2014 QCCQ 12943, 2014 QCCQ 12943

Unofficial English Translation Lapensée-Lafond c. Dallaire 2014 QCCQ 12943 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF R ouyn-Noranda LOCALITY OF R ouyn-Noranda “Civil Division” No.: 600-22-002056-134 DATE: December 10, 2014 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ Charles Lapensée-Lafond , domiciled and residing at ..., Repentigny, District of Joliette, Quebec ... Plaintiff v.

Manuel Dallaire , domiciled and residing at ..., Rouyn-Noranda, District of Rouyn-Noranda, Quebec ... Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff (Lapensée-Lafond) claims $7,000 from the defendant (Dallaire) in moral damages for injury to his reputation. He also claims $5,000 in punitive and exemplary damages for violating his right to life and security. Issues in dispute [ 2 ] Did the defendant injure the plaintiff's reputation?

If so, is the plaintiff entitled to damages? [ 3 ] Did the defendant violate the plaintiff's right to life and security? If so, is the plaintiff entitled to punitive and exemplary damages? [ 4 ] The Court accepts the following facts as proved on a balance of probabilities and useful in resolving the issues in dispute. [ 5 ] The plaintiff was represented by counsel at trial, whereas the defendant was not. The Facts Plaintiff's evidence [ 6 ] The plaintiff and the defendant do not really know each other but do have a few friends in common.

The plaintiff met the defendant in person for the first time on the day of the trial. [ 7 ] In February of 2013, the plaintiff was a manager at the Rouyn-Noranda Tim Hortons. On February 4, his boyfriend sent him a message that the defendant had written. It was a screenshot of a Facebook post from February 3, 2013, at 11:38 p.m. [ 8 ] It said: [ translation ] I would REALLY like to make people who cheat on their boyfriends or girlfriends disappear... it’s crazy!!! You have to be really low to do that to the one you love...!!!

Well I guess I am no better... and I'm okay with that.. :-D Charles Lapensées-Lafond... same on you!!! ;-) [ 9 ] The plaintiff did not understand what was going on. Not only had he been faithful to his boyfriend, but he did not even know the defendant. [ 10 ] At the time of the events, the plaintiff's employer was hiring. The plaintiff is the administrator of the downtown Tim Hortons' Facebook page and his name appears clearly on that page. [ 11 ] On February 22, 2013, the plaintiff was working at the Tim Hortons. The defendant's boyfriend showed up there. The plaintiff served him at the sandwich counter.

He told the boyfriend to warn the defendant to stop posting such comments about him or he would take legal proceedings against him. [ 12 ] Soon after, the defendant called the plaintiff's boss at the Tim Hortons. He wished to file a complaint against the plaintiff

because, in his view, the plaintiff had threatened his boyfriend. The plaintiff then explained the situation to his boss. They agreed that it was a personal matter that was wholly unrelated to the plaintiff's work. His boss gave him the defendant's contact information. She did not follow up on the complaint. [ 13 ] Thinking that he could settle the dispute amicably, the plaintiff called the defendant.

In response, the defendant told him that people had a right to know who the plaintiff really was. [ 14 ] In the minutes after this phone call, the defendant posted the following comments to his Facebook wall: [ translation ] Some people are still alive only because it would be illegal to kill them......!!!! Thank God... or there would be one less manager at the Rouyn Tim Hortons... Fucking Cheaters!!! He threatened MY boyfriend that he would take ME to court because I said that he was cheating on his boyfriend on MY WALL..!!! Sorry, Charles Lapensée-Lafond.. you're a whore and you will ALWAYS be a whore!!!

Good luck with your lawyer in getting me to eat my words... ;-) I am and will always be honest.. with evidence, you're going to lose your case!!! Shame on you honey.. :-) [ 15 ] On February 23, the defendant, posing as his boyfriend, filed a complaint on the Tim Hortons Canada website. The twentieth question reads: [ translation ] 20 Q. Please give us any additional information about your visit to this establishment (4,000 characters maximum).

A. the manager's problems are not mine, which is none of my business, none of my business. if the manager has personal issues with a person in my social circle, he should tell them, not me personally. [ 16 ] The defendant denies that he wrote the complaint and reiterates that it was his boyfriend who did. The remarks he posted on his Facebook wall, however, do not support this allegation. [ 17 ] On February 26, a second complaint was received at the Tim Hortons Canada head office.

