed, but he was warned that after his release, he would have to stay at Thompson’s house. Thireau told him that if he saw him anywhere other than at Thompson’s house after he left, he would kill him.
However, they kept him in a basement cell until 7:00 p.m, when the defendant Thireau drove him to a side road in a patrol car and told him: [translation] “If I see you again, I’ll kill you.” Gauthier walked to Thompson’s house, which was a fair distance from the place where he had been dropped off.
He walked barefoot or in stocking feet, but without shoes, which he found painful to wear. He knocked on Thompson’s door with his knees, as he was unable to use his hands owing to his injuries. Thompson wanted to take him to the hospital, but Gauthier refused because he was afraid the defendants would kill him.
Thompson gave him first aid, but as this was clearly insufficient, Gauthier finally agreed to go to the Cowansville hospital, where he stayed for a few days. Still afraid to initiate an investigation of the defendants because he feared for his life, he did not give the real cause of his injuries but said that he had suffered frostbite while hitchhiking.
He then spent a week in the home of another brother-in-law. He eventually left for Vancouver, where he was unable to work for at least six months and lived on welfare benefits. He then returned to Yellowknife.
He spoke to no one about what had happened to him, and it was not until 1985, following disclosures by police officers from the municipality who had not been involved in the events, that he received a telephone call from a representative of the Police Commission.
Afraid that it was a trap, he hung up. He then contacted a member of the Royal Canadian Mounted Police in Yellowknife, who gave him some advice on how to determine whether the caller was indeed a member of the Police Commission. After the call proved to be genuine, he made a sworn statement setting out the events concerning himself, but it contained two falsehoods: he stated that he had had nothing to do with the theft of the safe in Foster and that he had not gone there while in Quebec.
He then testified before the Police Commission under police protection. After the inquiry, he returned to Western Canada. He learned between 1985 and 1988 that the Crown had laid criminal charges against the defendants and that he would eventually be called to testify at their trial.
He testified at their preliminary inquiry in January 1986 and later at the trial in February 1988. Beaumont and Thireau were convicted of aggravated assault and sentenced to one and three months in prison, respectively, and to a fine. The Court of Appeal later increased this sentence to one year in prison for Beaumont and two years for Thireau.
It should be mentioned that prior to testifying before the Police Commission in 1985, Gauthier pleaded guilty to the charge of theft of the safe in Foster in 1982. He was represented by counsel at that time as well as during the Police Commission’s inquiry and at the police officers’ preliminary inquiry and trial.
In the course of the trial, he even discussed with his lawyer the possibility of seeking an order for compensation under the Criminal Code. Crown counsel talked him out of doing so, as he was afraid that an order for compensation would result in a reduced sentence.
On March 31, 1988, Gauthier contacted his counsel, who are now helping him obtain compensation for the ill-treatment he suffered.
The appellant decided to sue the respondents for damages on March 31, 1988, although his action was not served on them until May 3, 1988. He alleged in his amended declaration that the respondents Beaumont and Thireault were liable for his injuries because they wilfully and intentionally committed a fault within the meaning of art. 1053 of the Civil Code of Lower Canada (“C.C.L.C.”) and interfered with his rights under the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec Charter”). The appellant further submitted that the respondent Town of Brome Lake was also liable because the municipality’s officials knew or ought to have known about the conduct of the other two respondents and it did nothing to dismiss or reprimand them or ensure that the fundamental rights of arrested persons were respected.
36 The appellant asked that all the respondents be ordered jointly and severally to pay $300,000 in compensatory damages and $100,000 in exemplary damages.
37 On February 21, 1990, Boily J. of the Superior Court dismissed the action on the basis that it was prescribed. On October 4, 1995, the Court of Appeal unanimously affirmed Boily J.’s decision and dismissed the appeal. The appellant applied to this Court for leave to appeal, which was granted on October 3, 1996, [1996] 3 S.C.R. viii. The Town of Brome Lake was the only respondent heard by the Court. The respondents Beaumont and Thireault did not make an appearance at any point during this appeal, even though they had been duly notified of the appeal.
II. Statutory Provisions
38 The relevant statutory provisions are as follows:
Cities and Towns Act, R.S.Q., c. C-19
586. Every action, suit or claim against the municipality or any of its officers or employees, for damages resulting from offences or quasi‐offences, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding.
Civil Code of Lower Canada
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
1054. . . .
Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed.
1056c. The amount awarded by judgment for damages resulting from an offence or a quasi-offence shall bear interest at the legal rate as from the date when the action at law was instituted.
There may be added to the amount so awarded an indemnity computed by applying to the amount, from such date, a percentage equal to the excess of the interest rate fixed according to section 28 of the Act respecting the Ministère du Revenu (R.S.Q., chapter M-31) over the legal interest rate.
2232. Prescription runs against all persons, unless they are included in some exception established by this code, or unless it is absolutely impossible for them in law or in fact to act by themselves or to be represented by others.
Saving what is declared in article 2269, prescription does not run, even in favor of subsequent purchasers, against those who are not born, nor against minors or persons of full age who are unable to give consent, with or without tutors or curators.
Prescription runs against absentees as against persons present and by the same lapse of time, saving what is declared as to persons authorized to take provisional possession of the estate of an absentee.
Charter of Human Rights and Freedoms, R.S.Q., c. C‐12
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.
III. Judicial History
A. Superior Court
39 Boily J. noted that an absolute impossibility to act is an inability in fact that is to be assessed by the court, and that the test laid down by the Superior Court in Semmelaack v. Ferguson (1941), 48 R.L. 163, at pp. 166-67, is still valid today:
[translation] [A]n inability in law or in fact to act is absolute where the person against whom prescription ran was in a position equivalent to superior force and no amount of diligence on his part would have allowed him to interrupt it. . . .
40 Boily J. considered the opinion of the appellant’s psychiatric expert and concluded that it was corroborated by that of the respondent’s psychiatric expert. Both experts 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 his assailants until March 1988.
41 Despite this uncontradicted evidence, Boily J. stated
[translation] [that 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 [the respondent’s psychiatric expert] 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 [the appellant’s psychiatric expert] 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 rules on prescription are rules of public order. The social order depends on them. The court cannot out of sympathy — however strong it may be — or daring give them an interpretation they cannot bear. 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, 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.
(Sup. Ct. Bedford, No. 455‐05-000059‐886, February 21, 1990, J.E. 90‐871, at pp. 16‐18 of the full text.)
42 Being of the view that the appellant had not been sufficiently diligent during the six years following the assault and that the court should not let itself be carried away by fairness in creating [translation] “an imaginary suspension, proportionate to the seriousness of the assault on the plaintiff” (p. 18), Boily J. declared the appellant’s action to be prescribed in light of the six-month extinctive prescription provided for in s. 586 of the Cities and Towns Act.
43 Boily J. then considered the appellant’s argument that the 30-year prescription of the Civil Code of Lower Canada applied to his action founded on the Quebec Charter. There was no question in Boily J.’s mind that certain of the appellant’s fundamental rights had been interfered with. If those acts of interference are considered to be delicts, however, the short prescription period provided for in the Cities and Towns Act should apply, since the Quebec Charter specifies no other period.
B. Court of Appeal, [1996] R.D.J. 126
44 In the view of Michaud C.J.Q., with whom Proulx J.A. and Trudel J. (ad hoc) concurred, Boily J.’s conclusion was correct. He considered (at pp. 131‐32) that it
[translation] was not absolutely impossible [for the appellant] to initiate legal proceedings against the respondent police officers and municipality once he had testified against them in 1985 at the inquiry of the Comité de déontologie policière and in 1986 at the preliminary inquiry. . . . If the appellant was capable of so testifying, it was clearly possible for him to initiate the appropriate proceedings against the respondents at the latest after the respondents’ preliminary inquiry in 1986. Even if this last event were taken as the starting point, his action was prescribed long before he brought it. [Emphasis in original.]
45 The Court of Appeal concluded by stating that it considered Boily J.’s reasoning on the extinctive prescription applicable to an action founded on the Quebec Charter to be entirely consistent with the applicable law.
IV. Issues
46 This appeal raises the following issues:
A. Is the appellant’s action prescribed?
B. If not:
1. are the respondents liable for the damage sustained by the appellant?
