2020 QCCA 1157, 2020 QCCA 1157

O'Brien c. M.H. 2020 QCCA 1157 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028000-180 (540-17-011676-151) DATE: September 11, 2020 CORAM: THE HONOURABLE JEAN BOUCHARD, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A. CRAIG O’BRIEN APPELLANT – Defendant v. M. H.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] The Appellant has appealed the judgment of the Superior Court, District of Laval (the Honourable Pierre Journet), rendered on November 20, 2018, ordering him to pay the Respondent $112,931.05 in pecuniary damages, $125,000 in non-pecuniary damages and $75,000 in punitive damages, for a total of $312, 931.05, as well as legal costs; [ 2 ] For the reasons of Hamilton, J.A., with which Bouchard and Beaupré, JJ.A. concur, THE COURT: [ 3 ] GRANTS the appeal in part and SUBSTITUTES an award of $99,942.45 in pecuniary damages in paragraph 52 of the judgment, $75,000 in non-pecuniary damages in paragraph 53 and $25,000 in punitive damages in paragraph 54, for a total of $199,942.45; [ 4 ] MAINTAINS the award of costs in favour of the Respondent in first instance, but given the mitigated outcome of the appeal, ORDERS each party to pay its own costs on the appeal.

JEAN BOUCHARD, J.A. STEPHEN W. HAMILTON, J.A. MICHEL BEAUPRÉ, J.A. Mtre Ronald Achim For Appellant Mtre Daniel Romano KALMAN SAMUELS, Q.C. & ASSOCIATES INC. For Respondent Date of hearing: May 27, 2020 REASONS OF HAMILTON, J.A.

[ 5 ] This is a case of domestic abuse. The parties were in a relationship and lived together for seven years. The Appellant has admitted to physically abusing the Respondent during the relationship. He attributes his actions to his excessive alcohol consumption and use of drugs. The Respondent’s civil suit is limited to the events that occurred between September 18 and 21, 2012. She claims that the Appellant confined her in their apartment during that time and assaulted her. The Appellant admits that he assaulted the Respondent during these three days, but he denies her allegation regarding the confinement.

On September 21, the Respondent left the apartment and filed a police complaint against the Appellant. He was arrested the same day. On November 17, 2014, he pleaded guilty to counts of forcible confinement, assault causing bodily harm, and assault while using, carrying or threatening to use a weapon. He was sentenced to eight months imprisonment. [ 6 ] The Respondent alleges that she suffered various injuries and psychological trauma as a result of these events. She was off work for the period from September 21, 2012 to January 11, 2016, when she returned to work on a full-time basis.

Indemnisation des victimes d’actes criminels (“ IVAC ”) awarded her an income replacement indemnity equal to 90% of her weighted net income during that period. She filed her action for damages against the Appellant on September 15, 2015, claiming loss of income and other pecuniary losses, damages for psychological trauma and punitive damages. [ 7 ] The trial judge concluded that the Appellant’s fault and the causal link between that fault and the damages suffered by the Respondent were clear. The judge then turned to an assessment of damages.

He accepted the evidence presented by the Respondent and awarded her the full amounts requested save for a reduction in the non-pecuniary damages.

As a result, the amounts awarded were as follows: Loss of salary $75,650.50 Loss of dental benefits $2,987.00 Loss to the pension plan fund $15,763.38 Credit card reimbursement $17,530.67 Non-pecuniary damages $125,000.00 Punitive damages $75,000.00 TOTAL $311,931.55 [1] *** [ 8 ] The Appellant raises several issues on appeal. [ 9 ] First, he argues that the trial judge erred in law in assessing the credibility of witnesses and the evidence, as well as in accepting the allegation of forcible confinement made by the Respondent. [ 10 ] It is true that the judge’s reasons are very brief on the elements of fault and causation.

And it is also true that the judgment does not offer a detailed analysis of the contradictory accounts given by the parties regarding what happened between September 18 and September 21, 2012. The trial judge found it sufficient to say that he does not give any credibility to the Appellant's testimony. [2] He also appears to give much weight to the Appellant’s guilty plea in the criminal proceedings, notwithstanding the Appellant's explanation as to why he pleaded guilty to the charge of forcible confinement.

The judge chose to fully rely on the Respondent’s account of the events to support his finding of fault. [ 11 ] I do not think that we should intervene on these matters. First, the Appellant admits to having assaulted the Respondent. This is sufficient to establish fault, even without the forcible confinement.