According to the complaint, the plaintiff threatened the defendant's boyfriend while at work, with customers present. [ 18 ] The defendant admitted that he called the Tim Hortons Canada head office but that he did so to complain about the plaintiff's boss, who had not followed up on his initial complaint and had protected her employee. [ 19 ] After reading the Facebook message posted on February 22, the plaintiff went to the Sûreté du Québec and filed a complaint against the defendant. [ 20 ] Following this complaint, the defendant reacted on his Facebook page: [ translation ] Loll I just got a call from the SQ. :-P The guy who was cheating on his boyfriend and I talked about on my wall, well he filed a complaint against me...!!

He must be upset that I called his boss and head office because he talked about it to my boyfriend in front of customers while he was at work....;-) What kind of lawyer is going to go to court with that??? :-P ... I know but he did the same thing to my boyfriend... and I didn't make it up, you know, I just let my freedom of expression flag fly... [ 21 ] On March 12, 2013, the plaintiff sent the defendant a demand letter telling him to cease his actions, failing which he would take legal action.

The defendant made fun of the situation on Facebook: [ translation ] To celebrate getting a $10,000 demand letter I am offering myself an $8.87 bottle of wine :-D ... When I win my case, I'll buy myself a bottle of Château Pétrus 1950. Grand cru classé. 11,560.00 Euros.. with the money he thought he could get from me!!! B| ;-) ... I know a lawyer who better haul ass... because I have better things to do than waste my time over his fucking stupid-ass client!!! ...

Hehehehehe, no worries Kevin.. ;-) He's losing cash, and I'm not...who’s the idiot??? :-P My lawyer's not costing me a penny, but his is costing a fortune...all for NOTHING!!! :-) » ...

You BET mommy 2!!! ;-) I told the truth and I'm going to continue to tell it!!! It seems that honesty has a price. lol ;-P ... The bailiff just came by, the plaintiff is not asking for $10,000 anymore but $7,000...!!!! It doesn't matter the plaintiff won't get a red cent from me!!!! ;-) I would SOOOO like you guys to read this!!!! :-P Tomorrow, I meet my lawyer...we're gonna laugh... :-D ... 10,000,000 sperms in his mother's vagina and to think that he won... nature works wonders my eye!!! If his mother had loved him, she would have killed him...!! ... I'm so sick of him, you don't even know how much!!!!

He makes me sick.. and that's no joke. [ 22 ] The defendant apologized to the plaintiff saying that he did not really believe what he had said. He even asked his Facebook friends (400 people) whether they remembered [ translation ] "the guy who had cheated on his boyfriend". [ 23 ] The events had an impact on the plaintiff's life. His relationship, which he admits had its ups and downs, fell apart. In late April, his doctor ordered him to stop working for six weeks. The plaintiff was crying constantly and hiding; he no longer wanted to work behind the Tim Hortons' counter and was sleeping very little.

He no longer wanted to go out about town, afraid of being singled out. Finally, he left the area and went back to school. [ 24 ] At the time of the events, the plaintiff had been working at Tim Hortons for nine years. This was the first time he had ever been the subject of a complaint. [ 25 ] The plaintiff had been working at the Rouyn-Noranda Tim Hortons since 2011. His boss described him as a charming, confident, well-spoken individual. He managed people who were older than him and had the group's approval.

The customers loved him. [ 26 ] The plaintiff admitted to his boss that he had acted badly by speaking to the defendant's boyfriend to try and settle the situation. Defendant's evidence [ 27 ] The defendant explains that this all started when he found out that the plaintiff had cheated on his boyfriend. That was when he reacted by posting the first message on Facebook (P-1). He had consumed two bottles of wine and was taking medication. [ 28 ] He deleted it all the next day because he had gone too far. The message was on his Facebook wall for eight to ten hours.

He wrote it at 11:38 p.m., on February 3, 2013. [ 29 ] He has been clinically depressed for the last three years and suffers from borderline personality disorder. [ 30 ] At one time, police officers called him because he had uttered death threats against the plaintiff. [ 31 ] The defendant has expressed regret. Following the police officers' call, he sent a letter of apology to the plaintiff. [ 32 ] He knows that had he stopped posting to Facebook after the first incident, that would have been the end of it.