2. what is the quantum of the damages to be awarded to the appellant?
3. should exemplary damages be awarded under the second paragraph of s. 49 of the Quebec Charter, and if so, what is the quantum thereof?
4. if applicable, when do the interest at the legal rate and the additional indemnity provided for in art. 1056c C.C.L.C. begin to run?
5. should extrajudicial costs be awarded?
V. Analysis
A. Is the Appellant’s Action Prescribed?
1. Introduction
47 Even though the cause of action arose the night of March 1 to 2, 1982 and the action was brought on May 3, 1988, the appellant submits that his action against the respondents is not prescribed, since it was absolutely impossible for him in fact to act until March 1988 because the respondents Beaumont and Thireault had caused him to fear for his life and the lives of his family. He argues that his absolute impossibility in fact to act suspended the six-month prescription provided for in s. 586 of the Cities and Towns Act which was applicable in this case.
2. Suspension of Prescription
48 Cases of suspension of prescription, including those based on an absolute impossibility in fact to act, are exceptions to the rule set out in the first paragraph of art. 2232 C.C.L.C.: prescription runs against all persons. Prescription is a concept essential to the civil law whose rationale lies in practical utility and social interest. As Mazeaud wrote, [translation] “[i]t is in the interest of public order for obligations to be eliminated after the creditor fails to act for a long period.” (H., L. and J. Mazeaud, Leçons de droit civil, t. II, vol. 1, Obligations: théorie générale, 8th ed., by F. Chabas, 1991, at p. 1206.) Prescription appears as an institution designed to introduce security into legal relations by mitigating the consequences of time’s erosive effect on memory and on the value of evidence, and by encouraging creditors to act diligently. Lamer J. (as he then was) wrote the following in Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113, at p. 126, where he was dealing specifically with time limits other than those of pure prescription:
. . . care must be taken not to relax the computing of deadlines, substantive as well as procedural, to the point that they become almost inoperative, for such clauses serve the ends of justice as they are designed to provide special protection for certain rights which under certain conditions the legislator wishes to give priority, be that to the detriment of the rights of others, by providing them protection from litigants who act belatedly. . . .
Accordingly, the concept of it being “absolutely impossible . . . in fact to act”, provided for in art. 2232 of the Civil Code, should not be unduly extended as a basis for a suspension of deadlines.
49 The appellant relies on one of the causes of suspension of prescription set out in art. 2232 C.C.L.C.: that it was absolutely impossible in fact to act. To determine the exact scope of this cause of suspension of prescription, it will be helpful to understand the origins and evolution of this civil law concept.
3. Origin of the Concept of Absolute Impossibility in Fact to Act
50 In ancient law, the judge-made rule contra non valentem agere non currit praescriptio (prescription does not run against a person who has been prevented from acting) was applied very broadly. Under this maxim, judges gave themselves the right to decide whether there was in fact a cause that justified disregarding prescription (H. Roland and L. Boyer, Adages du droit français (3rd ed. 1992), at p. 114). Dean Baudry-Lacantinerie and Professor Tissier (Traité théorique et pratique de droit civil -- De la prescription (3rd ed. 1905)) stated the following concerning this generous application of the maxim (at p. 283):
[translation] The first authors to formulate the rule seem to have only had in mind the case of legal impediment. But the authors and the courts were quick to go much further; they extended the rule to every case in which there seemed to them to be any impediment whatsoever to an action by someone against whom prescription ran: minority, insanity, dotalité, condition, term, contingent nature of the right, absence, ignorance, superior force and fortuitous event, and any circumstance considered to prevent the person from acting was also regarded as resulting in the suspension of prescription.
51 The framers of the French Civil Code (“C.C.”) did not of course wish to give the courts this much latitude, as can be seen from art. 2251 C.C.:
[translation] Prescription runs against all persons, unless they are under some exception established by a law. [Emphasis added.]
Prescription therefore had to be assessed ex lege rather than ex judicio. The wording of art. 2251 C.C. was clear in this respect. As Dean Baudry-Lacantinerie and Professor Tissier, supra, stated (at pp. 283-84):
[translation] The framers of the civil code intended article 2251 to put an end to these debates; they did not reproduce the maxim; they intended not to apply it. They were in fact wise to do so; they wished to eliminate an inexhaustible source of disagreement, trials and inextricable difficulties and to prevent a return to abuses that had frequently been noted.
52 The French courts nevertheless interpreted art. 2251 C.C. narrowly, noting that the law dealt only with causes of suspension founded on considerations relating to the person him- or herself. They justified this position by referring to a number of provisions of the French Civil Code: [translation] “Prescription runs against all persons . . .” (art. 2251 C.C.); “Prescription does not run against non‐emancipated minors and adults in guardianship . . .” (art. 2252 C.C.); “. . . between spouses” (art. 2253 C.C.); “. . . against an heir benefitting from inventory” (art. 2258 C.C.). (Emphasis added.) The French courts held that the “exception established by a law” was limitative to this extent only, and that the codifiers, who had said nothing about suspension for causes relating to events rather than to the person, had accordingly not barred judges from deciding that prescription was suspended in light of the circumstances. Thus, re-emerged in French case law the old maxim contra non valentem agere (Roland and Boyer, supra, at p. 115; Juris-classeur civil, arts. 2251-59, fasc. H, by J.-J. Taisne, No. 89; for court decisions, see also F. Terré, P. Simler and Y. Lequette, Droit civil -- Les obligations (6th ed. 1996), at pp. 1104-5; B. Starck, H. Roland and L. Boyer, Obligations, vol. 3, Régime général (5th ed. 1995), at p. 173).
53 The commissioners responsible for the drafting of the Civil Code of Lower Canada were aware of this re-emergence of the maxim in French law, with the result that the concept of impossibility to act as a cause of suspension of prescription was codified in the first paragraph of art. 64 of Title Nineteenth of Book Third of the draft Civil Code of Lower Canada:
64. Prescription runs against all persons, unless they be specially exempt according to law or the established jurisprudence, or that they are unable to act.
(Third Report of the Commissioners appointed to codify the Laws of Lower Canada in civil matters (1865), at p. 531.)
The commissioners stated the following with respect to this provision:
Article 64 declares, as a general principle, that prescription runs against all persons, unless there be an acknowledged exception or impossibility of acting. This last modification is the reproduction of the well known rule contra non valentem agere non currit præscriptio. It is remarkable that it is not textually inserted in the French code, although it is the basis of all its particular provisions, and has an extensive application to many other cases which do not result from the natural or legal state of the parties concerned. There was no doubt some apprehension of the too great extent which commentators gave under the ancient law to the rule of impossibility and of the distinctions to which it might have led. [Emphasis added.]
(Third Report of the Commissioners, supra, at p. 425.)
The commissioners had originally intended to include impossibility to act as a cause of suspension. Like the framers of the French Civil Code, they were aware of the risk that the role of prescription would be too limited were so general a cause of suspension to be introduced. They therefore proposed the present version of art. 2232 C.C.L.C., electing to retain the rule of the ancient law, while limiting its scope in order to avoid the abuses to which it had given rise:
Under similar views, the Commissioners have thought advisable by the amendment 64a [art. 2232] at once to preserve the rule [of impossibility] and to restrict it in so far as was necessary to simplicity in its provisions and to its adaptation to the present state of intercourse between nations and countries which have been drawn nearer by the increased facilities of communication. For these reasons it is suggested that the impossibility ought to be absolute in fact or in law, excluding the means of acting by intermediate agent. It is also there stated that the exceptions under the law, which are not at the same time founded on the impossibility to act thus limited, will be found specified in the code, which will thus make the rule more certain and appears devoid of any danger.
(Third Report of the Commissioners, supra, at p. 425; see also P. Martineau, La prescription (1977), at para. 214, at p. 216.)
Thus, it appears that absolute impossibility in fact to act has always been expressly included among the causes of suspension of prescription recognized by the Civil Code of Lower Canada.
54 This concept has traditionally been interpreted narrowly and objectively in Quebec civil law. In Semmelaack v. Ferguson, supra, at pp. 166-67, Forest J. wrote the following:
[translation] [A]n inability in law or in fact to act is absolute where the person against whom prescription ran was in a position equivalent to superior force and no amount of diligence on his part would have allowed him to interrupt it. . . .
