Ville de Montréal Appellant v. Davide Lonardi, Simon Côté Béliveau,, 2018 SCC 29

SUPREME COURT OF CANADA Citation: Montréal (Ville) v. Lonardi , 2018 SCC 29, [2018] 1 S.C.R. 104 Appeal Heard: October 3, 2017 Judgment Rendered: June 8, 2018 Docket: 37184 Between: Ville de Montréal Appellant and Davide Lonardi, Simon Côté Béliveau, Jonathan Franco and Jean-François Hunter Respondents And Between: Ville de Montréal Appellant and Ali Rasouli Respondent And Between: Ville de Montréal Appellant and

M ohamed Moudrika, Jean-Philippe Forest Munguia and Jonathan Beaudin Naudi Respondents And Between: Ville de Montréal Appellant and Éric Primeau, Steve Chaperon, Illiasse Iden, Johnny Davin, Natna Nega, Nathan Bradshaw and Maxime Favreau Courtemanche Respondents And Between: Ville de Montréal Appellant and Natna Nega Respondent And Between: Ville de Montréal Appellant and Benjamin Kinal, Jonathan Beaudin Naudi, Simon Légaré and Daniel Daoust Respondents

Official English Translation Coram: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. Reasons for Judgment: (paras. 1 to 92) Gascon J. (McLachlin C.J. and Karakatsanis, Wagner, Brown and Rowe JJ. concurring) Dissenting Reasons: (paras. 93 to 139) Côté J. Montréal (Ville) v. Lonardi, 2018 SCC 29, [2018] 1 S.C.R. 104 Ville de Montréal Appellant v. Davide Lonardi, Simon Côté Béliveau, Jonathan Franco and Jean-François Hunter Respondents - and - Ville de Montréal Appellant v. Ali Rasouli Respondent - and - Ville de Montréal Appellant v.

Mohamed Moudrika, Jean-Philippe Forest Munguia and Jonathan Beaudin Naudi Respondents - and - Ville de Montréal Appellant v. Éric Primeau, Steve Chaperon, Illiasse Iden, Johnny Davin, Natna Nega, Nathan Bradshaw and Maxime Favreau Courtemanche Respondents

- and - Ville de Montréal Appellant v. Natna Nega Respondent - and - Ville de Montréal Appellant v. Benjamin Kinal, Jonathan Beaudin Naudi, Simon Légaré and Daniel Daoust Respondents Indexed as: Montréal (Ville) v. Lonardi 2018 SCC 29 File No.: 37184. 2017: October 3; 2018: June 8. Present: McLachlin C.J. and Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. on appeal from the court of appeal for quebec Civil liability — Apportionment of liability — Damages — Solidarity — Civil action being instituted against rioters for damage done to patrol cars — Whether rioters are solidarily liable for whole of damage done to patrol car during riot because they jointly took

part in wrongful act within meaning of art. 1480 of Civil Code of Québec — Whether rioters committed common fault or contributory faults as result of which they are solidarily liable under art. 1526 of Civil Code of Québec — Whether rioters are liable in solidum — Civil Code of Québec, arts. 1480, 1526. On the night of April 21, 2008, the Montréal Canadiens were playing the Boston Bruins in the playoffs. When the Canadiens won the game and eliminated their archrivals, the jubilant crowd went out to celebrate downtown.

The spontaneous gathering was initially festive, but turned into a riot as the evening progressed. Numerous acts of mischief were committed over a period of more than three hours. These included the vandalizing of 15 patrol cars belonging to the police department of Ville de Montréal (“City”). Nine of the cars were total losses; the other six required major repairs. The police investigation, helped in particular by photographs and videos, led to the identification and arrest of a number of rioters, including about 20 people who had damaged or destroyed several of the City’s patrol cars.

The City decided to institute one civil action per vehicle, with the exception of one action relating to two vehicles that had been damaged by two individuals acting in concert. In each action, it grouped together all the identified rioters who had done damage to the vehicle or vehicles in question. It sought to have the defendants in each case held solidarily liable for the whole of the damage done to the specific patrol car and to its equipment, regardless of the nature or seriousness of the wrongful act each of them had committed.

In the six cases at issue in this appeal, the Court of Québec ordered each defendant to make reparation for the specific damage caused by his own acts. It declined to find the defendants in each action solidarily liable, with the exception of two defendants who had acted together to set fire to a patrol car. It also ordered each defendant to pay punitive damages. In a unanimous decision, the Court of Appeal held that the facts of these cases did not support the application of arts. 1480 and 1526 of the Civil Code of Québec , which provide for solidarity in cases of extracontractual fault.

Held (Côté J. dissenting) : The appeal should be dismissed. Per McLachlin C.J. and Karakatsanis, Wagner, Gascon, Brown and Rowe JJ.: In Quebec civil law, solidarity is not presumed. In cases of extracontractual fault, solidarity exists only where it is provided for by law. Articles 1480 and 1526 of the Code set out the circumstances in which there is a solidary obligation to make reparation for injury caused by an extracontractual fault. In the case of art. 1480 C.C.Q. , two conditions must be met for it to apply. First, it must be impossible to determine which person actually caused the injury.

Second, there must have been either “join[t participation] in a wrongful act which has resulted in injury” or “separate faults each of which may have caused the injury”. These two conditions that must be met for art. 1480 C.C.Q. to apply are cumulative. The words “in either case” in art. 1480 C.C.Q. indicate that the

article imposes solidarity only where it is impossible to determine who committed the fault that caused the injury and that this is true in both of the situations in which this

article applies: that of joint participation in a wrongful act and that of separate faults. This is the

interpretation that is most consistent with the words of the

article as well as with the scheme and object of the statute and the intention of the legislature. It is consistent with the scheme of our civil liability system to interpret art. 1480 C.C.Q. such that, in every case, solidarity can be imposed only if it is impossible to identify the

person who committed the fault that caused the injury. To limit this outcome to cases involving separate faults, while excluding those involving joint participation in wrongful acts from the scope of this provision, would place the provision in conflict with the central role of causation in the scheme of extracontractual liability established by the Code . It was in the name of fairness that the legislature chose not to leave a victim without recourse where two or more persons have jointly taken

part in a wrongful act or have committed separate faults and it is impossible to determine who committed the fault that actually caused the injury.

Article 1480 C.C.Q. thus has the effect, where the conditions for its application are met, of shifting the burden of proof with respect to causation. But it does not justify holding a defendant liable for damage that is known not to have been caused by his or her fault on the basis that the victim cannot identify the person who caused the damage in question.

Article 1480 C.C.Q. concerns, in part, joint participation in wrongful acts. However, although the current legislative provisions governing extracontractual solidarity do codify the pre-existing case law, it would be wrong to say that all the decisions in which the term “common venture” was used would now automatically fall within the scope of art. 1480 C.C.Q.

It is under art. 1526 C.C.Q. , not under art. 1480 C.C.Q. , that solidary liability can now be imposed on those who commit common or contributory faults where the evidence shows which person committed the fault that actually caused the injury, for which the courts formerly sometimes used the expression “common venture”. The existence of a common intention is required for the concept of joint participation in a wrongful act in the context of the new scheme of art. 1480 C.C.Q. , just as it was for the common venture concept in that of the former Code .

This intention may be tacit, but at the very least, the defendant must have been aware of the acts or omissions that constituted the wrongful act and must have intended to take

part in them. In determining whether there was a common intention, a court should avoid defining the wrongful act so broadly that the common intention no longer bears any relation to reality. The specific circumstances of the cases at issue in this appeal do not show that the rioters acted with a common intention, either express or tacit. There is no doubt that groups formed in the course of the riot. But the trial judge held in analyzing the evidence that this was not true where the respondents were concerned.

With a few exceptions, which the judge rightly dealt with differently, the respondents did not know and were never in contact with one another, and their acts were committed at different times during the riot without the knowledge of the other respondents. These are findings of fact that are not open to review on appeal unless a palpable and overriding error was made in making them. They are valid regardless of whether the wrongful act was participation in the riot or participation in the total destruction of a vehicle.

It follows that, for two compelling reasons, the respondents cannot be found solidarily liable under art. 1480 C.C.Q. First, the trial judge found that the evidence made it possible to link each of the faults committed by the respondents to a specific injury. This finding is amply supported by the evidence that was considered in each case. Second, the faults of the respondents involved in each of the actions instituted by the City did not constitute joint participation in a wrongful act given that the respondents in question did not have a common intention.