Further, it was open to the judge to prefer the testimony of the Respondent over that of the Appellant, and absent proof of a palpable and overriding error in doing so, this Court’s scope of review does not allow for it to intervene. [3] Finally, the Appellant bears the burden of proving an error in the judge’s assessment of the evidence and it is thus his responsibility to present in his brief the necessary record for a complete appraisal of the issue on appeal, which he failed to do. [4] [ 12 ] This ground of appeal should be dismissed. [ 13 ] Second, the Appellant submits that the judge erred because he failed to consider the Respondent’s obligation to mitigate her damages, her acceptance of the risk, and her contributory negligence.

This argument does not merit any discussion. The Appellant is responsible for his actions, and he cannot escape that liability by arguing that she knew that he was violent or that she failed to run away when she had the chance. [ 14 ] The more difficult issues relate to the calculation of the damages. 1. Pecuniary damages [ 15 ] There are four elements to the pecuniary damages: loss of salary, loss of dental benefits, loss of pension contributions and payment of the Visa bill. The Appellant does not challenge the claim for loss of dental benefits in the amount of $2,987, but he challenges the other three.

Loss of salary [ 16 ] The judge awarded the Respondent the difference between her anticipated gross income from the date of the assault in 2012 until she returned to work full-time in 2016 and the income replacement indemnity that she received from IVAC. The Appellant asserts

that the amounts deducted as indemnities from IVAC were not proven at trial. This contention is unfounded. The Respondent produced a series of

Avis de paiement issued by the Fonds de la santé et de la sécutié au travail . While they do not cover every payment, they show examples of payments for each year. This proof is sufficient to establish the amounts received from IVAC. [ 17 ] There is, however, one mistake in the calculation of the loss of salary which the Court should correct. In the table produced by the Respondent at trial, it is alleged that she received $35,596.16 from IVAC in 2014.

But the evidence indicates that she received $1,420.16 for the first two week period of the year and then $1,424 every two weeks thereafter, for a total of $37,020.16. It appears that one payment of $1,424 was omitted from her calculation. The award of $75,650.50 must therefore be reduced by $1,424 to $74,225.50.

Loss of pension contributions [ 18 ] The judge awarded the lost pension contributions claimed by the Respondent, in the total amount of $15,763.38. [ 19 ] However, a review of the Respondent’s claim shows that she is claiming both the employee contributions that she did not make as well as the employer contributions that her employer did not make. She cannot claim the employee contributions that she did not make, because those amounts would have been deducted from her salary.

As a result, she has not suffered any loss – she is being reimbursed her full salary under “loss of salary”, so the amounts that would have been deducted and put in the pension plan are in her bank account instead. Arguably, if the rate of return was higher in the pension plan than in her bank account, she might have been entitled to claim that lost profit, but she did not make that claim and provided no evidence that would allow the Court to calculate any such loss. [ 20 ] As a result, she is only entitled to claim the lost employer contributions.

Based on the evidence that she filed, the employer continued to make both the employee and the employer contributions to her pension plan for a period of 41 weeks after she stopped working and then made redeemable contributions for a further period of 63 weeks. With respect to the redeemable contributions, the Respondent will be required to reimburse the employee contribution portion, but that does not constitute a loss: the amounts will be in her pension fund instead of her bank account.

The employer only stopped making the employer contributions on September 21, 2014 and resumed them when she returned to work on January 8, 2016. Based on the evidence filed, the lost employer contributions are $6,017.25.

Credit card [ 21 ] The Respondent alleges that all of the charges on her credit card were made by the Appellant, and she claims the balance on her credit card as of October 24, 2012 in the amount of $12,226.39 with one further charge of $598.97 and interest in the amount of $4,705.31, for a total of $17,530.67. [ 22 ] The Appellant admitted that he had used the card on a number of occasions, but claims that he reimbursed part of the debt before September 2012.

However, he failed to provide any proof of the alleged payments. [ 23 ] The judge dismissed the Appellant’s argument and condemned him to pay the full amount claimed. [ 24 ] The only evidence before the Court is one credit card statement and very limited testimony. There is no basis for the Court to intervene. [ 25 ] There is, however, one mistake that the Court can correct. The Respondent adds to the balance of $12,226.39 on October 24, 2012 an additional charge of $598.97 incurred on September 20, 2012.

As is apparent from the statement of account filed as an exhibit, that amount is included in the balance that she is claiming. The additional charge and a proportional amount of interest ($220) should be deducted from the claim. Conclusion on the pecuniary damages [ 26 ] As a result of the corrections set out above, the award of pecuniary damages should be reduced from $112,931.05 (as stated in the judgment) to $99,942.45. [5] 2. Non-pecuniary damages [ 27 ] The Appellant is also contesting the non-pecuniary damages.