Forest J. equated impossibility to act with superior force and gave an objective interpretation of how impossibility to act affects the person against whom prescription runs.
55 The subsequent cases focused on the absoluteness of the impossibility. For example in Procureur général du Québec v. Garantie (La), Cie d’assurance de l’Amérique du Nord, [1979] C.S. 216 (reversed by the Court of Appeal on other grounds, November 14, 1983, C.A. Mtl., No. 500-09-000291-799, J.E. 83-1142), Gratton J. stated, at p. 226:
[translation] The codifiers added to article 2232 C.C. which drew upon art. 2251 C.N. the words “or unless it is absolutely impossible for them in law or in fact to act”. I stressed the word “absolutely” at the outset because it must be given its ordinary meaning of “allowing for no restriction, alleviation or exception” (Larousse); if the legislature included it in the article, it intended to say something, and the article has been interpreted accordingly. This does not mean that no cases can exist. Two examples would be a kidnap victim who is confined indefinitely or an accident victim who lies in a coma for a long period.
According to Mignault and Rodys, kidnapping was in practice the only example of absolute impossibility to act (P.-B. Mignault, Le droit civil canadien, t. 9, 1916, at p. 452; Traité de droit civil du Québec, t. 15, by W. Rodys, 1958, at p. 195).
56 Is so narrow an interpretation of impossibility to act justified? The addition of the modifier “absolutely” to the words “impossible in fact to act” should not be interpreted as showing an intention to minimize the scope of this cause of suspension of prescription. Unlike their French counterparts, the codifiers of the Civil Code of Lower Canada expressly established absolute impossibility in fact to act as a cause of suspension of prescription in art. 2232 C.C.L.C. It is therefore unnecessary to rely on the French courts’ ingenious interpretation of art. 2251 C.C. in order to include absolute impossibility in fact to act as a cause of suspension of prescription in Quebec civil law. This cause of suspension must be interpreted in a manner consistent with the codifiers’ intention and with the importance of the institution of prescription for public order and the security of legal relations. In La prescription, supra, at p. 353, Professor Martineau described the purpose of art. 2232 C.C.L.C. as follows:
[translation] 343 - Impossibility in fact - The first paragraph of article 2232 C.C. states that prescription does not run against persons for whom it is “absolutely impossible . . . in law or in fact to act by themselves or to be represented by others”.
This is the contra non valentem agere non currit praescriptio rule. [Emphasis added.]
Professor Martineau appears to have felt that the modifier “absolutely” does not limit the application of the impossibility in fact to act concept to extreme cases, as was suggested by Mignault and Rodys, among others. Nowhere in the parts of his book where he discussed absolute impossibility in fact to act did he refer to superior force as a prerequisite to this cause of suspension (see Martineau, supra, at pp. 215-19 and 353-55). As Langelier stated, [translation] “[t]he word absolute ordinarily means something that applies to everyone, but that is not what it means here, since in that case the rule in our article would be meaningless” (F. Langelier, Cours de droit civil de la Province de Québec, t. 6, 1911, at p. 486 (emphasis in original)).
57 In Beaubien v. Laframboise (1925), 40 B.R. 194, at p. 197, Dorion J.A. of the Court of Queen’s Bench in turn qualified the use of the term absolute:
[translation] In their report, the Quebec codifiers stated that the impossibility is absolute; it is nevertheless necessary to stay with what can occur in practice and give the word “impossible”, which is unambiguous, its ordinary meaning.
58 The notion of absolute impossibility in fact to act thus does not depend exclusively on superior force for its definition. What sources will it therefore draw on? An analysis of both French and Quebec law is required.
4. Absolute Impossibility in Fact to Act
(a) In French Civil Law
(i) Broadening of the Concept
59 In the formulation frequently reproduced by the Cour de cassation, prescription does not run against a person for whom it is absolutely impossible to act owing to some impediment resulting from superior force (for relevant cases, see Juris-classeur civil, arts. 2251-59, supra, No. 89; Terré, Simler and Lequette, supra, at pp. 1104-5). However, this general formulation is ambiguous. In a brilliant comparative analysis, Dean Carbonnier pointed out that the impossibility to act rule was not perfectly consistent with the general theory of superior force, as it was sometimes broader and sometimes narrower in scope (J. Carbonnier, “La règle contra non valentem agere non currit praecriptio” (1937), 57 Rev. crit. lég. et jur. 155). The impossibility to act concept has proved once again to be an equitable remedy, although this time the French courts have used it with far more circumspection (Carbonnier, supra, at p. 182).
60 The fact that the impossibility to act concept is distinct from that of superior force has allowed the scope of the former to be defined more broadly.
61 Thus, an insane woman who was institutionalized but not interdicted, and therefore not covered by the causes of suspension set out in the French Civil Code, applied for a disability pension 13 years after ceasing all salaried employment because she had been committed to a psychiatric institution. This was well beyond the short time limit for applying for benefits under the French Code de sécurité sociale. The delay could be attributed to the plaintiff’s mental state. The Cour de cassation ruled in favour of the plaintiff, held that the action was not prescribed and stated:
[translation] Whereas the appeal alleges that the judgment erred in allowing this action brought after the expiry of the time provided for in art. 308 of the Code de sécurité social (art. 53 of the order of October 19, 1945) when there was an administrator of M.’s property, and whereas the aforementioned time was not subject to suspension; -- But whereas prescription does not run against a person for whom it is absolutely impossible to act; -- And whereas it can be seen from the judgment that M. had received no medical insurance benefits during the period in question, since her mental state made it impossible to determine her rights under the social security legislation, that it was not certain she did qualify for social assistance until September 1959, when after her condition improved she was able to provide the necessary specific information, and that it was thus established that she was not able to assert her rights at any time before the expiry of the statutory period subsequent to the certification of her disability; -- Whereas the triers of fact found in light of this certification that the plaintiff in the instant case was properly relying on superior force and that the provisions at issue in the appeal were inapplicable;
For these reasons, dismisses the appeal. [Emphasis added.]
(Cass., 2e Ch. civ., 10 February 1966, D.1967.315)
According to Prévault, who wrote the commentary on this decision, the prescription of the action was suspended owing to the creditor’s mental state, which was a factual state beyond her control. It was necessary to link the person’s inability to act to a fact beyond her control in light of the position taken by the French courts that there are no exceptions to the basic principle in art. 2251 C.C. other than the causes provided for by law, where the cause of suspension relates to the person of the individual who raises it. The commentator noted that the law does not protect insane inmates who are not interdicted against the prescription of rights that they should have asserted in time:
[translation] It can therefore be concluded that the short prescription periods also run against insane inmates. This rule is of course unjust (Baudry-Lacantinerie (Traité théor. et prat. de droit civil, t. 28, no 424) wrote “it is strange, as this is in fact a situation in which the need for suspension is most strongly felt, since prescription is especially threatening in that it is shorter . . .”); but it is inescapable. . . . Although consistent with the letter of the law, this solution was nevertheless criticized . . .; short prescription periods are based on a presumption of payment, but if it was impossible for the creditor to bring an action for a certain period, the presumption based on his or her failure to act collapses. . . . In light of the rigidity of the rules of prescription, an exegetic interpretation of the provisions lead to the denial of all protection to an insane inmate who is not interdicted.
The maxim “contra non valentem agere . . .” should play the role of a rule of equity in favour of legally incapable persons, especially those whose interests the legislator has not seen fit to protect, that corrects flaws in the law and avoids the unjust consequences thereof.
(Cass., 2e Ch. civ., 10 February 1966, D.1967.315, Annot. Prévault, at p. 317.)
(ii) Impossibility to Act and Fault on the Part of the Debtor
62 Relying on equity and events over which the creditor has no control, the French courts have also held that prescription is suspended if the holder of the right failed to act owing to a wrongful initiative or shortcoming of his of her adversary (Juris-classeur civil, arts. 2251-59, supra, Nos. 106 and 107). As Troplong mentioned in De la prescription (4th ed. 1857), t. 2, at paras. 723-25, at pp. 293-94, this possibility was contemplated as early as 1828:
[translation] Let us now discuss the non-personal causes of suspension, to which the Code does not refer. They all involve a strict application of the contra non valentem rule.