As to art. 1526 C.C.Q. , for it to apply, the fault of two or more persons must have caused a single injury. Given that the trial judge made no palpable and overriding error that would taint his finding that a single injury did not result from the rioters’ separate faults, there is no reason to intervene. The trial judge found no causal connection between each respondent’s participation in the riot and the total destruction of the patrol cars.

Rather, he found that there were many distinct and identifiable injuries, each caused by a fault that was just as distinct and identifiable, and that he linked to a particular rioter. At most, the rioters’ faults contributed to the context in which the patrol cars were subsequently destroyed. While it is true that a fault that is not causally connected to the damage in question cannot ground an obligation to make reparation for the injury, it can nonetheless, as in these cases, form the basis for an award of punitive damages.

However, the trial judge’s remarks in this regard cannot be taken out of context and used to contradict his clear finding that there was no causal connection between each rioter’s faults and the whole of the injury that was suffered. Finally, neither the academic literature nor the case law includes cases in which the principles related to the obligation in solidum have been applied to faults that are, as in the instant cases, exclusively extracontractual.

Unlike in cases involving separate contractual faults or faults that are both contractual and extracontractual, the solidarity of debtors who have committed extracontractual faults is governed by a complete legislative framework set out in arts. 1480 and 1526 C.C.Q. It is not appropriate to circumvent the comprehensive legislative scheme governing solidarity in cases of extracontractual fault and to seek to obtain similar effects by way of liability in solidum .

Per Côté J. (dissenting): Rioters who act together to do damage to property must be held solidarily liable for reparation of the whole of the injury suffered by the victim in respect of that property. In the circumstances, the conduct of all the individuals who took

part in the destruction of a given patrol car constituted joint participation in a wrongful act. Their conduct ultimately led to the total loss of the vehicle, and these individuals are therefore solidarily liable for reparation of that injury under art. 1480 C.C.Q.

Article 1480 is new law. It codified the case law from before the Civil Code of Québec came into force. It is clear from the case law in question that it is not necessary, in order to find the rioters solidarily liable, to establish that they had a clear intention to commit mischief or had plotted to do so. When the Civil Code of Lower Canada was in force, the courts did not hesitate to impose joint and several liability on a group of persons who had acted spontaneously, but whose actions or attitudes were connected with and inseparable from the damage the victim had suffered.

It is thus possible, in cases involving spontaneous acts, to find that a collective fault has been committed even though the group did not plan its actions in advance or expressly agree to them. The riot of April 21, 2008, viewed as a whole, cannot constitute joint participation in a wrongful act, as it was an event that was too vast for there to be a sufficient nexus between the actions of all the participants. Every person who committed a fault that night could not be found solidarily liable for the whole of the damage.

This does not mean that wrongful acts in which smaller groups jointly took part during the riot cannot be identified, though. But the trial judge did not decide this issue. In these cases, small groups of individuals did in fact form during the riot. Each of those groups attacked a single patrol car until it was completely destroyed. Given the individual conduct of the persons who did damage to the same property together with the bandwagon atmosphere that resulted, there is no doubt that their actions, whose ultimate purpose was, collectively, to destroy a single patrol car, were connected.

Though the acts were not identical and were not always committed at exactly the same time, they were a

series of related acts that were committed in the same place within a short period of time and in relation to the same property. Thepersons who participated in the destruction of a given patrol car thus jointly took

part in a wrongful act. Moreover, their jointparticipation in a wrongful act resulted in injury: the total loss of the patrol car. It is not a matter here of questioning the trial judge’s findings that the riot as a whole was not a common venture and thatthere was no causal connection between the riot as a whole and the destruction of the various vehicles. However, the trial judge erred inlaw in defining joint participation in a wrongful act. His findings of fact lead to the conclusion that the rioters in question jointly took partin wrongful acts during the riot and that each of the acts they took

part in resulted in the destruction of a patrol car. All in all, thosefindings were sufficient to hold the rioters in question solidarily liable for reparation of the whole of that injury, and it was thereforeunnecessary to identify separate faults within this collective fault and link each one to a portion of the damage done by the group. Once afinding of solidarity has been made, art. 1478 C.C.Q. instead requires that the seriousness of the faults committed by the defendants whohave been found solidarily liable be assessed in order to apportion liability among them.

This means that the identification of individualfaults and the determination of their nature and seriousness are relevant only to the apportionment of liability among the persons whojointly took

part in the wrongful act and do not affect the question whether those persons are solidarily liable to the victim. There are many examples of cases decided in the context of the Civil Code of Lower Canada in which the members of agroup that had taken

part in a common venture were held jointly and severally liable even though it had been shown on a balance ofprobabilities which person had actually caused the injury. Logically, the same conclusion applies even where it is possible to identify amember of the group who directly caused only a portion of the injury. This is because it is the collective fault that is agreed to be thesource of the injury regardless of which person directly caused the injury. This is the very case law the legislature codified in enactingarts. 1480 and 1526 C.C.Q.

There is no indication that the legislature intended to add another requirement to the concept of jointparticipation in a wrongful act, as defined by the courts, when it codified that concept in the Civil Code of Québec. The legislature did not intend to make the application of art. 1480 C.C.Q. subject to the requirement that it be impossible todetermine the identity of the person who caused the injury. This

interpretation is consistent with the wording of the article, with thelegislature’s intention to codify the earlier case law and with the scheme and object of the legislation. But even if that were the case, therequirement in question would not affect the outcome of this appeal. It would then have to be found that the combined conduct of thevarious rioters in question constituted a common fault, a type of fault that also leads to a finding of solidary liability, but under art. 1526C.C.Q. instead. Cases Cited By Gascon J. Distinguished: D’Allaire v. Trépanier, [1961] C.S. 619; Gagné v.

Monzerolle, [1967] B.R. 899; Laxton v. Sylvestre, [1972]C.S. 297, aff’d [1975] C.A. 648; Massignani v. Veilleux, (QC CA), [1987] R.L. 247; Royale du Canada, Cied’assurance v. Légaré, [1991] R.J.Q. 91; Dumont v. Desjardins, [1994] R.R.A. 459; Valois v. Giguère, 2006 QCCS 1272; Bamboukian v.Karamanoukian, 2014 QCCA 2093; Roy v. Privé, 2017 QCCS 986; considered: Assurances générales des Caisses Desjardins inc. v.Morissette, [2005] R.R.A. 1273; I.C.B.C. v. Stanley Cup Rioters, 2016 BCSC 1108; referred to: Larouche v. Simard, 2009 QCCS 529,[2009] R.J.Q. 768; Canada (Attorney General) v.

Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Doré v. Verdun (City), (SCC), [1997] 2 S.C.R. 862; Simard v. Lavoie, ; St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352;Martel v. Hôtel-Dieu St-Vallier, (CSC), [1969] S.C.R. 745; Grand Trunk Railway Co. of Canada v. McDonald (1918), (SCC), 57 S.C.R. 268; Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132; Housen v. Nikolaisen,2002 SCC 33, [2002] 2 S.C.R. 235; Quebec (Director of Criminal and Penal Prosecutions) v.

Jodoin, 2017 SCC 26, [2017] 1 S.C.R.478; Ontario (Attorney General) v. Bear Island Foundation, (SCC), [1991] 2 S.C.R. 570; Quebec (Commission desdroits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2S.C.R. 789; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Dallaire v. Paul-Émile Martel Inc., (SCC), [1989] 2 S.C.R. 419; Montréal (Ville) v. Tarquini, (QC CA), [2001] R.J.Q. 1405; de Montigny v.Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; Richard v.

Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265; Prévost-Masson v.General Trust of Canada, 2001 SCC 87, [2001] 3 S.C.R. 882; Gilles E. Néron Communication Marketing Inc. v. Chambre des notairesdu Québec, 2004 SCC 53, [2004] 3 S.C.R. 95; Dostie v. Sabourin, (QC CA), [2000] R.J.Q. 1026; Homans v. GestionParoi inc., 2017 QCCA 480; Solomon v. Québec (Procureur général), 2008 QCCA 1832, [2008] R.J.Q. 2127; Cinar Corp. v. Robinson,2013 SCC 73, [2013] 3 S.C.R. 1168; 2855-0523 Québec inc. v. Ivanhoé Cambridge inc., 2014 QCCA 124, 45 R.P.R. (5th) 64; Fondsd’assurance responsabilité professionnelle du Barreau du Québec v.

Gariépy, 2005 QCCA 60, [2005] R.J.Q. 409. By Côté J. (dissenting) Massignani v. Veilleux, [1987] R.R.A. 541; Gagné v. Monzerolle, [1967] B.R. 899; D’Allaire v. Trépanier, [1961] C.S. 619;de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; Laxton v. Sylvestre, [1972] C.S. 297, aff’d [1975] C.A. 648;Dumont v. Desjardins, [1994] R.R.A. 459; Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184; Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. Statutes and Regulations Cited Charter of the French Language, CQLR, c. C-11, s. 7(3). Civil Code of Lower Canada, art. 1106.

