2019 QCCA 377, 2019 QCCA 377

J.S. c. Lamontagne 2019 QCCA 377 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026233-163 (500-17-057134-101) DATE: MARCH 1, 2019 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. J. S. APPELLANT - Plaintiff v. PAULE LAMONTAGNE RESPONDENT - Defendant JUDGMENT [ 1 ] J.

S. has appealed a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Marie-Anne Paquette), rendered on June 21, 2016, which dismissed her action in professional liability brought against psychologist Paule Lamontagne. [ 2 ] The respondent prepared a psychosocial expert’s report in connection with a dispute between the appellant and her former spouse over what custody and access arrangements would be in the best interest of their two children.

The appellant claimed that the respondent made errors in the report that amounted to one or more civil wrongs that engaged her professional liability. She alleged that the report harmed her reputation and caused her other damage.

She also asked the Superior Court to award her punitive damages in light of what she characterized as the respondent’s intentionally wrongful conduct. [ 3 ] Following an eight-day trial at which four witnesses were heard and approximately 140 exhibits were filed, the trial judge held that the respondent did not commit a professional fault and that the appellant had failed to establish, on the balance of probabilities, that she had suffered harm as a result of the respondent’s conduct. The judge also held that the expert’s report was not defamatory.

The appellant’s claim for compensatory and punitive damages was dismissed with legal costs. *** [ 4 ] The appellant raises five grounds of appeal that overlap to some degree. I Did the trial judge err at law by stating the mandate of the respondent was simply to analyze the access rights and parental rights of the father? [ 5 ] The appellant submits that the trial judge erred, in particular in paragraph [40] of her reasons, when she found that the respondent’s professional mandate was limited to evaluating the father’s parental capacities and that her own suitability as a parent was not in question.

Contrary to what the trial judge decided, she submits, the initial order for the preparation of the expert’s report was, in the appellant’s words, “the standard mandate given to all experts within the context of a custody battle, which is to analyze the parental capacities of both parents.” The appellant says this misreading of the mandate meant the trial judge failed to grasp the full extent of the respondent’s errors in preparing the report, including those that affected her personally. [ 6 ] This ground of appeal is rejected. [ 7 ] The judge wrote the following in respect of her

interpretation of the respondent’s mandate: 4.1.3.1 Le mandat de Mme Lamontagne [39] Afin de bien évaluer la conduite professionnelle de Mme Lamontagne, il est primordial, dans un premier temps, de rappeler l’objet du mandat qui lui était confié. [40] Plus précisément, Mme S... avait la garde exclusive des enfants. Sa capacité à assumer cette charge n’était pas remise en question. En revanche, les capacités parentales du père étaient vigoureusement contestées. Mme S... alléguait qu’il était dangereux et nocif pour les filles de se trouver en présence de leur père et que tout contact père-filles, le cas échéant, devrait être supervisé.

[41] Rappelons, comme Mmes Lamontagne et Pérusse le précisent, que dans le contexte d’une expertise psycho légale, l’expert a le devoir d’éclairer le Tribunal, de façon neutre, objective et professionnelle, sur le meilleur intérêt de l’enfant.

Cette préoccupation doit guider tous ses gestes et décisions comme professionnel. [42] Le professionnel qui prépare une expertise psychosociale n’a donc pas pour mandat de plaire à qui que ce soit, et surtout pas d’accéder à toutes les demandes d’une partie, parent ou enfant. [Reference omitted.] [ 8 ] The appellant is wrong to say that the trial judge limited her reading of the mandate to an evaluation of the father’s parental capacity alone.

Quite correctly, the judge observed in paragraph [41] that the overarching purpose of the expert’s report was to assist the court in understanding the best interest of the children. Naturally, this required the expert to consider the conduct of both parents, as she did in her report.

The judge’s reasons, read as a whole, make plain that she understood this. [ 9 ] The stated focus on the father’s access rights in paragraph [40] reflected the fact that this was the principal object of the dispute – the appellant herself had asked that the father be denied such rights in the divorce proceedings, which prompted the order to prepare the report in the first place.