First of all, there are impossibilities that result from an agreement. . . .
Others result from assaults and impediments coming from the adverse party. This is why the court of Bordeaux held in a March 21, 1828 decision that the drawer of a bill of exchange could not raise the five-year prescription period against the bearer where, before the expiry of that period, the bill was returned to the drawer in confidence and he or she retained it wrongfully, thereby making it impossible to bring an action. [Emphasis added.]
A contemporary of Troplong’s, Le Roux de Bretagne, stated the following:
[translation] The principal basis of suspension is the contra non valentem agere non currit præscriptio rule of the ancient law. As was mentioned above, while this rule has not been reproduced verbatim in the code, it is the necessary consequence of a number of its provisions. Thus, article 1304 of the Napoleonic Code provides that the time for bringing an action in nullity or in rescission of an agreement does not begin running, in the case of violence, until the day it ceases or, in the case of mistake or fraud, until the day it is discovered; also, article 488 of the code of civil procedure provides that the time for a civil action based on forgery, fraud or the discovery of evidence withheld by the adverse party does not begin running until the day the forgery, fraud or new evidence is discovered. There has been no hesitation to apply the rule in question in cases of superior force in which the interception of communications or an interruption of the course of justice made it absolutely impossible to act.
. . .
Thus, prescription is suspended as long as the impediment the debtor intentionally places in the way of the creditor’s action exists. . . . [Emphasis added.]
(A. Le Roux de Bretagne, Nouveau traité de la prescription en matière civile (1869), t. 1, at paras. 585 and 587, at pp. 395-96.)
A more recent commentary stated the following:
[translation] The position of the courts is changing, as they now tend to consider the attitude not only of the holder of the right, but also of a person who tries to manipulate a prescription period to his or her advantage. The Court of Cassation feels that the triers of fact can suspend prescription in light of the debtor’s attitude by finding it to be a fact that objectively prevented prescription from running (Cass. com., 14 May 1969; Bull. civ. IV, No.167. -- Cf. to the same effect Aix-en-Provence, 1 February 1974: Dr. marit. fr. 1975, at p. 272, Annot. P. Bonassies). The courts will therefore try to avoid prescription by applying the contra non valentem agere rule . . . if the debtor appears to have acted in bad faith. The appearance of these subjective concepts of good and bad faith on the part of the parties is very interesting, as it enables the court to adopt the attitude it considers fairest, thereby ensuring that the rules of prescription are not used to the detriment of a creditor whose conduct is beyond reproach. [Emphasis added.]
(M. Buy, “Prescriptions de courte durée et suspension de la prescription”, J.C.P. 77, I, 2833, at para. 28.)
The maxim contra non valentem agere, on which the notion of impossibility to act is based, is thus distinct from superior force, which is a purely external cause that can be assessed objectively, and requires a subjective assessment of the impossibility to act based on the circumstances of the victim of the fault that caused it. As Carbonnier stated, supra, at p. 180, [translation] “[t]he suppression of an expired prescription period thus seems to constitute fair relief for the harm caused by the debtor.”
63 In summary, the way in which the impossibility to act concept has developed in French jurisprudence follows the approach taken by such authors as Troplong and Le Roux de Bretagne a few decades after the institution of the French Civil Code.
64 These comments on French positive civil law, combined with the legal rules already set out in the Civil Code of Lower Canada, will be helpful in developing and articulating the notion of absolute impossibility in fact to act.
(b) In Quebec Civil Law
65 In Quebec, the authors and the courts agree that prescription is suspended where the impossibility to act results from the fault of the debtor of the obligation (Martineau, supra, at p. 354; J. W. Durnford, “Some Aspects of the Suspension and of the Starting Point of Prescription” (1963), 13 Thémis 245, at p. 273; L. Langevin, “Suspension de la prescription extinctive: à l’impossible nul n’est tenu” (1996), 56 R. du B. 265, at p. 273; Oznaga v. Société d’exploitation des loteries et courses du Québec, supra, at p. 127; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554, at p. 603). This is just one expression of the contra non valentem agere rule, which reflects a principle of fundamental justice that is also expressed in the doctrine of abuse of rights, the maxim fraus omnia corrumpit, and the moral precept that no one should profit from his or her bad faith or wrongdoing (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).
66 Another expression of the contra non valentem agere rule is found in the fact that the prescription period for an action in rescission of a contract based on fraud or error does not begin to run until the day the fraud or error is discovered (art. 2258 para. 2 C.C.L.C.). The Civil Code of Lower Canada also recognizes the psychological state of fear as a cause of suspension of prescription in art. 2258, which provides that the prescription of an action in rescission of contract for fear only runs from the day the fear ceases.
67 It is a logical extension of these civil law rules and principles that the psychological state of fear will also suspend prescription in delictual matters where the fear is caused by the defendant’s fault. Prescription is based, inter alia, on a presumption that the holder of a right waives the exercise thereof if he or she is not diligent in asserting it. If the plaintiff is not in a position to freely and voluntarily waive the exercise of his or her right and is unable to act owing to the psychological hold the defendant has over the plaintiff by inspiring fear in him or her, neither public order nor the public interest, nor even a legitimate security of legal relations, which prescription is intended to foster, will be served. Quite the contrary. As Professor Langevin stated, supra, at p. 272 of her article:
[translation] Public order is not jeopardized if the courts take into account the reality of psychologically traumatized victims who bring civil actions several years after the events. On the contrary, public order would be offended if the prescription mechanism actually prevented a given class of victims from suing their abusers.
68 What are the characteristics of a fear that causes an absolute impossibility in fact to act within the meaning of art. 2232 C.C.L.C.?
(c) Fear Causing an Absolute Impossibility in Fact to Act
69 The Civil Code of Lower Canada itself deals with the notion of fear. Article 995 defines the fear that amounts to lack of consent. It reads as follows:
995. The fear whether produced by violence or otherwise must be a reasonable and present fear of serious injury. The age, sex, character and condition of the party are to be taken into consideration.
70 A link can be drawn between fear as vitiating consent and fear as a cause of impossibility to act for the purposes of art. 2232 C.C.L.C. Fear makes it impossible for the victim to fully exercise his or her will, whether in the context of contractual freedom or of legal proceedings. As with the assessment of fear vitiating consent, it is necessary in assessing fear as a cause of suspension of prescription to avoid undermining the security of legal relations, which is the rationale for the prescription system, while at the same time accurately determining whether the fear was a deciding factor in the impossibility to act. As in contractual matters, it must be determined in each particular case whether or not the fear deprived the victim of his or her free will and thus of the will to bring an action. The criteria of art. 995 C.C.L.C. and the doctrinal commentaries on the subject are accordingly most relevant and must serve as a basis for assessing fear as a cause of impossibility to act for the purposes of art. 2232 C.C.L.C.
71 Professor Baudouin (now a judge of the Court of Appeal) stated the following about the objective characteristics which fear representing lack of consent must have:
[translation] Determinative fear - The first condition is that the fear be determinative, that is, that it deprive the contractor of the free choice to enter into a contract, or at least oblige the contractor to enter into a contract on conditions other than those he or she would ordinarily have accepted. To avoid introducing excessive fragility to contracts and enable the courts to determine more accurately whether the fear was determinative, the Civil Code requires the judge to consider two objective factors and one subjective factor. Article 995 C.C. provides that the fear must be a present and reasonable fear of serious injury.
Present fear - First of all, the fear must be present, that is, the contractor must in fact feel it at the time of formation of the contract and of the expression of the contractor’s will. The victim must therefore perceive that the danger threatening him or her is imminent. Although the fear must be present, violence need not be. For example, psychological violence may have been exercised beforehand. It is enough that the fear still exist at the time of formation of the commitment.
Serious harm - The second objective condition is that the fear be a fear of serious harm. The intention of the law here is to make it impossible to cancel a contract entered into as a result of mere pressure; it therefore requires that the harm the contractor is threatened with have a certain seriousness in itself. Thus, while an injury that is physical (death, injuries), emotional (defamation, blackmail) or pecuniary (ruin) might at first glance be considered serious per se, a mere disadvantage, annoyance or additional difficulty cannot be held to be serious. [Italics in original; underlining added.]