Civil Code of Québec, arts. 1457, 1478, 1480, 1525 para. 1, 1526, 1621, 2803, 2804, 2849. Code of Civil Procedure, CQLR, c. C-25.01, art. 328. Constitution Act, 1867, s. 133.

Interpretation Act , CQLR, c. I-16, ss. 41, 41.1 . Authors Cited Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations , 7 e éd. par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Que.: Yvon Blais, 2013. Baudouin, Jean-Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile , 8 e éd. Cowansville, Que.: Yvon Blais, 2014. Canadian Oxford Dictionary , 2nd ed. by Katherine Barber. Don Mills, Ont.: Oxford University Press, 2004, “either”. Code civil du Québec : Annotations — Commentaires 2017-2018 , 2 e éd. par Benoît Moore, dir., et autres. Montréal: Yvon Blais, 2017.

Cumyn, Michelle. “Responsibility for Another’s Debt: Suretyship, Solidarity, and Imperfect Delegation” (2010), 55 McGill L.J. 211. Deschamps, Pierre. “Cas d’exonération et partage de responsabilité en matière extracontractuelle”, dans JurisClasseur Québec — Collection droit civil — Obligations et responsabilité civile , vol. 1, par Pierre-Claude Lafond, dir. Montréal: LexisNexis, 2008, fascicule 22 (feuilles mobiles mises à jour septembre 2017, envoi n o 17).

Deschamps, Pierre. “Faute personnelle”, dans JurisClasseur Québec — Collection droit civil — Obligations et responsabilité civile , vol. 1, par Pierre-Claude Lafond, dir. Montréal: LexisNexis, 2008, fascicule 17 (feuilles mobiles mises à jour septembre 2017, envoi n o 17). de Villers, Marie-Éva. Multidictionnaire de la langue française , 5 e éd. Montréal: Québec Amérique, 2009, “ l’un ou l’autre ”, tableau “ un ”. Drouin-Barakett, Francine, et Pierre-Gabriel Jobin. “La faute collective dans l’équipe de professionnels” (1978), 56 Can. Bar. Rev. 49.

Gage Canadian Dictionary , rev. and exp. ed. by Gaelan Dodds de Wolf et al. Vancouver: Gage Educational Publishing Company, 1997, “either”. Grammond, Sébastien. “Un nouveau départ pour les dommages-intérêts punitifs” (2012), 42 R.G.D. 105 . Guide to Canadian English Usage , 2nd ed. by Margery Fee and Janice McAlpine. Don Mills, Ont.: Oxford University Press, 2007, “either . . . or, neither . . . nor”. Karim, Vincent. Les obligations , vol. 1, 4 e éd. Montréal: Wilson & Lafleur, 2015.

Khoury, Lara. “Lien de causalité”, dans JurisClasseur Québec — Collection droit civil — Obligations et responsabilité civile , vol. 1, par Pierre-Claude Lafond, dir. Montréal: LexisNexis, 2008, fascicule 21 (feuilles mobiles mises à jour septembre 2017, envoi n o 17). Levesque, Frédéric. L’obligation in solidum en droit privé québécois , Cowansville, Que.: Yvon Blais, 2010. Lluelles, Didier, et Benoît Moore. Droit des obligations , 2 e éd. Montréal: Thémis, 2012. Mayrand, Albert. “L’énigme des fautes simultanées” (1958), 18 R. du B. 1. Quebec. Civil Code Revision Office. Committee on the Law of Obligations.

Report on Obligations . Montréal: Civil Code Revision Office, 1975. Quebec. Ministère de la Justice. Commentaires du ministre de la Justice , t. I, Le Code civil du Québec — Un mouvement de société . Québec: Publications du Québec, 1993. Quebec. Office québécois de la langue française. L’un ou l’autre , Banque de dépannage linguistique, avril 2018 (online: http://bdl.oqlf.gouv.qc.ca/bdl/gabarit_bdl.asp?Th=2&t1=&id=3840; archived version: http://www.scc-csc.ca/cso-dce/2018SCC- CSC29_1_fra.pdf ). Tancelin, Maurice. Des obligations en droit mixte du Québec , 7 e éd. Montréal: Wilson & Lafleur, 2009.

Vézina, Natalie. “Cas d’exonération et partage de responsabilité en matière contractuelle”, dans JurisClasseur Québec — Collection droit civil — Obligations et responsabilité civile , vol. 1, par Pierre-Claude Lafond, dir. Montréal: LexisNexis, 2008, fascicule 31 (feuilles mobiles mises à jour septembre 2017, envoi n o 17). Vézina, Nathalie, et Louise Langevin. “Les modalités de l’obligation”, dans Collection de droit de l’École du Barreau du Québec 2017- 2018, vol. 6, Obligations et contrats . Montréal: Yvon Blais, 2017, 115.

APPEAL from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Émond and Hogue JJ.A.), 2016 QCCA 1022 , [2016] AZ-51296257, [2016] J.Q. n o 6476 (QL), 2016 CarswellQue 5327 (WL Can.), affirming the decisions of Coutlée J.C.Q., 2014 QCCQ 4916, [2014] AZ-51084816, [2014] J.Q. n o 6758 (QL), 2014 CarswellQue 7068 (WL Can.), 2014 QCCQ 4915 , [2014] AZ-51084815, [2014] J.Q. n o 6775 (QL), 2014 CarswellQue 7064 (WL Can.), 2014 QCCQ 4920 , [2014] AZ-51084820, [2014] J.Q. n o 6778 (QL), 2014 CarswellQue 7070 (WL Can.), 2014 QCCQ 4919, [2014] AZ-51084819, [2014] J.Q. n o 6777 (QL), 2014

CarswellQue 7067 (WL Can.), 2014 QCCQ 4902, [2014] AZ-51084349, [2014] J.Q. n o 6760 (QL), 2014 CarswellQue 7065 (WL Can.), 2014 QCCQ 4921 , [2014] AZ-51084821, [2014] J.Q. n o 6761 (QL), 2014 CarswellQue 7066 (WL Can.) . Appeal dismissed, Côté J. dissenting. Jean-Nicolas Legault-Loiselle , Hugo Filiatrault and Pierre Yves Boisvert , for the appellant. Mélany Renaud , for the respondents Davide Lonardi, Jonathan Franco and Maxime Favreau Courtemanche. Nataly Gauvin , for the respondent Jean-François Hunter. Roberto T. De Minico and Ayda Abedi , for the respondent Jean-Philippe Forest Munguia.

Louise Desautels , for the respondent Éric Primeau. No one appeared for the respondents Simon Côté Béliveau, Ali Rasouli, Mohamed Moudrika, Jonathan Beaudin Naudi, Steve Chaperon, Illiasse Iden, Johnny Davin, Natna Nega, Nathan Bradshaw, Benjamin Kinal, Simon Légaré and Daniel Daoust. English version of the judgment of McLachlin C.J. and Karakatsanis, Wagner, Gascon, Brown and Rowe JJ. delivered by Gascon J. — I. Overview [ 1 ] This appeal illustrates the apparent conflict that sometimes exists between two core principles of extracontractual liability in Quebec civil law.

The first of these principles is that of full compensation for injury. The second is the principle that, unless an exception applies, a person is liable for reparation only of injuries caused by his or her own fault. [ 2 ] The Civil Code of Québec (“ C.C.Q. ” or “ Code ”) establishes a scheme that strikes a balance between these principles.

Article 1457 of the Code provides for full compensation for injury caused by a fault.

Article 1525 para. 1 provides that solidarity between debtors is not presumed. Articles 1480 and 1526 set out the circumstances in which there is a solidary obligation to make reparation for injury caused by an extracontractual fault. [1] The Code thus lays down the general principle that a person is liable only for damage he or she causes, but qualifies this principle to favour full compensation of a victim who suffers a single injury as a result of extracontractual faults committed by two or more persons.

However, because solidarity represents a deviation from the general principle, it must be applied strictly (see D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at No. 2581). [ 3 ] The central issue in this appeal requires the application of these principles.

It may be summed up as follows: To what extent can a rioter who has caused property damage be held solidarily liable to the victim for damage done to the same property by other rioters? [ 4 ] I agree with the Court of Appeal and the Court of Québec that the facts of these cases do not support the application of the articles of the Code that provide for solidarity in cases of extracontractual fault. The evidence is such that it is possible to determine what specific damage to the victim’s property was caused by each of the identified rioters.