He admits that he continued to post to Facebook even after he received the plaintiff's letter of demand, although he never named any names. [ 33 ] He uses the Internet only to go on Facebook, which to him is a sort of [ translation ] "diary" where he confides his thoughts. [ 34 ] The defendant alleges that these proceedings have made him sick. [ 35 ] The defendant is on welfare. The Applicable Law [ 36 ] Defamation is a form of civil liability within the meaning of the Civil Code of Québec . It requires the demonstration of a fault and the damage caused by this fault.

There must be a direct causal link between the fault and the damage. [ 37 ] As authors Baudouin and Deslauriers write: [1] [ translation ] 1-578 – ...

Any injury to reputation is a fault that, if supported by the evidence, must be punished by pecuniary compensation. ... [ 38 ] Defamation gives rise to reparation for the economic, physical, and psychological damage it causes. [ 39 ] Often the claim seeks to compensate moral damages. [2] [ translation ] 1-580 – Moral damages – Most of the time, however, the claim consists principally of the moral damages experienced by the victim. 904 It is therefore a question of compensating the injury to his or her reputation and seeking to remedy the humiliation, contempt, hatred, or ridicule to which he or she was exposed.

The amounts awarded by the courts will vary according to the case. Sometimes the courts award

only symbolic compensation to emphasize the fact that the defamation has been punished, when they deem that the alleged fact is real but there was nevertheless a fault in publishing it. 905 Recently however, the case law has tended to be more generous. 906 Punitive damages must also be added when the attack in intentional. [ 40 ] My colleague, the Honourable Judge Sonia Bérubé, has quoted some very relevant excerpts from the Court of Appeal judgment in Société Radio Canada v.

Radio Sept-Îles to define defamation. [3] [ translation ] [35] The definition of defamation most accepted by case law is that given by Lebel, J.A. in Société Radio-Canada v. Radio Sept-Îles [5] [ translation ] Generically, defamation consists in the communication of spoken or written remarks that cause someone to lose in estimation or consideration, or that prompt unfavourable or unpleasant feelings toward him or her (see N. Vallières, La Presse et la diffamation (Montreal: Wilson & Lafleur, 1985) at 6–8).

It implies unlawful interference with a person’s reputation through negative remarks about the person or the hatred, contempt or ridicule to which he or she is exposed (see J. Pineau and M. Ouellette-Lauzon, Théorie de la responsabilité civile , 2d ed. (Montreal: Thémis, 1980) at 62; see also: Dufresne v. Massicotte,

(1988) R.R.A. 22 at 24, opinion of Beauregard, J.A.; J.-L. Baudouin, La responsabilité civile , 3d ed. (Cowansville, Que.: Yvon Blais, 1990) at 162–163; A. Nadeau and R. Nadeau, Traité pratique de la responsabilité civile délictuelle (Montreal: Wilson & Lafleur Ltd, 1971) at 248). Defamation is generically defined as the wrongful injury to the reputation of another. It takes various forms. Written or verbal, it may be caused by written or electronic press. It sometimes results from the mere communication of erroneous information or information that is without interest.

If the information is correct, it may result from its being disseminated without public interest. Sometimes, it takes the form of commentary or unjustified or malicious criticism. In every case, a delictual or quasi-delictual fault must form the basis of the liability (J.-L.

Baudouin, supra at 163-164). [ 41 ] As Bérubé, J. points out, defamation has three separate meanings. [4] [ translation ] [36] In his judgment, LeBel, J.A. also reiterated the comments of Professors Pineau and Ouellet-Lauzon, who described the three (3) distinct meanings of defamation: [ translation ] Defamation is the act of saying something unpleasant or providing unfavourable information about another person. When is this a fault? (

a) A person commits a fault by “saying” unpleasant or unfavourable things about another that he or she knows to be false . Such remarks can only be made maliciously, with the intention of harming another person. Where there is intent to harm, the delict of fraud is committed. (

b) A person commits a fault by “saying” unpleasant or unfavourable things about another that he or she ought to know to be false . A reasonable and informed person does not spread unfavourable information about another person if there are reasons to doubt the truth of the information: a reasonable person does not give out ill-considered information about others. (

c) A person commits a fault by making unfavourable comments about another, even if they are true, if he or she makes them without valid reasons . [Emphasis added] [ 42 ] Using the words of authors Baudouin and Deslauriers, Bérubé, J. added the circumstances in which defamation gave rise to an action in damages. [5] [ translation ] [38] Author Baudouin also states that: [ translation ] For defamation to give rise to an action in damages, its author must have committed a fault. This fault may be the result of two types of conduct.