(J.-L. Baudouin, Les obligations (3rd ed. 1989), at p. 138; see also: J. Pineau and D. Burman, Théorie des obligations (2nd ed. 1988), at pp. 112-14; M. Tancelin, Des obligations: contrat et responsabilité (4th ed. 1988), at pp. 76-77.)
72 Once the objective element of the fear, that is, that it is present and that it involves serious harm, has been established, what is the test to be applied to assess the effect of the fear on the victim? On first reading, the two sentences of art. 995 C.C.L.C. appear contradictory. The first sentence, which requires a reasonable fear, suggests an assessment in abstracto of the effect of the fear, while the second sentence refers to the age, sex, character and condition of the victim, which suggests an assessment in concreto. The Quebec authors agree that an assessment in concreto of the determining nature of the fear on the victim’s will is required (Baudouin, supra, at p. 139; see also Pineau and Burman, supra, at pp. 113-14; Tancelin, supra, at p. 77; A. Larouche, “Chronique de droit des obligations” (1973), 4 R.G.D. 201, at p. 211). This is logical. When caused by the defendant’s fault, the fear is a psychological injury sustained by the victim and must be assessed subjectively, in light of the victim’s personal situation, as is the case with the victim’s other damages. In its assessment in concreto of the determinative nature of the fear, the court may have recourse to expert assessments and take into account the victim’s testimony (Langevin, supra, at p. 276).
73 Even if there is a subjective assessment of the effect of the fear on the victim, not every fear constitutes a cause of impossibility to act as soon as it exists in the victim’s mind. Professor Baudouin’s comments on the subjective element of the fear vitiating consent are highly relevant to this analysis:
[translation] Reasonableness - Finally, the fear must be reasonable. The judge must take the victim’s age, sex, character and condition into account, and thus assess the victim’s personality. Some people, owing to their age, for example, are more receptive to fear than others and are therefore more likely to be influenced by it.
There seems to be a contradiction between the objective condition that there be a fear of serious harm and the subjective condition that this fear be reasonable. It is conceivable that an individual might have a real, and therefore reasonable, fear in the circumstances and that this fear might therefore have a determinative effect on his or her will, but that the injury with which the individual is threatened is not, objectively speaking, serious, although he or she thinks it is. The contradiction is more apparent than real. The law merely requires by this twofold test that the fear not be purely subjective, that is, that it not be the product solely of the victim’s imagination or sensitivity. The fear must be in keeping with the external facts. Thus, the harm must be real and certain, not imaginary, but to decide whether the fear was in fact determinative of consent, the court must also conduct a subjective assessment of its impact in light of the contractor’s personal situation. [Emphasis added.]
(Baudouin, supra, at p. 139.)
This analysis indicates that a purely subjective fear cannot constitute a cause of impossibility to act under art. 2232 C.C.L.C., just as it cannot constitute a cause of rescission of a contract (Tancelin, supra, at p. 77). To be a cause of impossibility to act, the fear must be of an objectively serious harm, must exist throughout the period when it was 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. As the appellant stated in his factum, one must avoid allowing torturers to avoid liability by merely choosing their victims.
5. Application to the Facts
74 The trial judge recognized that the two psychiatric experts heard at trial, one called by the plaintiff and the other by the defence, agreed that it was psychologically impossible for the appellant to bring legal proceedings against the respondents until March 1988. However, he drew a distinction between the appellant’s lack of courage to initiate legal proceedings and absolute impossibility. In his view, the appellant simply lacked courage whereas [translation] “it was highly or likely or ‘practically impossible’ for him to act” (p. 16). He was not convinced that the appellant was indeed in a state of absolute impossibility throughout the long period. He stated that [translation] “the chronic period could have been avoided had the plaintiff consulted [a specialist]” and that this was therefore not a case in which [translation] “human vigilance and ingenuity” would not have enabled him to act (at p. 18).
75 With respect, 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 in this case. It must be recognized that fear, caused by an assailant’s violence or torture, can take away the victim’s ability to act, or, in other words, make it absolutely impossible in fact for the victim to act against the assailant.
76 The record contains uncontradicted evidence that the respondents Beaumont and Thireault 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, even extreme, harm.
77 The psychiatric experts assessed the appellant, and both of them recognized that he had suffered 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. In their respective reports, Dr. Béliveau, the appellant’s expert, and Dr. Vacaflor, the respondent’s expert, concluded that this fear had prevented the appellant from initiating legal proceedings against the respondents until March 1988 (Dr. Béliveau, Case on Appeal, at p. 50; Dr. Vacaflor, Case on Appeal, at p. 55). The following extracts from the evidence at trial describe the appellant’s state of fear during the six years of the acute and subacute post-traumatic stress phases:
Testimony of Dr. Béliveau:
[translation] [I]t’s because of the phobias. . . . The person avoids all situations that might reactivate the traumatic anxiety. A little while ago, I mentioned people who avoid returning to the scene of the assault, who avoid encountering their assailants. This mechanism of course means that someone avoiding this kind of situation will not go looking for trouble by returning to it in a situation such as a trial. They know what a trial means. It means accusing and so on. It means reliving the entire traumatic situation. So this is what I meant when I said that he was, to use the same words I used earlier, most likely prevented from taking any action.
. . .
It’s clear that you are here in an action brought against police officers, and that you find yourself in a justice system. When I said it was highly likely that a person of average intelligence and from a certain background, and who is at the same time less well informed, might far more easily be afraid at that time to finally take on the policemen who assaulted him, out of a fear at that time of reprisals. It’s as if in so doing . . . he would really be looking for serious reprisals. . . . [I]t’s quite clear that a trial, an indictment in a justice system, I think that . . . myself, I work a bit in this environment, and I hear about it, too. People have a sort of image that you don’t take on a policeman; anyway that’s how it was not too long ago. You didn’t take on, you didn’t sue a policeman because the system was designed so that you couldn’t win against a policeman. It’s clear that once you have this perception . . . and in addition you have a sort of phobia against being in the assailant’s presence, you will avoid putting yourself in a situation where you will challenge him. There will, incidentally, necessarily be reprisals for having dared take on a policeman who was the assailant. That’s how I see it. That’s why I concluded that it most likely contributed to preventing him. [Case on Appeal, at pp. 273-74 (emphasis added).]
Report of Dr. Vacaflor:
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. [Case on Appeal, at p. 54 (emphasis added).]
Dr. Vacaflor explained what he meant by practical impossibility by stating that it was an impossibility similar to that of an ordinary person who, although physically able to climb into the ring to face the world heavyweight boxing champion, would be too afraid to do so because such a confrontation would put his or her life in danger:
. . . I mean to say that fear can have a paralyzing effect. . . . So, we could not call that an absolute impossibility. I guess I could climb into the ring and get smashed. . . . I think that’s a practical impossibility meaning strong, intense. [Case on Appeal, at p. 345 (emphasis added).]
78 The only conclusion I can accordingly draw, 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, when the respondents Beaumont and Thireault were convicted of assaulting the appellant and sentenced to prison. The effect of this 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 the two respondents, who deliberately, and through their own fault, placed the appellant in this profound state of fear. It would be contrary to the fundamental principles of our civil law for these respondents to profit from the violence and torture they inflicted on the appellant by being sheltered from any proceedings for the damage they caused. In requiring an insurmountable impossibility, the trial judge appears to have applied an objective reasonable person legal standard. However, as Professor Langevin stated, supra, at p. 276:
[translation] . . . how does he or she [the trial judge] know, upon setting the psychiatric assessments aside, how this reasonable person will react in the same situation? Every person reacts differently to a violation of his or her physical and psychological integrity. So behind this “wonderful fictitious legal individual of the ordinary reasonable person” lies the judge’s point of view.
79 The trial judge and the Court of Appeal felt that once the appellant had testified under police protection at the Police Commission’s inquiry and at the preliminary inquiry of the two respondents Beaumont and Thireault, it was no longer absolutely impossible in fact for him to act. However, it should be noted that the appellant was not testifying in his own action for damages. In both proceedings, he was compelled by way of subpoena to testify and was under police protection. It was only once the defendants had been convicted and sent to prison that he was sufficiently free of his fear to be able to act. Dr. Béliveau explained the psychological impact of the guilty verdicts on the appellant as follows:
[translation] [O]ne hypothesis that I consider highly likely is that, once he learned that the police officers had been convicted following the trial, at that point, especially if there were people who reassured him, who convinced him that there was no danger, at that point he may have been able to control his anxiety sufficiently to be able to take action. [Case on Appeal, at pp. 277-78.]