That being the case, this legislative scheme cannot be circumvented by imposing liability in solidum in this context either. The appeal must therefore be dismissed. II. Facts [ 5 ] Hockey is a tradition that is of particular significance in Montréal. Every spring when the Canadiens are in the playoffs, the city’s mood varies with the success or failure of its team. On the night of April 21, 2008, the Canadiens were playing the Boston Bruins. The rivalry between the two teams is legendary. Excitement was at a fever pitch. It was the seventh game of the series, and the teams were tied.

When the Canadiens won the game and eliminated their archrivals, the jubilant crowd went out to celebrate downtown. The spontaneous gathering was initially festive, but unfortunately turned into a riot as the evening progressed. Numerous acts of mischief were committed over a period of more than three hours. These included the vandalizing of 15 patrol cars belonging to the police department of the appellant, Ville de Montréal (“City”).

Nine of the cars were total losses; the other six required major repairs. [ 6 ] The police investigation, helped in particular by photographs and videos, led to the identification and arrest of a number of rioters, including about 20 people who had damaged or destroyed several of the City’s patrol cars. The City decided to institute one civil action per vehicle, with the exception of one action relating to two vehicles that had been damaged by two individuals acting in concert. In each action, it grouped together all the identified rioters who had done damage to the vehicle or vehicles in question.

It sought to have the defendants in each case held solidarily liable for the whole of the damage done to the specific patrol car and to its equipment, regardless of the nature or seriousness of the wrongful act each of them had committed. [ 7 ] The rioters’ faults were varied and involved several different types of mischief against the vehicles, from kicking a door to arson. Some of them were committed at the start of the riot, while others were committed a few hours later. Except in a few isolated cases, the defendants acted spontaneously and independently and did not know one another. III. Judicial History A.

Court of Québec (2014 QCCQ 4902, 2014 QCCQ 4915, 2014 QCCQ 4916, 2014 QCCQ 4919 , 2014 QCCQ 4920 and 2014 QCCQ 4921 (Collectively “QCCQ”)) [ 8 ] Judge Coutlée heard all 10 of the City’s actions. In a first case, he dismissed the City’s claim for lack of evidence ( 2014 QCCQ 4922 ). In three others, he found that the defendants had committed a common fault and ordered them solidarily to pay an amount corresponding to the whole of the damage done to the patrol car or cars in question.

In two of those three cases, the defendants had acted together to, among other things, set fire to a vehicle ( 2014 QCCQ 4917 ; 2014 QCCQ 4918 ). In the third, the two defendants

had acted together to shatter the windows of two patrol cars (2014 QCCQ 4923). In all three cases, each of the defendants was alsoordered to pay punitive damages. [9] This appeal concerns the other six cases, in which the judge ordered each defendant to make reparation for thespecific damage caused by his own acts. However, the judge declined to find the defendants in each action solidarily liable, with theexception of two defendants who had acted together to set fire to a patrol car. He rejected the City’s argument that the defendants hadjointly taken

part in a wrongful act and were therefore solidarily liable under art. 1480 C.C.Q. He found that the evidence made itpossible to specifically identify each individual who had caused the various injuries at issue and that this barred the application of thatarticle.

He added that for there to be a common venture, there must be a clear intention to engage in one, whereas these cases involvedspontaneous acts by individuals who, for the most part, did not know one another and had not acted simultaneously. [10] The judge therefore identified the distinct damage caused by each fault in order to determine the fair compensationeach defendant would have to pay the City. In view of the seriousness of all the wrongful acts committed during the riot, he also orderedeach defendant to pay punitive damages. B.

Quebec Court of Appeal (2016 QCCA 1022) [11] The City appealed the six judgments of the Court of Québec in which the defendants had not all been foundsolidarily liable. In its appeal, the City limited the issue to the application of solidarity; fault and the quantification of the injury were notraised. In a unanimous decision, the Court of Appeal affirmed the trial court’s judgments. [12] The Court of Appeal began by reiterating that solidarity is not presumed and that it may be imposed in cases ofextracontractual fault only where this is provided for by law.

After reviewing the principles developed by the courts in the context of theCivil Code of Lower Canada (“C.C.L.C.” or “former Code”), the Court of Appeal concluded that [translation] “the courts imposedsolidarity only where a single injury had resulted from [separate] faults or where it was impossible to determine which fault had causedwhich injury or which portion of the injury” (para. 37 ). In the current Code, all the legislature did was to codify the existingcase law on extracontractual solidarity. [13] Articles 1480 and 1526 C.C.Q. apply only in cases involving a single injury.

The Court of Appeal stressed thatQuebec’s civil liability system does not have a punitive purpose. Both the wording of art. 1480 C.C.Q. and the spirit of the systemindicate that this

article imposes solidarity only where it is impossible to determine which fault caused the damage. [14] Because the evidence made it possible to link each fault to specific damage that represented only a portion of theCity’s injury, the Court of Appeal upheld the trial judge’s conclusion that the defendants should not be held solidarily liable for thewhole of the damage done to a given patrol car during the riot. It also dismissed the incidental appeals of certain defendants against theaward of punitive damages. IV. Issues [15] All things considered, the City’s appeal raises three questions: 1.

Are the respondents solidarily liable for the whole of the damage done to a patrol car during the riot because theyjointly took

part in a wrongful act within the meaning of art. 1480 C.C.Q.? 2. Did the respondents commit a common fault or contributory faults as a result of which they are solidarily liableunder art. 1526 C.C.Q.? 3. Are the respondents liable in solidum? [16] I note that the respondents did not file an incidental appeal to contest the award of punitive damages. Only the issueof solidarity was argued in this Court. V. Analysis [17] In Quebec civil law, solidarity is not presumed (art. 1525 para. 1 C.C.Q.; J.-L. Baudouin and P.-G. Jobin, Lesobligations (7th ed. 2013), by P.-G. Jobin and N. Vézina, at No. 612; M.

Cumyn, “Responsibility for Another’s Debt: Suretyship,Solidarity, and Imperfect Delegation” (2010), 55 McGill L.J. 211, at p. 215). As the Court of Appeal mentioned, in cases ofextracontractual fault, solidarity exists only where it is provided for by law. To succeed, the City must therefore show that therespondents’ faults come within the scope of art. 1480 or art. 1526 C.C.Q. In my view, they do not. Furthermore, the concept of liabilityin solidum does not apply in a situation like this one involving a number of faults that are all extracontractual.

The three questions mustaccordingly be answered in the negative. A.

Article 1480 C.C.Q. [18]

Article 1480 C.C.Q. reads as follows:[2] 1480. Where several persons have jointly taken

part in a wrongful act which has resulted in injury or have committedseparate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actuallycaused it, they are solidarily liable for reparation thereof. [19] Two conditions must be met for this

article to apply. First, it must be impossible to determine which person actuallycaused the injury. Second, there must have been either “join[t participation] in a wrongful act which has resulted in injury” or “separatefaults each of which may have caused the injury”. Neither of these conditions is met here. The solidary liability being claimed by theCity on this basis has not been established.

(1) Impossibility of Determining Who Committed the Fault That Caused the Injury [20]

Article 1480 C.C.Q. imposes solidarity in two specific situations: “[w]here several persons have jointly taken

part ina wrongful act which has resulted in injury” and where “several persons . . . have committed separate faults each of which may havecaused the injury”. [21] Both at trial and in the Court of Appeal, the City argued that the requirement, set out at the end of art. 1480 C.C.Q.,that it be impossible to determine which of the people involved caused the injury applies only in the second situation, that is, where thereare separate faults. In this Court, the City shifted the focus of its argument to the characterization of the respondents’ fault and the injuryit had suffered.

The two conditions that must be met for art. 1480 C.C.Q. to apply are cumulative, however. They cannot be disregarded.Therefore, even where two or more persons have jointly taken

part in a wrongful act, whatever it may have been, the

article will notapply if it is possible to determine who actually caused the injury. [22] Under the modern approach to statutory

interpretation, it is well established that “the words of

an Act are to be readin their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, andthe intention of Parliament” (Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 26, quoting Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, in turn quoting E. A. Driedger, Construction of Statutes(2nd ed. 1983), at p. 87).