The trial judge did not say that the expert was to ignore the appellant’s conduct as a parent, but she did observe – and this was manifestly a positive comment in the appellant’s favour – that the appellant’s suitability to exercise custody was not in dispute. No reviewable error was made. II Did the judge err at law by not analyzing separately each of the three conditions for liability under

article 1457 C.C.Q . (fault, damage and causation), especially in respect of fault? [ 10 ] The appellant criticizes the judge’s method in deciding whether the elements of the respondent’s civil liability had been made out, in particular that she did not correctly isolate aspects of fault, damage and causation relevant to a claim under

article 1457 C.C.Q . She adds that, once the respondent’s errors had been identified for the purposes of determining fault, “it becomes a question of law whether or not a reasonable person acting as a psychologist within a similar mandate would have made the same errors if he or she was acting prudently and diligently.” [ 11 ] This ground of appeal is without merit. [ 12 ] First, the appellant has stated the test for fault for the purpose of determining professional liability unhelpfully.

For a professional, the standard is that of the reasonable professional in the defendant’s circumstances. [1] In this case, this required the court to compare the respondent’s conduct with that expected of the reasonable psychologist in the respondent’s circumstances, not that of a “reasonable person acting as a psychologist.” [ 13 ] Second, the issue as to whether the respondent met that standard in the circumstances raises a question of fact and not, as the appellant suggests, a question of law. [2] [ 14 ] There was plainly nothing wrong with the method of analysis adopted by the trial judge.

The judge correctly stated the guiding principles for determining the professional liability of a psychologist (paras. [31] and [32]). She then addressed the issue of fault, concluding that the respondent has made mistakes but that they did not constitute, considered separately or together, a civil wrong under

article 1457 C.C.Q . That might have ended the matter, but the judge went on to consider the appellant’s arguments in respect of damage and causation, holding that damage has not been proven by the appellant on the balance of probabilities and that, in any event, the respondent had not been shown to have caused the harm alleged by the appellant. No error in method has been shown, quite the contrary.

III Did the respondent commit a fault within her mandate based on all the errors both admitted by her and as alleged by the appellant? [ 15 ] The appellant submits that the judge erred in characterizing the errors committed by the respondent – many of which had been acknowledged by the respondent as mistakes – as “erreurs non fautives” that could not engage civil liability. [ 16 ] Has the appellant shown a basis upon which the Court can disturb the trial judge’s finding that the respondent’s errors, considered separately or together, did not constitute a civil fault? [ 17 ] It is well-settled law that a defendant – even a professional – can make a mistake without that mistake necessarily constituting a fault that engages his or her civil liability. [3] The law understands that, in respect of an obligation of means such as the one imposed on the respondent in the present case, not all errors represent departures from the standard of reasonable conduct. [4] The test is whether the reasonable person in the circumstances would have avoided making the mistake in question. [5] The judge stated this aspect of the law plainly and correctly in paragraph [32] of her reasons and found that the various mistakes committed by the respondent, considered globally, did not amount to a professional fault on the standard of the reasonable psychologist in the respondent’s circumstances (para. [38]). [ 18 ] As noted, the adequacy of the judge’s evaluation of the evidence in respect of fault raises a question of fact.

The appellant thus had the burden on appeal of showing a palpable and overriding error committed by the judge in her measure of the respondent’s conduct. [6] [ 19 ] The appellant cites five principal areas in which she feels the trial judge failed to record the commission of a fault or failed to note that the respondent had defamed her in the report. These are: (

i) failure to consult properly with a therapist in Toronto and other third parties; (ii) the judge’s alleged error in concluding that a risk of parental alienation based on her reading of the Lamontagne report; (iii) the failure to find that the respondent’s recommendation that the appellant undergo therapy was a fault; (iv) the failure to find that the respondent showed a lack of independence in the execution of her mandate; and (

v) the failure to conclude that the respondent committed faults in the psychological testing, and the reporting of those test results in her report, both in respect of the appellant and of her ex-husband.

[ 20 ] Several preliminary points should be made. [ 21 ] Firstly, the appellant relied at trial, and again on appeal, on the opinion of her own expert Greenberg who was highly critical of the Lamontagne report. The judge rejected the report of Ms. Greenberg, doing so in strong terms. She wrote that the Greenberg opinion was completely lacking in nuance, that it was not objective, ignored points that were favourable to the respondent Lamontagne, and insisted in a ‘sometimes laughable’ (“parfois risible”) manner on problems that were either unfounded or inconsequential (para. [116]).