80 The fact that the appellant retained counsel, who told him about prescription and about the possibility of seeking compensation at the criminal trial, was also relied on. The evidence is ambiguous in this regard. The appellant stated that he had no idea of the applicable time limit for bringing an action until 1988 and had never asked his lawyer about it (Case on Appeal, at pp. 210-13). 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 his assailants for six years. That argument is based more on a lack of diligence, whereas this is a case of impossibility to act.
81 Boily J. added that had the appellant been treated sooner, his period of chronic post-traumatic stress might have been avoided. According to the expert evidence, the chronic phase is the phase of post-traumatic stress that followed the acute and subacute stress phases, and it involves an alleviation of the appellant’s phobias and fears, although there are at the same time permanent psychological after-effects. The acute and subacute phases lasted a total of six years from the night of torture in March 1982, and it was during these six years that it would have been absolutely impossible in fact for the appellant to act against the respondents. The appellant brought his action shortly after the end of the subacute post-traumatic stress phase in March 1988, at the time of the conviction of the respondents Beaumont and Thireault. No one disputes that the appellant was able to take legal action during his chronic post-traumatic stress phase, which would have begun in March 1988. The appellant showed diligence in consulting his lawyers about obtaining compensation for his injuries on March 31, 1988, two days after the respondents were sentenced. With respect, Boily J.’s comments on the possibility of avoiding the chronic phase are accordingly irrelevant.
82 Moreover, to blame the appellant for a lack of diligence in obtaining treatment implies that diligence should be judged based on the reasonable person standard and that the psychological reality of the victim, who suffered severe post-traumatic stress, should be disregarded. As Dr. Vacaflor, the respondent’s expert, stated, the fact that a victim avoids talking about his or her trauma is in fact a consequence of the trauma:
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. [Case on Appeal, at p. 350 (emphasis added).]
83 Nor is it immaterial that after the appellant learned that the respondents Beaumont and Thireault had been released from prison, his fears became more acute and he was again afraid that his assailants would avenge themselves by going after him and his family. According to Dr. Béliveau, [translation] “[h]is hypervigilance and his fears were apparently such that he was in constant fear of being wounded or killed by gunfire while walking or driving down the street.” (Report of Dr. Béliveau, Case on Appeal, at p. 49.)
84 With respect, it seems that the Court of Appeal, like the trial judge, in assessing the absoluteness of the impossibility to act went from a subjective assessment of absolute impossibility in fact to act to an objective assessment. This move to an objective test is contrary to the very principle of the subjective assessment of the victim’s damages. This would ultimately encourage assailants to choose their victims so as to keep them under their thumbs, thereby guaranteeing impunity.
85 While it is true that a court cannot be unduly influenced by sympathy and fairness in stating and applying the law, the seriousness of the ill-treatment suffered by a victim affects the seriousness of the after-effects and the prejudice in terms of both the damage suffered and the impossibility to act. This is noted in the diagnoses of both psychiatric experts.
86 I therefore find that it was absolutely impossible in fact for the appellant to act within the meaning of art. 2232 C.C.L.C. and that the six-month extinctive prescription provided for in s. 586 of the Cities and Towns Act accordingly did not run from March 2, 1982, the date on which the appellant’s right of action arose, to March 1988. Since the court action was brought within six months of the end of the suspension of prescription, the action was not prescribed. I shall now turn to the question of the respondents’ liability.
B. Delictual Liability of the Respondents
1. The Respondents Beaumont and Thireault
87 The civil fault of the respondents Beaumont and Thireault is based on a breach of the general duty of good conduct to which everyone is subject, and a violation of rights protected by the Quebec Charter.
88 The trial judge found that there was no doubt that certain of the appellant’s fundamental rights, namely his right to life, his right to the safeguard of his dignity and his legal rights, had been breached. I will not discuss the breach with the appellant’s legal rights, but will limit my analysis to the following rights protected by the Quebec Charter: the right to personal inviolability (s. 1) and the right to the safeguard of one’s dignity (s. 4).
(a) Personal Inviolability
89 As my colleague L’Heureux-Dubé J. stated in Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211, at para. 97, interference with personal inviolability within the meaning of s. 1 of the Quebec Charter
must affect the victim’s physical, psychological or emotional equilibrium in something more than a fleeting manner. Moreover, the objective of s. 1, as it is worded, makes it much more similar to a guarantee of inviolability of the person and, accordingly, to protection against the certain consequences of the violation.
During the six months following the assault, the appellant was so totally overwhelmed by fear that he could do nothing. For six years after the night of torture, he was in constant fear for his life and for the lives of his family. He suffered major psychological distress that had a tangible and lasting effect on his mental equilibrium and constituted serious interference with his personal inviolability.
(b) Personal Dignity
90 In its safeguard of dignity, s. 4 of the Quebec Charter addresses interferences with the fundamental attributes of a human being that violate the respect to which every person is entitled simply because he or she is a human being, and the respect a person owes to him- or herself (St-Ferdinand, supra, at para. 106). Even temporary interference with a fundamental dimension of a human being violates s. 4 of the Quebec Charter. Here too, the evidence shows that the respondents Beaumont and Thireault had profound contempt for the appellant’s dignity. The enumeration of the acts of torture to which the appellant was subjected makes one wonder what value the respondents Beaumont and Thireault placed on the simple fact that he is a human being. There was clearly a serious unlawful interference with the appellant’s dignity.
2. The Respondent Town of Brome Lake
91 According to para. 7 of art. 1054 C.C.L.C., employers are liable for damage caused by acts of their servants that involve unlawful interference with rights protected by the Quebec Charter, since such interference constitutes a civil fault. In Béliveau St‐Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at paras. 119‐20, I wrote:
In my view, the first paragraph of s. 49 and art. 1053 C.C.L.C. are based on the same legal principle of liability associated with wrongful conduct, which is what I suggested in obiter when examining the concept of cause as regards lis pendens (Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440, at p. 457).
It is thus clear that the violation of a right protected by the Charter is equivalent to a civil fault. The Charter formalizes standards of conduct that apply to all individuals. The legislative recognition of these standards of conduct has to some extent exempted the courts from clarifying their content. This recognition does not, however, make it possible to distinguish in principle the standards of conduct in question from that under art. 1053 C.C.L.C., which the courts apply to the circumstances of each case. The violation of one of the guaranteed rights is therefore wrongful behaviour, which, as the Court of Appeal has recognized, breaches the general duty of good conduct. . . . [Emphasis added.]
92 At the time of the delict, the respondent municipality was the employer of the respondents, officer Beaumont and chief of police Thireault. Section 2.1 of the Police Act, R.S.Q., c. P-13, maintains the employer-employee relationship between the municipality and its police officers, even when, as in the case at bar, they are performing their duties as peace officers.
93 There is no doubt that at the time they brutally beat the appellant, the respondents Beaumont and Thireault were performing the duties for which they were employed: they were on duty and were conducting an interrogation in the course of a criminal investigation into allegations of theft of a safe. If, as the respondent municipality suggests, the employer’s liability was only engaged where it is shown that a delict was committed by its employees in the public interest, in the fight against crime or for the protection of the municipality’s citizens, but was not engaged where the alleged acts are excessive, para. 7 of art. 1054 C.C.L.C. would be totally meaningless. The employer would have no incentive to exercise control over the conduct of its police officer employees. It is very fortunate that the respondent did not knowingly endorse the brutal acts committed by its employees, but this does not relieve it from liability under para. 7 of art. 1054 C.C.L.C.
94 There is no need to determine which faults can be directly attributed to the respondent municipality itself, as it must be held liable for the compensatory damages owed to the appellant as a result of the acts of its employees Beaumont and Thireault.
C. Compensatory Damages
95 The quantum of the damages can be determined on the basis of the evidence in the record, which consists basically of the appellant’s testimony and the opinions of the two psychiatric experts heard at trial.
