2011 QCCA 535, 2011 QCCA 535

Landry c. Audet 2011 QCCA 535 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-09-006776-097 (200-05-012152-992) DATE: March 21, 2011 CORAM: THE HONOURABLE PAUL VÉZINA, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. PIERRE-ÉRIC LANDRY APPELLANT – respondent v.

ALAIN AUDET RESPONDENT- applicant JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Quebec (the Honourable Madam Justice Suzanne Hardy-Lemieux), rendered on July 14, 2009, which condemned him to pay more than $500,000 in punitive and compensatory damages for defamation. [ 2 ] For the reasons of Vézina J.A., with which Giroux and Bouchard JJ.A. agree, the Court : [ 3 ] ALLOWS the appeal in part, with costs; [ 4 ] SETS ASIDE the judgment, striking conclusions 306, 307, 308, and 310 and replacing them with the following: CONDEMNS the defendant Landry to pay the plaintiff Audet the amount of $191,828 plus interest and indemnity as of the date of service. [ 5 ] AFFIRMS the other conclusions of the judgment.

PAUL VÉZINA, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. Mtre Céline Gervais Bélanger, Sauvé For the appellant Mtre Roger Pothier B.C.F., s.e.n.c.r.l. For the respondent Date of hearing: September 21, 2010

REASONS OF VÉZINA, J.A. [ 6 ] In 1985, the respondent was practising as a maxillofacial surgeon in the Saguenay region. He operated on a young girl for a malocclusion problem involving her upper jawbone. [ 7 ] In 1993, the patient, whose problem had persisted, consulted a second surgeon, a colleague of the respondent in the same region, who informed her that there had never been an operation on her upper jawbone. He operated on her in 1995. [ 8 ] In 1994, she sued the respondent for malpractice. Her lawyer retained the appellant's services for an expert report.

The appellant, a specialist in the same field, knew the other two doctors very well and knew that they were relatively friendly. [ 9 ] In his defence, the respondent reiterated that he had operated on the patient's upper jawbone in 1985. [ 10 ] In 1998, the appellant submitted his report to the patient’s attorney, who communicated it to the respondent and filed it in the Court record.

He agreed with the opinion of the second surgeon and confirmed that there had been no surgery on the upper jawbone during the operation in 1985. [ 11 ] Moreover – and herein lies the source of the dispute – the appellant went so far as to use the word "fraud" to describe the respondent's conduct. He wrote: [ translation ] ...

There is in fact an accumulation of evidence demonstrating that the methods used were insufficient, indeed, inadequate, and that there is strong reason to presume fraud with regard to the surgery ostensibly performed on the upper jawbone. ... [ 12 ] In 1999, after having vainly urged the appellant to withdraw his remarks, the respondent sued him for defamation. On the day of the trial, his claim stood at $800,000. [1] [ 13 ] In January 2002, the patient's action was heard on its merits before the Superior Court.

The appellant, who had not modified his report, defended his opinion as an expert. [ 14 ] Barely a month later, the action was dismissed in a judgment that was not appealed. Babin J. thoroughly considered the matter and rejected the appellant's expert report without reservation. He wrote: [ translation ] [132] As noted above, given the importance that must be assigned to medical files, the Court finds it really rather surprising that Dr.

Landry would categorically state that the defendant had not performed any surgery on the patient’s jawbone in 1985, when this surgery is described in minute detail in the operation record. ... [162] Indeed, we shall return to these essential elements reported by Dr. Forget [2] which, in the view of the undersigned, demonstrate beyond the shadow of a doubt that surgery was indeed performed on the plaintiff’s jawbone by the plaintiff. ... [182] Dr.

Forget's testimony in itself constitutes nearly irrefutable evidence that the operation was performed. [ 15 ] The judge even dismissed the patient's action without costs against her because her action resulted from the combined errors of the second surgeon and the appellant: [ translation ] [384] Given the medical imbroglio into which the plaintiff was drawn as soon as [the second surgeon] surprised her by telling her that she had not been operated on her jawbone, an allegation that was later supported by Dr.