In addition, the Quebec legislature has provided that statutes must generally receive such fair, large and liberalconstruction as will ensure that they are coherent, that their provisions have meaningful effect and that their objects are attained(Interpretation Act, CQLR, c. I-16, ss. 41 and 41.1). [23] The judges of the courts below held that the words “dans l’un ou l’autre cas” in the French version of art. 1480C.C.Q. (“in either case” in the English version) indicate that the

article imposes solidarity only where it is impossible to determine whocommitted the fault that caused the injury and that this is true in both of the situations in which this

article applies. I agree that this is theinterpretation that is most consistent with the words of the

article as well as with the scheme and object of the statute and the intention ofthe legislature. (

a) Wording of

Article 1480 C.C.Q. [24] The issue of

interpretation that arises with respect to the words of art. 1480 C.C.Q. is whether the phrase “dans l’unou l’autre cas” in the French version refers to both the concept of joint participation in a wrongful act (“fait collectif fautif”) and that ofseparate faults (“fautes distinctes”), or only to the concept of separate faults. [25] The first proposition reflects the most natural reading of the French version of the article. However, from agrammatical standpoint, the French wording may leave some room for doubt.

According to the Office québécois de la langue française,the phrase “l’un ou l’autre” indicates [translation] “a choice between two or more things” (Banque de dépannage linguistique, April 2018 (online)).[3] In theory, therefore, these words could relate only to the situation in which there are a number of separate faults. [26] As the Court of Appeal observed, however, the English version of art. 1480 C.C.Q. is unequivocal. The phrase “ineither case” conveys a choice between only two things, not between an indefinite number of things (Canadian Oxford Dictionary (2nd ed.2004), by K.

Barber, “either”; Gage Canadian Dictionary (rev. and exp. ed. 1997), by G. D. de Wolf et al., “either”; Guide to CanadianEnglish Usage (2nd ed. 2007), by M. Fee and J. McAlpine, “either . . . or, neither . . . nor”). The English version therefore excludes thepossibility that the requirement that it be impossible to identify the person who committed the fault that caused the injury applies only tothe situation in which there are separate faults, the number of which is indeterminate. [27] The English and French versions of Quebec statutes are equally authoritative (Charter of the French language,CQLR, c.

C-11, s. 7(3), consistently with s. 133 of the Constitution Act, 1867; see Doré v. Verdun (City), (SCC), [1997]2 S.C.R. 862, at p. 879). Here, the English version of art. 1480 C.C.Q. does not conflict with the French version; rather, it confirms themost natural reading of the French words. It follows that the only possible

interpretation is that the words “dans l’un ou l’autre cas” linkthat requirement to both the scenarios contemplated in art. 1480 C.C.Q., that is, both that of joint participation in a wrongful act and thatof separate faults. [28] This

interpretation is also the one that is most consistent with the scheme and object of the statute and with theintention of the legislature. (

b) Scheme and Object of the Statute and Intention of the Legislature [29] The general civil liability framework set out in art. 1457 C.C.Q. is based on the concept of fault. Unless an exceptionapplies, a person is accordingly liable to pay compensation only for damage caused by his or her own fault (J.-L. Baudouin,P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), at No. 1-161; P. Deschamps, “Faute personnelle”, in JurisClasseurQuébec — Collection droit civil — Obligations et responsabilité civile (loose-leaf), vol. 1, by P.-C.

Lafond, ed., fasc. 17, at para. 96). [30] It is consistent with the scheme of our civil liability system to interpret art. 1480 C.C.Q. such that, in every case,solidarity can be imposed only if it is impossible to identify the person who committed the fault that caused the injury.

To limit thisoutcome to cases involving separate faults, while excluding those involving joint participation in wrongful acts from the scope of thisprovision, would place the provision in conflict with the central role of causation in the scheme of extracontractual liability establishedby the Code. [31] It was in the name of fairness that the legislature chose not to leave a victim without recourse where two or morepersons have jointly taken

part in a wrongful act or have committed separate faults and it is impossible to determine who committed thefault that actually caused the injury (Baudouin, Deslauriers and Moore, at No. 1-725; L. Khoury, “Lien de causalité”, in JurisClasseurQuébec — Collection droit civil — Obligations et responsabilité civile (loose-leaf), vol. 1, by P.-C. Lafond, ed., fasc. 21, at para. 32). Asthe Minister of Justice mentioned, art. 1480 C.C.Q. resolves the problem of apportionment of liability among those who are at fault

(Ministère de la Justice, Commentaires du ministre de la Justice, vol. I, Le Code civil du Québec — Un mouvement de société (1993), atp. 906). He added that, in the cases contemplated in art. 1480 C.C.Q., the rule of solidarity applies [translation] “to protect the victim,because, in the circumstances, the victim is unable to establish a causal connection between the injury he or she suffered and the causalfault” (ibid.).

The legislature has thus ensured that the victim does not bear the consequences of evidentiary difficulties that can beattributed to the situation in which he or she has been placed by the persons who committed the faults (see also P. Deschamps, “Casd’exonération et partage de responsabilité en matière extracontractuelle”, in JurisClasseur Québec — Collection droit civil —Obligations et responsabilité civile (loose-leaf), vol. 1, by P.-C.

Lafond, ed., fasc. 22, at para. 15; Khoury, at para. 32). [32] Where it can be shown which fault caused which injury, however, there is no indication that the legislature had anyintention of deviating from the general principle of civil liability that a person is liable for reparation only of injuries caused by his or herown fault. [33] Indeed, in cases of extracontractual liability, it cannot be said that the requirement provided for in art. 1480 C.C.Q.that it be impossible to determine who committed the fault that caused the injury does not apply in situations involving joint participationin wrongful acts.

If that were the case, it would have been redundant for the legislature to seek by means of that

article to imposesolidarity on those who jointly take

part in such

an act. That is already provided for in art. 1526 C.C.Q., according to which “[t]heobligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation isextra-contractual.” [34] The purpose of art. 1480 C.C.Q. is instead to impose solidary liability on two or more persons for the whole of theinjury in situations in which, because of evidentiary difficulties, the application of the general principles of extracontractual liabilitywould not result in solidarity (see Simard v. Lavoie, (Que. Sup. Ct.), at paras. 8-10).

Article 1480 C.C.Q. thus has theeffect, where the conditions for its application are met, of shifting the burden of proof with respect to causation (St-Jean v. Mercier, 2002SCC 15, [2002] 1 S.C.R. 491, at para. 118; Khoury, at para. 32). In other words, the

article relieves the victim of the burden of provingwhich person actually caused an injury where it is impossible for him or her to do so. This is an adaptation of the burden of proof inrespect of causation — as a constituent element of civil liability — that is justified by necessity. [35] To some, the essence of art. 1480 C.C.Q. thus boils down to the creation of a sort of [translation] “presumption ofsolidarity” to the effect that each person who commits a fault is liable for the whole of the injury suffered (Larouche v. Simard, 2009QCCS 529, [2009] R.J.Q. 768, at para. 200; see also V.

Karim, Les obligations (4th ed. 2015), vol. 1, at para. 3456; Baudouin and Jobin,at No. 615). [36] One thing is clear, however. The liability provided for in art. 1480 C.C.Q. favours compensation of the victim. Thisobjective is readily understandable in cases in which fault is established but it is impossible to prove a causal connection between thefault and the injury suffered by the victim.

But it is hard to justify imposing liability for the whole of the injury where the evidenceshows that a given fault caused only part of the injury or where it would have been possible for the victim to adduce such evidence. [37] The legislative history supports this

interpretation of art. 1480 C.C.Q. At the time of the reform of the former Code,Quebec’s Civil Code Revision Office proposed an earlier version of the

article that did not include either the concept of jointparticipation in a wrongful act or the words “in either case” (Committee on the Law of Obligations, Report on Obligations (1975), atpp. 376-79). The addition of the concept of joint participation in a wrongful act coincided with the addition of the words “in either case”,which suggests that the legislature intended both situations contemplated in art. 1480 C.C.Q., that of joint participation in such

an act andthat of separate faults, to be subject to the requirement that it be impossible to identify the person who caused the injury. [38] In

summary, the wording of art. 1480 C.C.Q., the scheme and object of the statute, and the legislature’s intention allsuggest that this

article applies only where it is impossible to identify the person who committed the fault that caused the injury.Moreover, this

interpretation has been adopted by the commentators, by this Court in St-Jean, and by the Quebec courts (Code civil duQuébec: Annotations — Commentaires 2017-2018 (2nd ed. 2017), by B. Moore, ed., et al., at p. 1258; Baudouin and Jobin, at No. 617;F. Levesque, L’obligation in solidum en droit privé québécois (2010), at p. 235; Khoury, at para. 32; N. Vézina and L.