The first is conduct in which the defendant, knowingly, in bad faith, and with intent to harm, attacks the victim’s reputation and tries to ridicule, humiliate,, or expose the victim to the hatred or contempt of the public or a group. The second results from conduct in which there is no intent to harm but in which the defendant has nonetheless interfered with the victim’s reputation through temerity, negligence, impertinence or carelessness.

Both kinds of conduct give rise to liability and entitle the victim to reparation, with no difference between them in under the law. [7] [ 43 ] For the purpose of deciding this dispute, articles 3 , 35 , 1457 , and 1621 of the Civil Code of Québec are relevant. 3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable.

35. Every person has a right to the respect of his reputation and privacy. No one may invade the privacy of a person without the consent of the person unless authorized by law. 1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstance, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. 1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person. [ 44 ] Sections 4 , 5 , and 49 of the Quebec Charter of human rights and freedoms are also relevant. 4. Every person has a right to the safeguard of his dignity, honour and reputation. 5. Every person has a right to respect for his private life. 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 punitive damages. Analysis and Decision [ 45 ] The defendant acknowledges that he made the remarks alleged by the plaintiff (P-1 and P-2).

He further acknowledges that he did so intentionally, although he was under the influence of alcohol and medication, which is no excuse. [ 46 ] According to his version, the comments he made at 11:38 p.m. on February 3 stayed on Facebook for eight to ten hours at most. According to the defendant, his Facebook friends number approximately 400 and are not very active at that time of the night. He deleted his comments, deeming that he had gone too far. [ 47 ] The events of February 22, 2013, then took place.

While at work, the plaintiff spoke to the defendant's boyfriend so that the latter could put an end to the former's actions. The plaintiff's interference riled the defendant because he interpreted the plaintiff's actions as threatening to his boyfriend. That was when the defendant called the owner of the Tim Hortons to complain about the plaintiff. Thinking that it was for the best, the owner gave the plaintiff the defendant's contact information so that they could settle the dispute amicably. The plaintiff called the defendant, which made the situation worse.

The situation escalated to a complaint filed with the police, a letter of demand and the defendant's inappropriate response on Facebook. [ 48 ] The evidence is conclusive on a balance of probabilities and there is an admission by the defendant that the comments made on February 3, 2013, at 11:38 p.m. were his and that they were made intentionally. These comments constitute defamation because, whether true or false, they are unpleasant remarks within the meaning of Société Radio Canada v.

Radio Sept-Îles , maybe even threats, that were made without valid reasons. [ 49 ] By writing what he did, the defendant committed a fault that injured the plaintiff's reputation. [ 50 ] The defendant cannot minimize his liability by arguing that he was depressed or that he had consumed alcohol and medication. Nor can he present himself as the victim by alleging that subsequent events, including the legal proceedings, have compromised his health. [ 51 ] But what of the damages? [ 52 ] The plaintiff is entitled to damages for injury to reputation.

The award of damages must also remedy the humiliation, stress, and consequences of the defendant's actions. [ 53 ] The damages alleged by the plaintiff are moral damages. By spreading the rumour of the plaintiff's infidelity without any reason to do so, the defendant injured his reputation, honour, and privacy. The comments were widely disseminated because the defendant has about 400 Facebook friends. [ 54 ] Assessing moral damages is complicated, as authors Baudouin and Deslauriers have noted.

That is why the Court must analyze several elements to do so. [6] [ translation ] 1-585 – Assessment factors – As one author has properly demonstrated, analyzing the factors that influence an assessment of the moral damages is complicated. The first is the seriousness of the act. Is it merely a discourteous or impolite comment, 931 or is it a full-fledged

attack? 932 The defamer’s intent, while of no importance in establishing the existence of a wrong, may be relevant when it comes to assessing the prejudice.