On this point, the judge concluded: [117] Mme Greenberg semble s’être abaissée à mettre sa voix et son statut au service des désirs de sa cliente, Mme S… Cela est inacceptable et contraire aux devoirs des experts qui témoignent devant la cour, et qui sont maintenant codifiés au Code de procédure civile . [Reference omitted] [ 22 ] While the appellant’s expert was found to be lacking in credibility, the respondent’s expert at trial, Diane Pérusse, who reviewed the Greenberg report, was deemed to be a competent, reliable and neutral witness who was not shy to point out matters less favourable to the respondent (para. [37]).

The respondent herself was characterized by the judge as measured and professional in her written report and in her testimony (paras. [121] to [123]). [ 23 ] It is well known that the Court owes deference to this kind of finding in first instance. The measure of a witness’s credibility, including that of expert witnesses, is a highly subjective matter: deference is owed to the views of trial judges because they have the distinct advantage of considering the relevant evidence first-hand. [7] No reviewable error has been shown in her evaluation of the credibility of Ms. Greenberg, Ms.

Pérusse or of the respondent. [ 24 ] Secondly, it bears noting that the appellant failed to produce the applicable guidelines of the professional Order of Psychologists relating to custody and access matters and made no sustained reference to those norms in criticizing the judge’s evaluation of the respondent’s work. The guidelines were referred to in the experts’ reports and by the judge.

The appellant also neglected to produce the decisions of the relevant authorities of the Order of Psychologists that concluded that the respondent did not breach her professional obligations, even if it was complaints from the appellant herself that prompted these inquiries. These materials, produced by the respondent, help put the relevant allegations of fault in their proper context. The appellant has failed to respond adequately to the judge’s choice to rely on them in arriving at her decision.

These were among the considerations that, from the point of view of the rules of art in the profession, allowed the judge to conclude that the respondent committed some mistakes but no actionable wrong. [ 25 ] In respect of the first four arguments raised, the appellant has failed to identify any reviewable error in the judge’s finding that the respondent’s conduct did not amount to a fault.

Suffice to say that the judge correctly recognized that as a professional charged with preparing a report relating to the best interest of the children, it was not a mistake to signal a “risk” of parental alienation or to suggest that the mother undergo therapy in order to understand better the children’s interests as opposed to her own.

The judge’s evaluation of the respondent’s independence or of her choice of who to interview is equally free of reviewable errors. [ 26 ] In respect of her last argument on this point, the appellant characterizes the mistakes in the Lamontagne report relating to conclusions drawn about the father and herself as “the most serious errors”. Was the judge mistaken in concluding that whatever mistakes were made did not amount to civil wrongs? [ 27 ] It is true that the Lamontagne report contains errors in its description of the appellant’s ex-husband, including his age and years of education.

But the judge viewed these and other supposed errors as falling short of negligent or wrongful conduct because they had no appreciable impact on the psychometric tests administered by the respondent. Other criticisms – including the fact that the respondent failed to point out that the appellant’s ex-husband had a criminal record – were rejected because the appellant failed to establish them as mistakes on the balance of probabilities. None of these matters have been shown to be reviewable on appeal. [ 28 ] The appellant seeks to overturn the judge’s evaluation of the respondent’s

interpretation of the ex-husband test results, suggesting on the basis of her own analysis and that in the Greenberg opinion that he was in fact bipolar, that he has substance abuse problems and anger-management issues that the Lamontagne report failed to record. The judge was harsh in her treatment of these criticisms, noting that they were based on the appellant’s subjective

interpretation that reflected an “amateur” approach to the matter at hand (para. [100] to [108]). Here again, no palpable or overriding error has been shown, and it is not unfair to say, as counsel for the respondent suggests, that the appellant now seeks to retry this question of fact rather than identifying where, in rejecting the appellant’s position at trial and the Greenberg expert opinion, the judge committed a palpable and overriding error.

This, of course, is not the proper function of a court of appeal. [8] [ 29 ] The allegations of defamation were similarly held to be unfounded; while the respondent did criticize the appellant in some respects, the judge was of the view that this was done with moderation, and in keeping with her duty as an expert charged with the determination of the children’s best interest. Here again, no reviewable error has been shown. [ 30 ] One final aspect of the criticism levied against the respondent’s report merits closer examination: the mistaken diagnosis of the appellant based on the psychometric tests administered.

As the judge noted, the Lamontagne report recorded, in one instance, that the appellant suffered from “maniaco-dépression, type 2.” This was a mistake that the respondent acknowledged at trial. [ 31 ] The trial judge recognized that there was no proper basis for this finding by the respondent.