Langevin, “Lesmodalités de l’obligation”, in Collection de droit de l’École du Barreau du Québec 2017-2018, vol. 6, Obligations et contrats (2017),115, at p. 125 (footnote 84); St-Jean, at paras. 118-20; Lavoie, at paras. 9 and 15; Assurances générales des Caisses Desjardins inc. v.Morissette, [2005] R.R.A. 1273 (C.Q.), at paras. 37-39). No commentator or court has supported the

interpretation proposed by the Cityin the courts below. (

c) Application to the Instant Cases [39] In these cases, the trial judge found that the evidence made it possible to link each of the faults committed by therespondents to a specific injury. This finding is amply supported by the evidence that was considered in each case. It is therefore notappropriate to hold the respondents solidarily liable under art. 1480 C.C.Q. for the whole of the damage done to a particular patrol carduring the riot.

Article 1480 does not justify holding a defendant liable for damage that is known not to have been caused by his or herfault on the basis that the victim cannot identify the person who caused the damage in question. It is of course unfortunate that theperson who committed a fault sometimes cannot be found.

But in Quebec civil law, such a situation does not in itself justify imposingadditional liability on persons who committed separate faults that, according to the evidence accepted by the trier of fact, caused separateinjuries. [40] What the City does in its submissions is effectively to challenge the trial judge’s finding on the causal connectionbetween the various faults that were committed and the injury each of them caused.

In each of the cases, however, his thorough analysisof the evidence linked each respondent’s wrongful act to the injury it had directly caused, namely the partial destruction of the patrol carin question. The trial judge found no causal connection between those wrongful acts and the total destruction of the vehicle, the injuryfor which the City was seeking compensation.

In his analysis, he also made a point of stating that the fact that the rioters had encouragedone another had not contributed to or caused the aggregate injury complained of by the City. [41] Whether a causal connection exists is a question of fact that is not open to review by an appellate court unless a

palpable and overriding error has been made in answering it (Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 36;St-Jean, at paras. 104-5). The City has failed to establish such an error. When all is said and done, what it is asking is that we substituteour assessment of the evidence for that of the trial judge. Doing so would be consistent neither with the law in this regard nor with thisCourt’s role.

(2) Joint Participation in a Wrongful Act That Resulted in Injury [42] For art. 1480 C.C.Q. to apply, the City therefore had to establish that it was impossible to determine who hadcommitted the fault that caused the injury at issue, which was not the case here. It also had to show that the respondents had jointly takenpart in a wrongful act that resulted in the injury or had committed separate faults each of which may have caused that same injury. Onthis point, the City submits that the respondents jointly took

part in a wrongful act by taking

part in the riot or in the whole of the actsthat allegedly caused the total loss of each patrol car. [43] On the subject of this second condition for the application of art. 1480 C.C.Q., the trial judge concluded from hisassessment of the evidence that the facts did not support a finding of joint participation in a wrongful act. I wish to make it clear here thatthe trial judge did not merely hold that the riot as a whole did not constitute joint participation in a wrongful act.

His analysis alsofocused on the fact that the defendants did not have a common intention for the acts of vandalism they committed against each of thepatrol cars in question in the 10 cases before him. And this was in fact the very question he had to answer, given the City’s election tobring a separate action for each damaged patrol car. Here again, his determination on the issue of joint participation in a wrongful act isnot open to review absent a palpable and overriding error on his part.

A simple difference of opinion about the assessment of theevidence does not suffice. [44] On balance, the trial judge found that the riot was not the cause, but the occasion, of the injury. He added that thecommon venture alleged by the City had not been established given the absence of a clear intention or a plot to commit mischief. TheCity has not satisfied me that he erred in this finding. Its arguments reflect an incorrect analysis of the judicial precedents on the commonventure concept and a misunderstanding of the concept of joint participation in a wrongful act to which art. 1480 C.C.Q. now applies. (

a) Extracontractual Solidarity Under the Civil Code of Lower Canada and the “Common Venture” Concept [45] The current scheme of extracontractual solidarity set out in arts. 1480 and 1526 C.C.Q. is a codification of rulesdeveloped by the courts under the former Code (Baudouin, Deslauriers and Moore, at No. 1-680; Levesque, at p. 196; Court of Appeal’sreasons, at para. 38).

Article 1106 C.C.L.C. provided only that “[t]he obligation arising from the common offence or quasi-offence oftwo or more persons is joint and several”, but the courts nonetheless interpreted the

article broadly to include in its scope situations inwhich different persons had committed a number of separate offences or quasi-offences that had all contributed to the same injury(Martel v. Hôtel-Dieu St-Vallier, (CSC), [1969] S.C.R. 745; Grand Trunk Railway Co. of Canada v. McDonald (1918), (SCC), 57 S.C.R. 268). Thus, the courts went beyond common, contributory and simultaneous faults to extend theapplication of the

article to situations involving what they referred to as a [translation] “common venture” (Court of Appeal’s reasons, atparas. 29-35). [46] The effect of those decisions that expanded the scope of art. 1106 C.C.L.C. was that the “common venture” conceptcould also serve as a basis for the courts to find defendants jointly and severally liable. Such a finding was imperative in situationsinvolving extracontractual fault where, first, a court identified an intention, even a tacit one, to take

part in the wrongful “commonventure” and, second, the acts alleged against the defendants had caused a single injury that might be impossible to connect in whole or inpart with the fault of one defendant in particular. The City is relying heavily on those decisions, which in fact do not really assist it here.A brief review of the decisions in question helps clarify the actual scope of the principles developed in this regard under the formerscheme. [47] First, in D’Allaire v.

Trépanier, [1961] C.S. 619 (Que.), the Superior Court found that the fact that a child had[translation] “actively [taken] part” in a “risky common venture”, that of children throwing stones at one another, was sufficient to makeall the participants jointly and severally liable (p. 620) even though the evidence made it possible to identify the child who had thrownthe stone that actually broke the victim’s teeth. [48] Then, in Gagné v. Monzerolle, [1967] B.R. 899 (Que.) (summary), the Court of Appeal found that a car race was a[translation] “common enterprise” and held that the two drivers who had taken

part in it were jointly and severally liable for the death ofthe victim, with whom they had collided almost simultaneously. Rejecting one defendant’s argument that his car had merely grazed thevictim’s vehicle, the Court of Appeal concluded that “regardless . . . of whether the death was caused by the first or the second impact,[this defendant] is partly responsible” (p. 899). [49] Next, in Laxton v.

Sylvestre, [1972] C.S. 297 (Que.), aff’d [1975] C.A. 648 (Que.), the Superior Court characterizeda fight between two children who had been trying to grab hold of a needle as a [translation] “collective fault” (p. 299) and found that theywere jointly and severally liable even though it was known which child had been holding the needle at the time a third child was stabbedin the eye. [50] As well, in Massignani v. Veilleux, (QC CA), [1987] R.L. 247 (Que.), an argument between fourhunters resulted in two of them being shot either by the other two or by one of the other two.

The Court of Appeal concluded that,[translation] “even if it is assumed that only one of the two appellants fired the shot or two shots that injured the respondents, theappellants must be found to be jointly and severally liable . . . . They took

part in a common venture that was unlawful, extremelycareless and dangerous” (p. 253). [51] In Royale du Canada, Cie d’assurance v. Légaré, [1991] R.J.Q. 91, a case in which a fire started by two children hadaccidentally spread to a shopping centre, the Superior Court characterized [translation] “a common act” in which the children hadactively taken part as an “ill-fated venture” (p. 95). It accordingly found that they were jointly and severally liable. [52] Finally, in Dumont v. Desjardins, [1994] R.R.A. 459 (Que. Sup. Ct.), two children had been shooting at a third child

for fun with a pellet gun when the other child suffered an eye injury. Although the evidence showed which of the two children had firedthe shot, the judge in that case, too, stated that the [translation] “ill-fated venture” had been “a common act of the two children” (p. 470)and found that they were jointly and severally liable. [53] In each of the above cases, it was established that there was an intention, often tacit, to take

part in the wrongful“common venture”. Regardless of whether the context was that of children’s games (D’Allaire, Dumont), fights (Laxton, Massignani), acar race (Gagné) or the starting of a fire (Légaré), the courts found in effect that the defendants had had a common intention to jointlytake

part in the act that had caused the injury. In addition, the acts alleged against the defendants in those cases had all resulted in asingle, easily identifiable injury. [54] It is true that, in all the cases in question except Massignani, the evidence also showed on a balance of probabilitieswhich person had committed the specific act that caused the injury.

Yet this did not preclude the imposition of joint and several liability.However, as the Court of Appeal rightly observed in the cases at bar, the courts had under the former Code applied this “commonventure” concept to impose joint and several liability, even where the circumstances generally supported a finding of common fault orcontributory faults.