96 The appellant seeks $300,000 for the damage he suffered, which can be broken down as follows:
(1) Physical suffering, humiliation, loss of liberty and
dignity, mental suffering and psychological terror
sustained on March 1, 1982: $100,000
(2) Physical suffering beginning on March 2, 1982: $ 25,000
(3) Psychological injury beginning on March 2, 1982: $100,000
(4) Temporary total disability for six months: $ 25,000
(5) Permanent partial physical disability: $ 50,000
97 I shall deal first with the pecuniary damages relating to the disabilities and then with the moral damages.
1. Pecuniary Damages Relating to the Disability
98 The uncontradicted evidence shows that the appellant suffered a temporary total disability for six months, which coincided with his acute post-traumatic stress phase. During this phase, the appellant suffered serious symptoms of traumatic anxiety, such as traumatic nightmares, flashbacks of the torture he had undergone, constant irritability and hypervigilance, concentration problems and a phobia about saying or doing things that might incite his assailants to act on their death threats. According to Dr. Béliveau, the appellant’s expert, owing to the intensity of his symptomatology of anxiety and traumatic depression, the appellant would have been unable to work for at least six months. In my view, the sum of $15,000 would constitute reasonable compensation for the loss of earnings resulting from his temporary total disability, in view of its duration.
99 The appellant is also seeking $50,000 for a permanent partial disability established by expert evidence at 5 percent, which is related to his state of chronic post-traumatic stress. His irritability and depressive state will have an impact on his future earning capacity, and I would award $35,000 under this head.
100 I would accordingly award the appellant $50,000 in pecuniary damages.
2. Moral Damages
101 This Court discussed the method for calculating the amount of moral damages in St-Ferdinand, supra. L’Heureux-Dubé J., writing for the Court, noted that there are three different ways in which to address the calculation of compensation for moral damages (at paras. 72-73, 75 and 77):
These are the conceptual, personal and functional approaches, which we shall examine briefly in turn.
The so‐called conceptual approach considers the components of a human being to have purely objective value, which is expressed in a specific monetary amount. The major disadvantage of this extremely simple method is that it fails to take into account the victim’s specific situation.
. . .
Secondly, at the opposite end of the spectrum from the conceptual approach, the personal approach to calculating moral damages makes it possible to determine the compensation that corresponds specifically to the loss suffered by the victim. As Wéry wrote [A. Wéry, “L’évaluation judiciaire des dommages non pécuniaires résultant de blessures corporelles: du pragmatisme de l’arbitraire?”, [1986] R.R.A. 355], at p. 357, this approach [translation] “assigns no objective value to the organs of the human body but rather seeks to evaluate, from a subjective point of view, the pain and inconvenience resulting from the injuries suffered by the victim”.
. . .
Lastly, the third method of calculating moral damages . . . refers to the functional approach. As Dickson J. explained in Andrews, this approach seeks to calculate the “physical arrangements which can make (the injured person’s) life more endurable . . . accepting that what has been lost is incapable of being replaced in any direct way” (p. 262).
As my colleague stated, in para. 79, these three methods “interact, leaving the courts considerable latitude so that they can reach a reasonable and equitable result”. She added the following, in para. 80:
Thus, in Quebec civil law the three approaches to calculating the amount necessary to compensate for moral prejudice . . . apply jointly, and thereby encourage a personalized evaluation of the moral prejudice. In fact, this appears to me to be the best solution in a field in which exact quantification of the prejudice suffered is extremely difficult because of the qualitative nature of that prejudice.
102 The Quebec courts now seem to be leaning toward a consolidated assessment of non-pecuniary losses. This trend has been criticized by Justice Baudouin (J.‐L. Baudouin, La responsabilité civile (4th ed. 1994), at para. 310) but supported by Professor Gardner (D. Gardner, L’évaluation du préjudice corporel (1994), at pp. 156-57; see also M. Tancelin, Des obligations: actes et responsabilités (6th ed. 1997), at p. 553). It is unnecessary in the present appeal to decide this issue, which has not been argued. The principal function of the general scheme of civil liability is full compensation for the loss sustained. Provided that this objective is attained, any of the methods can be applied.
103 The appellant suffered a severe loss of enjoyment and quality of life. During his period of temporary total disability, the evidence shows that he displayed a symptomatology of traumatic depression, which [translation] “manifested itself in a loss of interest in and motivation for any activity whatsoever, irritability, and disorders of the appetite and libido” (report of Dr. Béliveau, Case on Appeal, at p. 48). His 5 percent permanent partial disability related to the chronic state of post-traumatic stress also manifested itself in this way, according to Dr. Béliveau:
[translation] He apparently continued to experience traumatic nightmares about twice a month that caused him to wake up in such a state of anxiety that he had to go check the doors before he could go back to sleep. He apparently continued to have flashbacks of the night of torture of March 1, 1982 about twice a week. He apparently continued to be irritable, to have little interest in most activities, especially social activities, and to feel depressed periodically, and his personality had apparently changed so much that he was no longer the same man. He apparently also continues to tend to get drunk one to three times a week after the events of 1982 through alcohol abuse. [Report of Dr. Béliveau, Case on Appeal, at p. 49.]
Adding to this the humiliation he suffered in the course of the torture, the loss of dignity, the severe violation of his physical and psychological integrity, and his physical and psychological suffering during the night of March 1 to 2, 1982 and afterwards, it is reasonable and fair to award $200,000 in non-pecuniary damages.
D. Exemplary Damages under Paragraph 2 of Section 49 of the Quebec Charter
1. The Right to Exemplary Damages
104 The appellant claims $100,000 in exemplary damages from the respondents under para. 2 of s. 49 of the Quebec Charter.
105 Under para. 2 of s. 49 of the Quebec Charter, exemplary damages can be awarded only in a case of unlawful and intentional interference. L’Heureux-Dubé J. defined the intentional nature of unlawful and intentional interference within the meaning of para. 2 of s. 49 of the Quebec Charter in St-Ferdinand, supra, at para. 121:
. . . there will be unlawful and intentional interference within the meaning of the second paragraph of s. 49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test. [Emphasis added.]
Applying this test, was the unlawful interference by the respondents intentional within the meaning of para. 2 of s. 49 of the Quebec Charter?
(a) The Respondents Beaumont and Thireault
106 It is clear from the evidence in this case that the respondents Beaumont and Thireault wished to cause the consequences of their unlawful interference with the appellant’s personal inviolability and dignity. The appellant’s profound fear and physical and mental imbalance were merely the immediate and natural consequences of the mistreatment by the respondents. The number and cruelty of the violent acts they committed show that they intended to interfere with the plaintiff’s inviolability and dignity. The breaches were intentional.
107 Since the respondents Beaumont and Thireault were the authors of unlawful and intentional breaches of the rights to personal inviolability and dignity protected by the Quebec Charter, this Court may order them to pay exemplary damages under para. 2 of s. 49 of the Quebec Charter. What about their employer, the respondent Town of Brome Lake?
(b) The Respondent Town of Brome Lake
108 Paragraph 2 of s. 49 of the Quebec Charter confers on a court the power to order the person guilty of the unlawful and intentional breach to pay exemplary damages. Thus, to order the respondent employer of the respondents Beaumont and Thireault to pay exemplary damages, it must be proven that it intended to cause the consequences of the unlawful breach or that this intention could be attributed to it.
109 In Béliveau St-Jacques, supra, at para. 65, L’Heureux-Dubé J., dissenting on another issue, discussed the employer’s liability for unlawful and intentional interference by its employees under para. 2 of s. 49 of the Quebec Charter, quoting with approval the following passage by Professor Perret on the subject:
[translation] Punitive damages are payable by the person who committed the intentional fault. However, what happens where another person, who has the person who committed the fault under his or her care, control or supervision, is normally liable for the latter under art. 1054 of the Civil Code? For example, are employers, who are normally liable for the compensatory damages payable as a result of the fault of their employees in the performance of their duties, also liable for the exemplary damages their employees are ordered to pay for having, in the course of their work, intentionally caused the damage complained of by the victim? . . . It seems highly doubtful that a person may be punished for the intentional fault of another under any circumstances. Does not punishment presuppose that the person being punished had wrongful intent? That is why I feel that employers cannot be held jointly and severally liable for the exemplary damages payable as a result of the intentional fault of their employees, except where there was some complicity between them (e.g. orders given, knowledge and failure to order the wrongdoing stopped) or where the employee in question is in fact one4 of the directing minds of the company. [Italics in original; underlining added.]