She characterized it as an unfortunate error but one that did not constitute a fault and one that, in addition, was without consequence. [ 32 ] The trial judge wrote the following on this point: [74] Tous reconnaissent que cette mention n’aurait pas dû se retrouver dans le rapport, que les tests psychométriques et l’évaluation clinique de Mme S... ne supportent pas un tel diagnostic. Il s’agit également ici d’une erreur qui, quoique malheureuse, est non fautive et, par surcroît, sans conséquence.

[75] En effet, cette mention a échappé à tous jusqu’au moment où Mme Greenberg a préparé son rapport, le 5 mai 2012. Plus précisément, la mention de ce diagnostic n’a jamais été relevée ni discutée à quelque moment que ce soit dans le cours du litige matrimonial. Le Syndic de l’Ordre des psychologues ( Ordre ) et son Comité de révision, qui ont évalué la conduite de Mme Lamontagne à la demande de Mme S..., n’ont, eux non plus, jamais relevé cette erreur. [76] Par surcroît, cette mention est isolée et diluée.

En effet, elle se retrouve à la fin d’un long paragraphe qui illustre et détaille les traits d’hystérie et de paranoïa que Mme Lamontagne a pu objectiver sur le plan clinique chez Mme S... et que les tests psychométriques de Mme S... ont corroborés. Il s’agit donc d’une mention isolée, qui n’a manifestement attiré l’attention de personne, dont personne n’a tenu compte et qui résulte d’une distraction malheureuse, mais excusable. [77] Mme S... reproche à Mme Lamontagne de ne pas avoir retiré cette mention de son rapport lorsqu’elle a été informée de cette erreur.

Or, dans les circonstances, le fait de retirer cette mention, isolée et non appuyée dans le rapport, aurait certainement été de peu de réconfort pour Mme S.... De plus, aucune demande n’a été faite en ce sens à Mme Lamontagne.

Notons également que le rapport de Mme Lamontagne est tombé en désuétude après le jugement du 29 octobre 2009, qui entérinait l’entente des parties sur la garde et les accès. [78] Mmes Lamontagne et Pérusse ajoutent que l’ensemble des données disponibles ne justifiait pas non plus un diagnostic de «Maniaco-dépression Type 2» et que cette mention n’aurait pas dû se retrouver dans le rapport pour qui que ce soit. [References omitted] [ 33 ] Was the judge wrong to say that this mistake was not a fault? [ 34 ] Viewed in the abstract, the error was not insignificant even if, as the judge stated, it was an isolated one.

The appellant is right to say that the respondent, in her testimony, offered no compelling explanation for this mistake, except to say that it was not intentionally done, and perhaps explained by a cut-and-paste mistake when she was editing the report. The respondent did not describe it as a misdiagnosis but as her own mistake in drafting the report. She is correct as well that the matter is not properly addressed in Ms.

Pérusse's report. [ 35 ] Even if it is best characterized as a clerical error, it is a particularly striking one in that, as a psychologist, the respondent should have taken care not to make a mistake concerning a matter that a reader would take seriously as closely related to the expert’s field of specialty. It is true, as the judge remarked in para. [77] of her reasons, that the appellant never called upon the respondent to correct the error, as contemplated by s. 21 of the Code of Ethics of Psychologists , CQLR, c. C-26, r. 212 . But this fact, in itself, does not absolve the error.

Even if the judge was quite right that the error was unintentional and isolated, that does not mean that the mistake was not a negligent one against the standard of the reasonable psychologist in the circumstances. [ 36 ] But even assuming, for the purposes of discussion, that the mistake was a fault, the judge decided it could not be the basis of the respondent’s liability for a second reason, i.e. because the mistake was “sans conséquence”.

In other words, even if it were characterized as a fault, the mistake did not cause the appellant any harm susceptible of compensation in law. [ 37 ] By reason of its isolated and “diluted” character, and in particular of the timing of the mistake, the judge found it did not cause the damage to reputation alleged and was not connected to the appellant’s dismissals from her various positions as a tax lawyer. Given the dates of the relevant events, the appellant has not been able to show a mistake in this regard.