At the time, there was no need to clearly distinguish the concepts of common venture, common fault and contributory faults, because a single article, art. 1106 C.C.L.C., applied without distinction to all these possibilities.[4] It is therefore important toapproach the principles enunciated in those cases with caution, and not to read into the decisions something that was not said. (

b) Solidarity Under the Current Code for Jointly Taking

Part in a Wrongful Act (

i) Relationship Between

Article 1106 C.C.L.C. and Articles 1480 and 1526 C.C.Q. [55] Two articles of the current Code provide for solidary liability in cases of extracontractual fault. The first, art. 1480C.C.Q., concerns, in part, joint participation in wrongful acts. The common intention and single injury requirements remain, but for theprovision to apply, proof that it is impossible to determine who committed the fault that caused the injury is now required. [56] Unlike art. 1106 of the former Code, art. 1480 of the new Code now expressly provides that a court may not imposesolidary liability on persons who have jointly taken

part in a wrongful act unless it is impossible to determine which of them actuallycaused the injury. This requirement is not inherent in the concept of joint participation in a wrongful act, but in light of the article’swording, it must nonetheless now be met in order to justify a finding of solidary liability against persons who have jointly taken

part insuch

an act. [57] The second article, art. 1526 C.C.Q., concerns a common fault or contributory faults that, here again, caused a singleinjury (Baudouin, Deslauriers and Moore, at Nos. 1-720 to 1-722; Code civil du Québec: Annotations — Commentaires 2017-2018, atp. 1287; Lluelles and Moore, at No. 2578). It should be mentioned in this regard that art. 1526 C.C.Q. imposes solidarity on persons whohave committed a common fault or contributory faults even where the evidence shows which person committed the fault that actuallycaused the injury.

Thus, it is under art. 1526 C.C.Q., not under art. 1480 C.C.Q., that solidary liability can now be imposed on those whocommit common or contributory faults, for which the courts formerly sometimes used the expression “common venture”. Of the variouscases discussed in the preceding section, Massignani is therefore the only one that would likely be covered by art. 1480 C.C.Q.

Theothers (D’Allaire, Gagné, Laxton, Légaré and Dumont) would now most likely fall within the scope of art. 1526 C.C.Q. [58] It follows that, although the current legislative provisions governing extracontractual solidarity do codify thepre-existing case law, it would be wrong to say that all the decisions in which the term “common venture” was used would nowautomatically fall within the scope of art. 1480 C.C.Q. That term was formerly employed in a variety of situations that must now becharacterized in different ways. (ii) Case Law on Joint Participation in a Wrongful Act Under

Article 1480 C.C.Q. [59] That being said, as the trial judge pointed out, [translation] “there are not many cases on the subject of jointparticipation in a wrongful act” (QCCQ, at para. 16 ). Neither in its factum nor at the hearing did the City refer us to anydecision rendered since the current Code came into force that supports its argument characterizing the respondents’ faults as jointparticipation in a wrongful act. It is easy to understand why, given that the few cases decided under the current Code in which courtshave found persons who had jointly taken

part in wrongful acts to be solidarily liable in an extracontractual context are distinguishablefrom this appeal. Like the persons who had jointly taken

part in the wrongful acts at issue in the cases decided under the former Code,those who had done so in each of the cases decided under the current Code shared a common, albeit sometimes tacit, intention, a factorthat is sorely lacking in the instant cases. [60] For example, in Valois v. Giguère, 2006 QCCS 1272, the Superior Court relied on art. 1480 C.C.Q. to find threedefendants solidarily liable for injuries sustained by the plaintiff as a result of blows struck by one of them. The plaintiff was not able toidentify his assailant from among the three defendants, all of whom admitted taking

part in the same fight but denied striking the criticalblow (paras. 49, 57 and 59 ). [61] Similarly, in Bamboukian v. Karamanoukian, 2014 QCCA 2093, the Court of Appeal affirmed a decision in whichthe Superior Court had imposed solidary liability on the defendants, who had been involved in two assaults committed a few hours apartfor the purpose of settling a personal score.

Even though the assaults had been committed by different persons, it was impossible tospecifically link the injuries to one of the assaults, and the evidence showed that the two incidents were closely related (paras. 4-5). [62] Finally, in Roy v.

Privé, 2017 QCCS 986, the Superior Court held a defendant liable for the whole of the injuriescaused to the plaintiff, who had been attacked simultaneously by two people, each of whom had struck him (paras. 69-70 ). (iii) Common Intention Requirement [63] As the above decisions show, the existence of a common intention is required for the concept of joint participation in

a wrongful act in the context of the new scheme of art. 1480 C.C.Q., just as it was for the common venture concept in that of the formerscheme. This intention may be tacit, of course, but at the very least, the defendant must have been aware of the acts or omissions thatconstituted the wrongful act and must have intended to take

part in them. Like the other constituent elements of civil liability, a commonintention must be proved on a balance of probabilities (arts. 2803 and 2804 C.C.Q.). It can often be inferred — in accordance with therule governing presumptions of fact set out in art. 2849 C.C.Q. — from the very fact of taking

part in the impugned acts. [64] In determining whether there was a common intention, a court should avoid defining the wrongful act so broadlythat the common intention no longer bears any relation to reality. For example, in Assurances générales des Caisses Desjardins inc., theCourt of Québec declined to apply art. 1480 C.C.Q. and to find two defendants solidarily liable for an injury caused by arson. Thedefendants had robbed an apartment together, but one of them had on his own set fire to the building.

The Court of Québec found that the[translation] “wrongful act committed jointly by [the two defendants] was the robbery, not the fire” (para. 37). It accordingly declined toimpose solidary liability on the other defendant, who had “not take[n]

part in or consent[ed] to this specific wrongful act” (ibid.). [65] In this regard, the concept of joint participation in a wrongful act under art. 1480 C.C.Q. is comparable to the“concerted action” concept of the common law (see Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, atpara. 154). The British Columbia Supreme Court in fact considered the joint and several liability of rioters in a context very similar to theone at issue in this appeal in I.C.B.C. v. Stanley Cup Rioters, 2016 BCSC 1108, a recent case to which the City refers in its factum.

Thespontaneous riot in question in that case had also occurred following a playoff hockey game, this time in Vancouver, and had resulted inacts of vandalism against a number of cars. [66] In that case, the plaintiff insurance corporation asked that all the identified rioters be held jointly liable for the wholeof the damage done during the riot to all the vehicles insured by it. In the alternative, it asked that the rioters who had contributed to thedamage done to each individual vehicle be held jointly liable.

After finding that the first conclusion was too broad to be granted, theBritish Columbia Supreme Court accepted the second, but only where the facts showed that rioters had taken

part in a concerted action inrelation to a specific vehicle. Thus, where rioters had joined forces to flip a car over or had otherwise acted in concert with otherindividuals who were vandalizing a vehicle at the same time as them, the court held them jointly liable. [67] The trial judge who decided the cases at bar likewise imposed solidary liability on rioters who had acted together toset fire to an individual vehicle (2014 QCCQ 4921, at paras. 98-105 ; 2014 QCCQ 4917, at paras. 51-58 ; 2014 QCCQ4918, at paras. 59-68 ), or had shattered a vehicle’s windows (2014 QCCQ 4923, at paras. 58-62 ).

In each of thosecases, the defendants actually had a common intention to do damage to the patrol car in question. However, the trial judge found thoserioters solidarily liable under art. 1526 C.C.Q. — not art. 1480 C.C.Q. — because there was no uncertainty about the identities of thepersons who had committed the fault that caused the injury. (

c) Application of the Relevant Principles to the Instant Cases [68] As the trial judge concluded, the specific circumstances of the cases at issue in this appeal simply do not show thatthe respondents acted with a common intention, either express or tacit. There is no doubt that groups formed in the course of the riot. Butthe trial judge held in analyzing the evidence that this was not true where the respondents were concerned.

With a few exceptions, whichthe judge rightly dealt with differently, the respondents did not know and were never in contact with one another, and their acts werecommitted at different times during the riot without the knowledge of the other respondents. Here again, these are findings of fact thatare not open to review on appeal unless a palpable and overriding error was made in making them (Housen v. Nikolaisen, 2002 SCC 33,[2002] 2 S.C.R. 235, at para. 10). They are valid regardless of whether the wrongful act was participation in the riot or participation inthe total destruction of a vehicle.