He argues that the amount of $125,000 awarded to the Respondent is unreasonable and excessive. [ 28 ] The evidence presented at trial shows that the harm inflicted by the Appellant has caused her significant psychological trauma which prevented her from working for almost three years. [ 29 ] She testified that, from the night of September 18 to her escape on September 21, 2012, the Appellant beat her, subjected her to verbal and emotional abuse, and deprived her of food. The assault left her with bruises and lacerations on several parts of her body, as well as a fracture of one finger that required surgery.

In addition to her physical injuries, these events have caused her further damages, namely: humiliation, constant fear, isolation, physical pain, fear of dying, difficulty sleeping and nightmares, lack of self-esteem, concentration disturbances and flashbacks of episodes of violence. She was dependent on her cousin for several months during her recovery. [ 30 ] At the time of the trial, the Respondent had returned to her full-time job and had regained her autonomy in her daily life. However, she still felt the psychological consequences of the Appellant's actions.

The judge concluded based on the expert evidence presented to him that she still suffers from post-traumatic stress and that she will possibly continue to suffer for a long time. [ 31 ] The judge held that the Respondent was entitled to compensation for these non-pecuniary damages. He assessed the amount as

follows:[6] [34] L’arrêt de Montigny c. Brossard, 2010 CSC 51 reconnaît que la détermination du montant de dommages non pécuniaires estdifficile à établir et comporte une part d’impondérable. [35] Le Tribunal note que, selon le témoignage de Madame, le défendeur avait une emprise psychologique sur elle, lui interdisantdes choses ou l’obligeant à en faire. Elle le craignait de façon constante. [36] Ces appréhensions se sont concrétisées par les événements du 19 au 21 septembre 2012. [37] L’ensemble des agressions violentes durant ces jours ont laissé un stress post-traumatique qui l’affecte toujours et possiblementpour une grande

partie de sa vie. [38] Elle craint pour sa sécurité où qu’elle soit.

Elle craint monsieur et tente toujours de se prémunir d’une agression éventuelle decet homme qui a admis au Tribunal avoir été violent au point d’avoir un trou de mémoire sur ses agressions. [39] Bref, Monsieur a contrôlé madame, a assouvi ses instincts guerriers sur elle, l’a menacé de représailles durant la vie communeet l’a blessé lors d’une agression sauvage et impardonnable. [40] L’épisode du 19 au 21 septembre ne laisse aucun doute sur la séquestration de madame durant ces jours et sur les agressionsgraves qu’elle a subies. [41] Monsieur n’a exprimé aucun remords, plaidant plutôt que si Madame le craignait, elle n’avait qu’à fuir les lieux. [42] Le Tribunal constate le déni de monsieur sur les événements de septembre quant à leur gravité et leur conséquence. [43] L’ensemble de la preuve justifie une compensation pour dommages que le Tribunal établit à 125 000 $. [32] The judgment does not give much insight into how the judge arrived at the figure of $125,000. [33] Moreover, there are two errors.

First, paragraphs 41 and 42 suggest that the judge considered the absence of remorse of theAppellant in the assessment of the non-pecuniary damages. This constitutes an error of law. The determination of non-pecuniary damagesmust be based on the damages suffered by the Respondent, and not on the Appellant's moral culpability.[7] [34] Further, the judge is supposed to compare the case at hand to other analogous cases in which non-pecuniary damages wereawarded. [35] In Stations de la Vallée de St-Sauveur inc. v.

M.A., Kasirer, J.A. (as he then was), explained that the courts generally evaluatenon-pecuniary damages by combining the conceptual, personal and functional approaches, to allow for comparisons between the seriousness of the injuries while providing the victim with a fair and personalized compensation.[8] The Supreme Court has sinceconfirmed this approach:[9] [105] In Quebec, the quantum of non-pecuniary damages is generally assessed by combining a conceptual approach, a personalapproach, and a functional approach: St-Ferdinand, at paras. 72-73, 75 and 77; Gauthier v.

Beaumont, (SCC), [1998] 2S.C.R. 3, at para. 101. The conceptual approach measures loss “based on an appreciation of the objective seriousness of the injury”:Stations de la Vallée de Saint-Sauveur inc. v. M.A., 2010 QCCA 1509, [2010] R.J.Q. 1872, at para. 83, per Kasirer J.A. The personalapproach “seeks to evaluate, from a subjective point of view, the pain and inconvenience resulting from the injuries suffered by thevictim”: St-Ferdinand, at para. 75, citing A. Wéry, “L’évaluation judiciaire des dommages non pécuniaires résultant de blessurescorporelles: du pragmatisme de l’arbitraire?”, [1986] R.R.A. 355.