Importantly, the report was prepared for litigation on custody and access before Bourque J. that was settled by agreement, confirmed by judgment in 2009. The Bourque J. judgment grants the appellant exclusive custody of the two children and certainly makes no mention of the Lamontagne report, much less the error. In fact, the appellant has failed to point to any judgment relating to the divorce that makes mention of the misuse of this diagnostic term by the respondent.

Moreover, the report itself was signed after she lost her jobs at an accounting firm in 2008 and a law firm in early 2009, as the judge points out in para. [135]. In addition, as her Amended Declaration in Appeal makes plain, the appellant herself said she was unaware of the mistake until she engaged her expert.

Finally, the mistake was not, as the appellant suggests, a diagnosis that the respondent properly intended to attribute to the appellant’s ex-husband: the respondent did acknowledge that the ex- husband had certain test results that were more suggestive of such a diagnosis than the appellant, but she declined to say that it was the ex-husband who should have been so diagnosed. [ 38 ] On the foregoing basis, the judge found the error caused no damage in law.

The appellant made a thorough and sincere argument that the mistake was a serious one, but she did not convince us that the judge erred in finding that the mistake caused no damage, including in respect of her subsequent experiences before the courts, either as a litigant or as counsel. The finding that the mistake, whatever its proper characterization, did not cause a loss to the appellant has not been shown to be wrong.

IV Did the judge err in concluding that the appellant did not suffer harm as a result of the respondent’s conduct? [ 39 ] In addition to the harm allegedly caused by the mistaken reference to “maniaco-dépression type-2” spoken to in the preceding paragraphs of this judgment, the appellant submits that the judge erred in holding that the stress she suffered as a result of her dispute relating to custody and access was not caused in part by the respondent’s conduct.

She says the judge wrongly set aside her arguments that the respondent’s mistaken report prejudiced her case before the courts, resulted in damage to her reputation as a professional and explains why judges made negative comments about her in various judgments relating to her divorce. The judge was wrong not to award her amounts of approximately $400,000 as moral damages and $900,000 for lost income. [ 40 ] In support of her position, the appellant points to a judgment of the Superior Court in Audet v.

Landry , [9] – judgment she says is the only precedent on point – and notes that the judge failed to cite it. [ 41 ] This ground of appeal is rejected. [ 42 ] The judge concluded that the damage complained of by the appellant was caused by factors having nothing to do with the respondent. Her measure of the causal connection between the damage and the allegedly wrongly conduct is a question of fact; only a

palpable and overriding error by the judge would entitle an appeal court to intervene. [10] [ 43 ] The judge made no such error. As noted, the appellant’s employment difficulties, which began well before the signature of the Lamontagne report, have no apparent connection to the respondent; a careful reading of the various judgments in the appellant’s divorce file suggest strongly that the negative comments directed at her, rightly or wrongly, reflected a perceived abuse of proceedings on her

part in a bitter dispute with her ex-husband. The fact that the Lamontagne report was itself no longer relevant to her on-going litigation after the settlement of the custody and access dispute in 2009 also suggests strongly that the judge made no reviewable error in deciding that causation was not made out on the balance of probabilities.

Moreover, in these circumstances, the Landry case, where the findings of facts differed, in particular in respect of the losses, has not been shown to be of assistance. [11] V Did the judge err in refusing to award punitive damages? [ 44 ] The appellant submits that the respondent’s mistakes in the report in minimizing her ex-husband’s problems and in mischaracterizing her own circumstances amounted to an intentional wrong designed to damage her reputation.

As such, it justified an award of punitive damages in the amount of $100,000. [ 45 ] This argument is without merit. [ 46 ] The judge decided that the mistakes made in the report, insofar as they were mistakes, were done unintentionally. The appellant’s basis for challenging this is speculative in the extreme, to which it may be added that nothing pointed to in the evidence suggests that the mistakes, where they were mistakes, were reckless in any way. [ 47 ] In the exercise of her discretion, the judge felt this was not an instance in which punitive damages should be ordered.

That discretion is hers in law; [12] nothing suggests she erred, in principle or in fact, in so deciding. [13] [ 48 ] All the appellant’s arguments on appeal are without foundation. FOR THE AFOREMENTIONED REASONS , the Court: [ 49 ] DISMISSES the appeal; [ 50 ] WITH LEGAL COSTS against the appellant. NICHOLAS KASIRER, J.A. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. J. S. Personnally Mtre Myriam Brixi LAVERY, DE BILLY For respondent Date of hearing: February 27, 2019