From either standpoint, the faults committed by the respondents did not amount to joint participation ina wrongful act if the respondents had no common intention or their faults did not cause a single injury. [69] It is true that, as the Court of Appeal indicated in Bamboukian, the participants need not have acted simultaneouslyfor a court to find that they jointly took

part in a wrongful act. Be that as it may, the plaintiff must be able to prove, at the very least, theexistence of a tacit common intention. The City has not shown that the judge made a palpable and overriding error in finding that therioters who had contributed to the damage done to a given patrol car at various times during the riot did not have such an intention. [70] It follows that, for two compelling reasons, the respondents cannot be found solidarily liable under art. 1480 C.C.Q.First, it is possible to establish a causal connection between each of the respondents’ faults and a specific injury.

Second, the faults of therespondents involved in each of the actions instituted by the City did not constitute joint participation in a wrongful act given that therespondents in question did not have a common intention. Having said that, I wish to be clear that art. 1478 C.C.Q. and art. 328 of theCode of Civil Procedure, CQLR, c. C-25.01, have no impact on this analysis. They apply where, after a finding of solidarity has beenmade, liability must be apportioned among persons who caused a single injury. The trial judge and the Court of Appeal were right not totake them into account here. B.

Article 1526 C.C.Q. [71] The City further argues that, if the respondents cannot be found solidarily liable under art. 1480 C.C.Q., they can beunder art. 1526 C.C.Q.: 1526. The obligation to make reparation for injury caused to another through the fault of two or more persons is solidarywhere the obligation is extra-contractual. [72] For this

article to apply, the fault of two or more persons must have caused a single injury. This fault may be acommon fault or may consist of contributory faults. On this point, the City argues that the mutual encouragement on the rioters’ partcontributed to the aggregate injury it suffered, that is, the total destruction of the patrol cars. In the City’s opinion, the courts below erredin law in characterizing the injury, which must be assessed as a whole rather than being split into separate portions. [73] In my view, the City is mistaken.

Although its argument is purportedly one of an alleged error of law incharacterizing the injury, what it is really seeking is, here again, to have this Court revisit the trial judge’s findings of fact on the injury

actually caused by each of the respondents’ faults. In so doing, the City is also disregarding the trial judge’s findings of fact to the effectthat the respondents’ faults were separate. Given that the trial judge made no palpable and overriding error that would taint his findingthat a single injury did not result from the respondents’ separate faults, there is no reason to intervene.

(1) No Single Injury [74]

Article 1526 C.C.Q. provides for solidarity in the case of persons who have, by committing a common fault orcontributory faults, caused one and the same injury to another person (Baudouin, Deslauriers and Moore, at Nos. 1-720 to 1-722; Codecivil du Québec: Annotations — Commentaires 2017-2018, at p. 1287; Lluelles and Moore, at No. 2578). It is of the very essence ofextracontractual solidarity that the debtors be obligated to the creditor for “the same thing” (art. 1523 C.C.Q.; Lluelles and Moore, atNo. 2577; see also M. Tancelin, Des obligations en droit mixte du Québec (7th ed. 2009), at No. 1388).

The injury contemplated inart. 1526 C.C.Q. is therefore subject to the requirement that there be a single injury. [75] In the instant cases, the trial judge determined that there was no causal connection between each respondent’sparticipation in the riot and the total destruction of the patrol cars. Rather, he found that there were many distinct and identifiableinjuries, each caused by a fault that was just as distinct and identifiable, and that he linked to a particular rioter.

He assessed the precisedamage caused by the respondents’ faults and determined the amount of the award against each of them on that basis. In the case ofdefendants Hunter and Côté Béliveau, for example, he found that the video evidence made it possible to determine exactly what damagewas caused by each of their respective wrongful acts (2014 QCCQ 4916, at paras. 56-67 ).

This constitutes a clear distinctionbetween the case of those defendants and that of defendants Gauchier and Casimir, in which the only conclusion he could draw from thepolice officer’s report and testimony was that the latter were indistinctly responsible for the whole of the damage done to the patrol cars(2014 QCCQ 4923, at paras. 55-62).

The fact that there was a single injury caused by the common fault of these defendants thus justifiedtheir being held solidarily liable. [76] At the risk of repeating myself, the question whether there is a causal connection between a fault and damage is oneof fact, and the City has not identified a palpable and overriding error made by the trial judge in this regard.

This Court recently notedthat in such cases, “given its position at the second level of appeal, this Court’s role is not to reassess the findings of fact of a judge at thetrial level that an appellate court has not questioned: ‘. . . the principle of non-intervention “is all the stronger in the face of concurrentfindings of both courts below” . . .’” (Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26, [2017] 1 S.C.R.478, at para. 51, quoting St-Jean, at para. 45, in turn quoting Ontario (Attorney General) v. Bear Island Foundation, (SCC), [1991] 2 S.C.R. 570, at p. 574).

The trial judge did not find a sufficient causal connection that gave rise to liability, that is, a“logical, direct and immediate” connection, between each of the faults and the whole of the damage done to a given vehicle (Baudouin,Deslauriers and Moore, at No. 1-683; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc.(Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 50; Hinse v. Canada (Attorney General), 2015SCC 35, [2015] 2 S.C.R. 621, at para. 132).

At most, the respondents’ faults contributed to the context in which the patrol cars weresubsequently destroyed. The cause of the damage must be distinguished from the circumstances or the occasion of the damage(Baudouin, Deslauriers and Moore, at No. 1-687; Dallaire v. Paul-Émile Martel Inc., (SCC), [1989] 2 S.C.R. 419, atp. 427; Montréal (Ville) v. Tarquini, (QC CA), [2001] R.J.Q. 1405 (C.A.), at p. 1427).

(2) Trial Judge’s Analysis on the Issue of Punitive Damages [77] Nevertheless, the City argues that the trial judge found that the respondents’ acts had caused the whole of the injuryfor which it seeks to be compensated. In support of this argument, it focuses on one sentence from the judge’s discussion on the issue ofpunitive damages. In the course of that discussion, the judge noted that the events of April 21, 2008 were [translation] “[a] spontaneousreaction fuelled by shouts of encouragement that prodded each new person to do something worse” (2014 QCCQ 4921, at para. 83(emphasis added)).

He went on to strongly condemn the widespread destruction that had occurred. The City concludes from this that theencouragement in itself constituted a fault that had, in addition to each rioter’s specific wrongful acts, contributed to the aggregatedamage done to the patrol cars. [78] With respect, I find that the City is disregarding part of what the trial judge said, although his reasons are in factclear on this point.

In his discussion regarding causation, the judge expressly stated that [translation] “[i]n this case, there is no causalconnection between participation in the riot and the damage done to the police vehicles” (QCCQ, at para. 45). Where there is no legallysufficient causal connection between

an act, even a wrongful one, and damage, the act does not give rise to liability under art. 1457C.C.Q. This means that participation in the riot, despite being blameworthy, cannot in itself be viewed as a contributory fault giving riseto liability for the whole of the damage done during the riot. [79] Moreover, the context of the judge’s discussion on punitive damages was quite different from that of his discussionon causation. Under art. 1621 C.C.Q., he had to assess punitive damages so as to fulfill their preventive purpose, and he had to do so inlight of all the relevant circumstances.

In these cases, the circumstances in question included the unlawful conduct being denounced, thegratuitous vandalism that had been committed and the general disapproval of such acts. The judge certainly considered all thesecircumstances in assessing the punitive damages, which are not in issue in this appeal.

Yet he nevertheless held that there was no causal connection between participation in the riot and the aggregate damage done to the patrol cars.[5] [80] On this point, I note that, while it is true that a fault that is not causally connected to the damage in question cannotground an obligation to make reparation for the injury, it can nonetheless form the basis for an award of punitive damages. Punitivedamages are not subject to the compensatory logic of the civil liability system.

Nor does it really matter if a trial judge characterizes thefault on which an award of compensatory damages is based differently than the conduct that grounds an award of punitive damages. Inde Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, this Court put an end to a longstanding judicial difference ofopinion and held that punitive damages are autonomous in nature (paras. 40-46; Baudouin, Deslauriers and Moore, No. 1-388; S.Grammond, “Un nouveau départ pour les dommages-intérêts punitifs” (2012), 42 R.G.D. 105, at pp. 109-10; see also Richard v.

TimeInc., 2012 SCC 8, [2012] 1 S.C.R. 265, at paras. 144-47). Punitive damages can thus be awarded in relation to a fault even ifcompensatory damages have not been awarded in respect of it.

(3) Respondents’ Separate Faults [81] Finally, the trial judge was right in law in characterizing the respondents’ faults as separate faults rather than ascommon or contributory faults. For it to be possible to characterize faults as a “common fault” or “contributory faults”, and for them tolead to the application of art. 1526 C.C.Q., they must have caused or

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