The functional approach seeks to calculate the cost of measures thatcould provide solace to the victim: Andrews, at p. 262. These approaches “apply jointly, and thereby encourage a personalizedevaluation” of non-pecuniary damages: St-Ferdinand, at para. 80. [106] In addition to applying these approaches, courts assessing non-pecuniary damages should compare the case at hand to otheranalogous cases in which non-pecuniary damages were awarded: Stations de la Vallée, at para. 83.

They must attempt to treat “like casesalike” (ibid.), by giving roughly similar compensation to victims whose injuries are alike when assessed from the point of view of thecombined approaches discussed above. […] [Emphasis added] [36] The trial judgment contains no indication that such a comparison was made. [37] On appeal, the Respondent submits judgments that she says are similar to hers and where the damages awarded were in thesame range. However, these judgments do not provide appropriate comparables.

They all relate to repeated sexual assaults onchildren.[10] The victim’s age has a significant impact on her ability to cope with the consequences of the assault. Another importantvariable is the time it took to denounce the abuser and seek help.

Child victims often wait years before they speak out and thus bear thebrunt of the harm caused by the assault for years without receiving the needed therapeutic treatment.[11] As a result, any comparisonwith a physical assault on an adult that was immediately denounced is flawed. [38] The acts committed by the Appellant are very serious, as are the consequences suffered by the Respondent. In addition, thecontext of this case, namely domestic violence, has a very significant impact on the victim's condition.

Indeed, both the Respondent andpsychologist Nate Fuks testified about the consequences that flow directly from this situation. Although the Respondent continues to dealwith psychological and physical suffering, her situation is now better because of the efforts she put in her treatment and rebuilding herlife. As I have already noted, the Respondent has since returned to her full-time job. She also completed psychological treatments forseveral years and it seems that the nightmares, flashbacks and insomnia have become less frequent over time.

[ 39 ] The non-pecuniary damages awarded in cases of physical assaults in domestic relationships vary significantly, but there are very few cases where the amount reached $100,000. [12] Given the specific circumstances of this case, I believe that an amount of $75,000 is adequate to compensate the Respondent's non-pecuniary damages. 3. Punitive damages [ 40 ] Finally, the Appellant contests the trial judge’s award of $75,000 in punitive damages. He submits that the assault was not intentional since he was under the influence of alcohol such that punitive damages were not available.

He also alleges that the judge did not consider his ability to pay in assessing the amount and thereby committed a revisable error. [ 41 ] The punitive damages were awarded under

Section 49 of the Quebec Charter of Human Rights and Freedoms [13] on the basis of the Appellant’s “unlawful and intentional interference” with the Respondent’s “right to life, and to personal security, inviolability and freedom” under

Section 1 of the Charter . [ 42 ] The threshold of “unlawful and intentional” is met “when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause.” [14] [ 43 ] The evidence of the Appellant’s drunkenness is insufficient to support his argument that he lacked the intention to cause the consequences of his acts and had no knowledge of those consequences.

The only evidence was his testimony and it was contradictory: he denied having any memory of the events because of his state of drunkenness, while affirming in the same breath that the Respondent’s injuries were caused by a scuffle and her subsequent fall. The trial judge rejected his testimony. [15] In any event, it seems impossible that the Appellant could not know the consequences of his actions when he repeatedly beat and terrorized the Respondent over a period of three days. [16] [ 44 ] However, the Appellant’s argument on the quantum of punitive damages is well founded.

In his assessment of the quantum, the judge failed to consider the following factors: (1) the reparations for which the Appellant is already liable under the other heads of compensation; as well as (2) his patrimonial situation. Punitive damages “may not exceed what is sufficient to fulfil their preventive purpose”. [17] The judge condemned the Appellant to pay almost $230,000 in compensatory damages, before adding $75,000 in punitive damages.

Moreover, the judge assumed, in the absence of any evidence, that the Appellant’s parents will pay the damages awarded by the judgment because they had paid for his legal fees. As a result, the judge committed an error by condemning the Appellant to pay an amount of punitive damages that he has no means to pay. [ 45 ] In light of the above, I propose to reduce the punitive damages awarded to $25,000.

I believe that this amount is sufficient to show the Court’s condemnation of the Appellant’s behaviour, while at the same time taking into consideration his limited financial means and his obligation to pay almost $175,000 in compensatory damages, as well as his criminal conviction for the same acts. [18] [ 46 ] As a result, I would grant the appeal in part and substitute an award for $99,942.45 in pecuniary damages, $75,000 in non- pecuniary damages and $25,000 in punitive damages, for a total of $199,942.45.

I would maintain the award of costs in favour of the Respondent in first instance, but given the mitigated outcome of the appeal, I would not award any costs on the appeal. STEPHEN W. HAMILTON, J.A.