2015 QCCQ 2869, 2015 QCCQ 2869

JB4545 Karman c. McFarland 2015 QCCQ 2869 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Civil Division No. 550-32-021975-146 DATE: February 6 th , 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE PATSY BOUTHILLETTE J.C.Q. ______________________________________________________________________ GABOR KARMAN , […], Ottawa, Ontario […] Plaintiff v.

MELISSA ANN MCFARLAND , […], Québec (Québec) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Mr. Karman is claiming $7000 in damages from Mtre. McFarland because she refused to disclose to him the address of the alleged victim and a witness in a criminal proceeding. [ 2 ] Mtre.

McFarland contends that she did not commit any fault and raises the qualified privilege that Crown attorneys have in civil liability suits. [ 3 ] This case was heard jointly with case 550-32-021979-148, in which Mr. Karman is suing Mtre. Côté, the chief prosecutor for the office of criminal and penal prosecutions. CONTEXT [ 4 ] The evidence shows that Mr. Karman was criminally charged and that, further to the alleged victim’s refusal to testify, he was acquitted. [ 5 ] Following his acquittal, Mr. Karman decided to initiate civil proceedings against the alleged victim and a witness. [ 6 ] Mr.

Karman asked the Gatineau police force to disclose to him the addresses of those persons. [ 7 ] Given the refusal of the Gatineau police force, which Mr. Karman is suing in another case, Mr. Karman contacted Mtre. Côté. [ 8 ] Mtre. Côté is an attorney for the Gatineau office of criminal and penal prosecutions. [ 9 ] The evidence shows that, at least on one occasion, Mtre. Côté met with Mr. Karman and explained to him that he could not disclose the information requested. [ 10 ] Mtre. Côté referred Mr. Karman to Mtre. McFarland, in Québec. Mtre.

McFarland sees to the application of the Access to Information Act at the Direction des poursuites criminelles et pénales. [ 11 ] Mtre. McFarland received the access to information request from Mr. Karman and, in a letter dated May 28, 2014, Mtre. McFarland refused his request and informed him that he could appeal from the decision. [ 12 ] Mr. Karman decided not to appeal from the decision and instituted these proceedings. QUESTIONS IN DISPUTE [ 13 ] The questions in dispute are: (

I) Did Mtre. McFarland commit a fault by refusing to disclose the addresses of the witnesses in a criminal case?

(II) If so, what is the amount of the damages to which Mr. Karman is entitled? ANALYSIS [ 14 ] To win his case, Mr. Karman must prove fault, damage and a causal link between the two, in accordance with

article 1457 of the Civil Code of Québec , which reads as follows: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another . Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature .

He is also bound, in certain cases, to make reparation for injury caused to another by the act or fault of another person or by the act of things in his custody . [ 15 ] To win his claim, Mr. Karman must prove by preponderant evidence the facts on which his claim is based, in accordance with articles 2803 and 2804 of the Civil Code of Québec , which read as follows: 2803. A person seeking to assert a right shall prove the facts on which his claim is based . A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim . 2804.

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof . [ 16 ] Professor Jean-Claude Royer in his handbook on evidence [1] explains preponderant evidence: [TRANSLATION] [174) Assessment of the evidence To fulfil its obligation to convince, a pleading party must provide evidence on the basis of which a fact is more likely to have existed than not, unless more convincing evidence is required by law. The degree of evidence required does not refer to quantity but to quality.

The evidence submitted is not assessed on the basis of the number of witnesses presented by each party, but on the basis of their capacity to convince. Thus, the pleading party must demonstrate that the fact in dispute is not only possible but probable. [ 17 ] The evidence shows that Mr.

Karman was acquitted of the criminal charges against him. [ 18 ] As part of the recourse for damages he wants to institute against the alleged victim and a witness, he requested the addresses of those persons, through the Act respecting Access to documents held by public bodies and the Protection of personal information . [ 19 ] Mtre. McFarland refused Mr.

Karman’s request, on the basis of the Act respecting Access to documents held by public bodies and the Protection of personal information , [2] which indicates in sections 53 and 59.9 the confidential nature of personal information and the context in which it can be disclosed: 53.

Personal information is confidential, except in the following cases : (1) the person to whom the information relates consents to its disclosure; in the case of a minor, consent may also be given by the person having parental authority ; (2) where it relates to information obtained by a public body in the performance of an adjudicative function; the information remains

confidential, however, if the body obtained it when holding a sitting in camera or if the information is contemplated by an order not to disclose, publish or distribute . 59. A public body shall not release personal information without the consent of the person concerned . Notwithstanding the foregoing, a public body may release personal information without the consent of the person concerned in the following cases and strictly on the following conditions : (9) to a person involved in an incident that has been the subject of a report by a police force or by a person or body acting in conformity with

an Act that requires a report of the same nature; in the case of information on the identity of any other person involved in the incident, except a witness, an informer or a person whose health or safety could be endangered by the release of such information. [ 20 ] That Act leaves no room for

interpretation. The Act does not allow Mtre. McFarland to disclose the information requested by Mr. Karman. [ 21 ] In S.F c. Dollard-des-Ormeaux (Ville de) , [3] the Court reiterated those principles, in particular: [TRANSLATION) (19) Paragraph 2(9) of

section 59 provides that a person involved in an incident that resulted in a police report can obtain information concerning another person involved, except a witness or an informer. In this case, the person who lodged a complaint with the police is an informer. Accordingly, under paragraph 2(9) of

section 59, the release of the requested personal information is not allowed].

(20) There is no exception making it possible for the organization to derogate from the prohibition to disclose the plaintiff’s names and addresses to the person requesting them. [ 22 ] Those principles were also reiterated in D.J c. Québec (Ministère de la Sécurité publique) . [4] In that case, the Court stated the reason for subsection 9 of

section 59, as follows: [TRANSLATION]

(59) The refusal by the person in charge to disclose those statements is founded because the goal of subparagraph 9 of the second paragraph of

section 59 is, in particular, to protect people who, as in the police record concerned by the request for access, witnessed an incident that was the subject of a report by a police force. [ 23 ] Hence, the Court concludes that Mtre. McFarland did not commit any fault since she merely abided by the Act. [ 24 ] Mr. Karman had the burden of showing that, on a balance of probabilities, in accordance with articles 2803 and 2804 of the Civil Code of Québec , Mtre. McFarland had committed a fault. Mr. Karman did not discharge his burden in that regard.

THEREFORE, THE COURT: DISMISSES the claim of Gabor Karman; THE WHOLE without costs. __________________________________ PATSY BOUTHILLETTE J.C.Q. Date of hearing: December 3, 2014