2014 QCCA 2093, 2014 QCCA 2093

Bamboukian c. Karamanoukian 2014 QCCA 2093 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-023868-136 ( 500-05-066475-011 ) MINUTES OF THE HEARING DATE: NOVEMBER 13, 2014 CORAM: THE HONOURABLE marie-france bich , J.A. paul vézina , J.A. geneviève marcotte , J.A. APPELLANTS COUNSEL AGOP BAMBOUKIAN MOUCHEGH BAMBOUKIAN VIKEN BAMBOUKIAN Mtre GIULIO B. VANI ( Peizler & Vani avocats sa ) RESPONDENT COUNSEL WAZKEN KARAMANOUKIAN Mtre MARK SUMBULIAN In appeal from a judgment rendered on August 6, 2013, by the Honourable Madam Justice Sylviane Borenstein, of the Superior Court, District of Montreal.

NATURE OF THE APPEAL : Civil liability – assault – fault – compensatory and punitive damages – solidarity Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9:30 Continuation of the hearing of November 12, 2014. Judgment rendered this day – see page 3.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] On August 22, 2014, [1] judgment was rendered by the Superior Court, District of Montreal (the honourable Madam Justice Sylviane Borenstein), maintaining the respondent's action and condemning the appellants, solidarily, to pay $88,780.75 in compensatory damages (including moral damages) and $50,000 in punitive damages, the whole with interest and the additional indemnity (art. 1619 C.C.Q. ) calculated as of November 22, 2010. [ 2 ] The trial judge concluded that, on July 1998, the appellants, in order to settle a private dispute, brutally assaulted the respondent.

There were actually two assaults, the first by appellants Agop and Mouchegh Bamboukian, and the second, a few hours later, by Mouchegh and Viken Bamboukian. [ 3 ] Although appellants Agop and Mouchegh Bamboukian recognize that they assaulted the respondent (an offense for which they were criminally convicted in 2000), appellant Viken Bamboukian (who was, for his part, acquitted) denies it, arguing that he acted in self-defense. The trial judge concluded otherwise and an examination of the evidence shows no reviewable error in her assessment thereof.

She preferred the testimony of the respondent's ex-wife, an independent and credible witness, to that of the appellants Viken and Mouchegh Bamboukian. The trial judge’s credibility assessment and her evaluation of the evidence attract a high degree of deference and are not easily overturned by a court of appeal. There is no reason to do so in the present case.

[ 4 ] Because of the beatings suffered at the hands of the appellants, the respondent was unable to work for three years, his injuries resulted in a partial permanent incapacity established by the judge at 15%, and he was durably and significantly traumatized by the event. Considering that this prejudice was linked directly to both assaults and because it was impossible to determine which of them caused the various injuries, the judge decided that the appellants were to be held solidarily liable. [ 5 ] The appellants have failed to establish that these conclusions are tainted by any error of law or any palpable and overriding error of fact. In particular, solidarity was warranted by

article 1480 C.C.Q. , considering that the two assaults conducted by the appellants, although separated by a few hours, were in fact twin events, closely related, and that they constituted a collective wrongful act causing an indivisible prejudice. [ 6 ] As far as the quantum of the compensatory damages is concerned, the highest degree of deference is also owed on appeal [2] and no reviewable error has been shown in the judge's appreciation of these damages, except on one point.

The judge correctly deducted from the damages awarded to the respondent the amount of $33,658 received from IVAC as an income replacement indemnity. She inadvertently omitted, however, to deduct the amount of $12,940 received by the respondent from IVAC in addition to this indemnity.

The Court will intervene accordingly. [ 7 ] Were punitive damages justified in the present case pursuant to sections 1 and 49 of the Charter of human rights and freedoms ? [3] They were, for the reasons set out in paragraphs 44 to 47 of the judgment and considering the viciousness of the attacks, the fact that they were both planned and deliberate, and the obvious intent to inflict serious injury. Personal vendetta must indeed be discouraged. [ 8 ] Yet the appellants argue that the $50,000 award to which they were held solidarily liable is excessive in the circumstances. The Court agrees.

Considering the criteria set out in

article 1621 C.C.Q. and considering the case-law in such matter, the following awards are appropriate: For appellant Agop Bamboukian (who is the father of the other appellants and who planned and launched the vendetta): $10,000; For appellant Mouchegh Bamboukian (who participated in both assaults): $10,000; For Appellant Viken Bamboukian (who participated in one of the assault): $7,000. [4] [ 9 ] According to the Supreme Court of Canada in Cinar Corporation v.

Robinson , [5] punitive damages under the Charter do not lend themselves to solidarity. [ 10 ] Finally, interest and the additional indemnity are due on such damages as of the date of the judgment, [6] i.e. as of August 22, 2013, pursuant to

article 472, first para., and 473 C.C.P . FOR THESE REASONS, THE COURT: [ 11 ] ALLOWS the appeal in part; [ 12 ] REPLACES paragraph [53] of the judgment with the following: [53] CONDEMNS Defendants, solidarily, to pay Plaintiff damages of $75,840.75$, with interest and the additional indemnity provided for under

article 1619 C.C.Q. as of November 22, 2010; [ 13 ] REPLACES paragraph [54] of the judgment with the following: [54] CONDEMNS Defendant Agop Bamboukian to pay Plaintiff punitive damages of $10,000, with interest and the additional indemnity as of August 22, 2013; [54.1] CONDEMNS Defendant Mouchegh Bamboukian to pay Plaintiff punitive damages of $10,000, with interest and the additional indemnity as of August 22, 2013; [54.2] CONDEMNS Defendant Viken Bamboukian to pay Plaintiff punitive damages of $7,000, with interest and the additional indemnity as of August 22, 2013; [ 14 ] STRIKES paragraph [55] of the judgment; [ 15 ] THE WHOLE , with costs. marie-france bich, J.A.

paul vézina, J.A. geneviève marcotte, J.A.