(L. Perret, “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, at p. 140, note 48.)
110 In Augustus v. Gosset, [1990] R.J.Q. 2641, at pp. 2655-56, the Superior Court stated that a victim who claims exemplary damages under the Quebec Charter must prove that the offender’s employer participated in or approved the act in question. The Quebec Court of Appeal (per Deschamps J.A., Vallerand J.A. concurring) affirmed this decision in Augustus v. Gosset, [1995] R.J.Q. 335, at p. 359, stating that proof of an employer-employee relationship under para. 7 of art. 1054 C.C.L.C. is not sufficient to establish unlawful and intentional interference by the employer giving rise to exemplary damages under para. 2 of s. 49 of the Quebec Charter (see also Lacroutz v. Couture, [1991] R.R.A. 493 (C.A.), at p. 495; C. Dallaire, Les dommages exemplaires sous le régime des Chartes (1995), at pp. 59-60; K. Delwaide, “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”, in Application des Chartes des droits et libertés en matière civile (1988), 95, at pp. 104-5).
111 Orders given by the employer, knowledge of or failure to prohibit the unlawful acts, failure to order that the acts cease, and the level in the employer’s organizational hierarchy of the position of the employee who committed the wrongful acts are factors giving rise to a presumption of fact establishing on a preponderance of evidence that the employer had this intent with respect to the consequences of the unlawful breach of rights under the Quebec Charter.
112 In my view, there is sufficient evidence in this case to conclude that the respondent municipality can be presumed to have intended to interfere with the appellant’s inviolability and dignity, or that this intention can be attributed to it. Let us consider the context. Even before 1982, there had been several cases of unreasonable use of force in the respondent municipality’s police force involving the respondents Beaumont and Thireault among others. The fact that these criminal acts were not punished by the justice system until a few years after the night of torture in 1982 is immaterial. This is a small municipality. It would be strange if the respondent had never got wind of the conduct of its police officers and police chief before March 1, 1982. It took a Police Commission inquiry to put an end to the silence that reigned with respect to the violence in the respondent’s police force.
113 That having been said, ss. 64 and 67 of the Police Act place municipalities and their police forces under certain obligations. Section 64 of the Police Act requires every local municipality to ensure that its territory is under the jurisdiction of a police force. Section 67 of the same Act reads as follows:
67. It shall be the duty of every municipal police force and each member thereof to maintain peace, order and public safety in the territory of the municipality for which it is established and in any other territory in which such municipality has jurisdiction, to prevent crime and infringements of its by‐laws and to seek out the offenders.
114 In light of the municipality’s obligation to ensure that its territory has a police force responsible for maintaining peace, order and public safety in its territory and for preventing crime and seeking out offenders, it follows, at the very least, that this police force may not use violence and torture in performing its duties.
115 The evidence established that the police force itself played an active role in the violence against the appellant. Three of the force’s seven members, including police chief Thireault, actively took part in the acts of torture. Furthermore, the criminal participation of the chief of police, the respondent Thireault, in the mistreatment of the appellant was greater than that of the respondent Beaumont.
116 Section 68 of the Police Act reads as follows:
68. Every municipal police force shall be under the control of a chief who shall command it.
The director general of a municipality has no authority in any matter concerning a police inquiry.
The chief of police is responsible for performance of the duty to maintain peace, order and public safety in the territory and to prevent crime. Because of the chief’s essential role in the municipality, he receives a protection greater even than that conferred by the Cities and Towns Act, which governs the respondent municipality pursuant to its constituting letters patent ((1971) 103 G.O. 106, January 2, 1971), on the municipality’s officers and employees who are not “employees” within the meaning of the Labour Code, R.S.Q., c. C-27 (s. 1(l) “employee”), and who have been in the employ of the municipality for at least six months, including its director general. The municipal council may not dismiss or reduce the salary of its chief of police except by a resolution supported by an absolute majority of its members (Police Act, s. 79; for the municipality’s officers and employees who are not “employees” within the meaning of the Labour Code, see Cities and Towns Act, s. 71). The municipal council’s decision may then be appealed to a three-judge panel of the Court of Québec (Police Act, s. 98.1), while officers or employees who are not “employees” within the meaning of the Labour Code must appeal to the Commission municipale rather than to the Court of Québec (Cities and Towns Act, ss. 71 and 72).
117 I conclude that the respondent Thireault is one of the municipality’s directing minds. His intent to cause the consequences of the unlawful breach is to be attributed to the respondent municipality. The respondent municipality is therefore one of the persons guilty, within the meaning of para. 2 of s. 49 of the Quebec Charter, of the unlawful and intentional breach of the appellant’s rights to personal inviolability and dignity and may be ordered to pay exemplary damages, together with the respondents Beaumont and Thireault.
2. Quantum of the Exemplary Damages
118 In light of the seriousness of the unlawful and intentional interference, I set the exemplary damages at $50,000.
E. Interest and Additional Indemnity
119 The appellant asks that interest and the additional indemnity run from the date of the cause of action rather than from the date when the action was instituted.
120 Article 1056c C.C.L.C. reads as follows:
The amount awarded by judgment for damages resulting from an offence or a quasi-offence shall bear interest at the legal rate as from the date when the action at law was instituted.
There may be added to the amount so awarded an indemnity computed by applying to the amount, from such date, a percentage equal to the excess of the interest rate fixed according to section 28 of the Act respecting the Ministère du Revenu (R.S.Q., chapter M-31) over the legal interest rate. [Emphasis added.]
121 Interest is a form of moratory damages related to a debtor’s delay in performing an obligation to pay a sum of money. In this case, performance of the obligation to pay the sum of money is subject to its being liquidated by judgment. Article 1056c C.C.L.C. provides that it is the amount awarded by judgment that bears interest retroactively as of the date when the action was instituted. The appellant put the respondents in default to perform their obligation to compensate him for his injury the day he instituted his action, that is, on May 3, 1988. Although it is true that it was absolutely impossible in fact for the appellant to act until March 1988 and that he could not therefore require that the obligation be performed before then, there is no rule under the Civil Code of Lower Canada permitting interest to be imposed as of March 2, 1982, the date of the cause of action.
122 The appellant referred to s. 50 of the Supreme Court Act, R.S.C., 1985, c. S‐26, which reads as follows:
50. Unless otherwise ordered by the Court, a judgment of the Court bears interest at the rate and from the date applicable to the judgment in the same matter of the court of original jurisdiction or at the rate and from the date that would have been applicable to that judgment if it had included a monetary award. [Emphasis added.]
This provision cannot be applied against a clear rule of the Civil Code of Lower Canada that provides for moratory damages related to the debt itself. Interest and the additional indemnity must therefore run as of May 3, 1988, the date of service of the action, in accordance with art. 1056c C.C.L.C.
F. Extrajudicial Costs
123 I would not grant the appellant’s request that the respondents be ordered to pay his extrajudicial costs. Aside from the affidavit on the appellant’s financial situation that was filed with the application for leave to appeal, there is no evidence in the record in support of such a request. The appellant’s financial situation cannot alone be taken into account in order to exercise the discretion under s. 47 of the Supreme Court Act. Furthermore, the trial court and the Court of Appeal, in a unanimous judgment, ruled in the respondents’ favour. This Court made no special order regarding costs in its decision on the application for leave.
VI. Conclusion
124 For all these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal and order the respondents Mario Beaumont, Alyre Thireault and the Municipal Corporation of the Town of Brome Lake to pay the appellant, David Allen Gauthier, jointly and severally, the sum of $300,000, with interest at the legal rate and the additional indemnity provided for in art. 1056c C.C.L.C. as of May 3, 1988, the whole with costs throughout.
Appeal allowed with costs, Lamer C.J. and McLachlin J. dissenting.
Solicitors for the appellant: Bessette, Gauthier, Bellehumeur, Sherbrooke.
Solicitors for the respondent the Town of Brome Lake: Lavin & Associates, Cowansville.
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