Thus, for example, the case law is more severe in cases where the defamer reiterated his remarks during legal proceedings 933 or used defamation in an attempt to ruin the plaintiff or hinder his political aspirations. 934 The dissemination of the defamation is also of some consequence. 935 Widespread publicity should logically justify 936 a more generous award than publicity within a small circle, unless the circle was carefully targeted. 937 Similarly, the scope of the damages may vary according to the environment in which the defamation occurred. 938 Other factors should also be considered, such as: the condition of the parties, 939 the consequences of the act on the victim and those close to him, 940 the repetition of the defamatory remarks by the perpetrators, 941 the duration of the attack, 942 and the permanence or impermanence of the effects. 943 Factors related to the victim's person 944 may also give rise to a variation in the amount of the award in damages, for example, in the case of a natural person or a legal person, 945 his or her notoriety, 946 the position he or she occupies and the importance of professional integrity in performing this position, 947 his or her prior reputation. 948 Some judgments have even considered the victim's conduct to justify reducing the quantum of damages. 949 In contrast, one author points out that the courts now also tend to take into consideration the identity of the defendants. 950 Finally, the existence of an apology or retraction, even where the situation is not governed by the Press Act , 951 may constitute a factor mitigating the damages, whereas their making excuses may constitute an aggravating factor. 952 [ 55 ] The plaintiff alleges that the duration of the injury lasted from February to April of 2013.

The Court does not share his opinion as to duration. The evidence reveals on a balance of probabilities that, starting on February 22, the plaintiff spoke to the defendant's boyfriend and to the defendant himself. The plaintiff should not have acted in this way because he made the situation worse and thereby contributed to the damage.

For the purpose of assessing the damage, regarding the duration of the defamation, the Court accepts that it took place on February 3, at 11:38 p.m. and that it was disseminated to the defendant's 400 Facebook friends for 8 to 10 hours. [ 56 ] The seriousness of the remarks is significant because they were threatening and worrisome. The defendant wanted to humiliate and clearly identify the plaintiff, since he disclosed his name, his occupation, and his workplace.

This defamation devastated the plaintiff and brought about the end of his relationship. [ 57 ] The Court also accepts that the defendant withdrew the offensive remarks on his own. He apologized to the plaintiff. [ 58 ] Like Bérubé, J., the Court disapproves of using Facebook to let off steam and cites with approval this excerpt from Carpentier v. Tremblay : [7] [ translation ] [58] Also, the Court considers that it is important to disapprove of using Facebook as Tremblay did to blow off steam.

By inviting various persons to get involved in this dispute, Tremblay exposed Carpentier even more by calling on strangers who unreservedly made comments, some under cover of anonymity.

In fact, in Municipalité de Rawdon, Richer, J. [9] went so far as to assert that: [ translation ] Using the Internet to disseminate defamation makes correcting the negative impression left by the defamatory remarks practically impossible. [ 59 ] In assessing the damages, the Court also accepts the fact that the plaintiff had a job where he was constantly interacting with the public. [ 60 ] The Court uses its discretion and assesses the damages for the plaintiff's injury to reputation at $1,500. [ 61 ] Furthermore, the Court rules in favour of the plaintiff's claim for exemplary damages for the violation of his right to life and security under the Charter . [ 62 ] To award exemplary damages, proof must be made that the injury was intentional and unlawful.

These damages must be assessed in accordance with the criteria set out in

article 1621 of the Civil Code of Québec . [ 63 ] The evidence reveals that the defendant's remarks violated the plaintiff’s privacy and reputation, which are protected under the Charter . The violation was intentional and was committed with intent to harm. In the circumstances of this case, the Court awards $500 to the plaintiff in punitive damages. [ 64 ] The Court finds that the defendant's condemnation should make him realize that social networks are not a platform where anything can be said about anybody without the possibility of incurring liability.

This condemnation should have a deterrent effect on the defendant and any other person who would be tempted to imitate him. FOR THESE REASONS, THE COURT: [ 65 ] Allows the action in part; [ 66 ] Condems the defendant Manuel Dallaire to pay the plaintiff Charles Lapensée-Lafond the amount of $1,500 in damages, with interest at the legal rate and the additional indemnity according to

article 1619 of the Civil Code of Québec as of April 16, 2013; [ 67 ] Condemns the defendant Manuel Dallaire to pay the plaintiff Charles Lapensée-Lafond the amount of $500 in punitive and exemplary damages, with interest at the legal rate from the date of this judgment; [ 68 ] The whole with costs.

__________________________________ JOSÉE BÉLANGER, J.C.Q. Mtre Julie Hamelin, for the plaintiff Date of hearing: June 26, 2014