Landry, the Court finds that in the circumstances it would be inappropriate and unsuitable to compel the plaintiff to bear all the judicial costs of this case. [385] She is not a doctor, she is not rich, and the medical advice she was given was her basis for undertaking and continuing these proceedings. [ 16 ] An additional fact complicates the question of the causal link between the defamation and the resulting prejudice suffered by the respondent. [ 17 ] In 1991, the respondent hurt his back while shovelling.

Consequently unable to remain in a standing position for longer than thirty minutes at a time, he gave up surgery. In 1998, he was working only two to three days a week, and his practice focused on dental extractions and the insertion of dental implants. [ 18 ] The trial judge (the "judge") ruled that there was defamation causing serious prejudice to the respondent. [ 19 ] The debate on appeal concerns primarily the quantum of damages awarded, which amounted to more than $500,000.

[ 20 ] In his grounds of appeal, the appellant argues that two errors were made, which resulted in an increase in the assessment of damages. [ 21 ] First, the appellant's fault does not have the magnitude the judge attributed to it. She found that the defamation continued for ten years: [ translation ] [232] ... the Court finds that the damage done to Dr. Audet's reputation by Dr.

Landry began in September of 1998 and continued until April of 2009. [ 22 ] Second, there was double compensation as a result of the classification used by the judge to break down the damage suffered and assess the amount of compensation under each category. [ 23 ] In my view, with respect, the appeal should succeed in part and the damages awarded should be considerably reduced. The judgment under appeal [ 24 ] The judge found that there was defamation and serious injury to the respondent's reputation as soon as the report was released and filed in 1998: [ translation ] [2] When Dr.

Audet became aware of the content of Landry's expert report in September of 1998, he was completely distressed. Simply put, his life and his family's life were turned upside down. [3] The content of the expert report greatly affected his self-esteem and his ability to function, among other things. ... [42] When Dr. Audet became aware of it, he was profoundly distressed. Simply put, his life and his family's life were turned upside down. ... [146] Upon analysis of the evidence, the Court finds that Dr.

Landry committed a fault that gave rise to his liability when he knowingly, and in breach of the cardinal rules governing experts, used the expression "presumption of fraud" in his expert report when referring to Dr. Audet, knowing full well the impact these words could have on Dr. Audet's reputation. [ 25 ] The damage increased in 1999 when the media publicized the contents of the report and the appellant became an unwilling news item on a radio show. The judge wrote the following: [ translation ] [4] On September 13, 1999, Dr. Audet brought this action in the judicial district of Quebec.

He based it on the defamation and injury to his reputation caused by Dr. Landry’s statements in his expert report. [5] The media in Chicoutimi, as that town was then known, broadcast news of the lawsuit, using Dr. Landry's terms to describe Dr. Audet. [6] From then on, people in their social network ignored them. His professional practice was greatly affected. ... [46] By 1998 and 1999, however, Dr. Audet had not been performing oral and maxillofacial surgery for a few years because of his serious back problems.

His practice was focused on dental extractions and the insertion of dental implants and relied essentially on patient referrals by dentists in Saguenay and Lac Saint-Jean. [47] Once the present action became a subject of media attention, his professional life was turned completely upside down: dentists no longer referred their patients to him, and patients came to get their files or simply cancelled their appointments. [48] The social life of Dr. Audet and Ms. St-Martin, his spouse, was ruined.

Although they were once very active and involved in the social and philanthropic life of Chicoutimi, their telephone no longer rang. There were no more invitations from their groups of friends in Chicoutimi or Quebec City, whom they had known since Dr. Audet's time in university. If there was ever a chance meeting, their friends acted very coldly toward them. [ 26 ] At that point, the family moved to Quebec City and the respondent changed careers.

He took his exams at the Collège des médecins and began practising family medicine. [ 27 ] The judge was also of the opinion that the appellant's fault was ongoing in 2002, during the trial before Babin J. She wrote: [ translation ] [229] At the hearing [of the patient against the respondent], Dr. Landry, as we know, reiterated these statements and even made some

additional ones. ... [230] Following evidence filed by Dr. Audet and Dr. Forget in defence, Dr. Landry again tried to convince Babin J., who stated the following: [213] When he returned to testify after having heard Dr. Martin, Dr. Audet, and Dr. Forget, Dr. Landry tried hard to convince the undersigned that their nearly irrefutable statements, and particularly those of Dr. Forget, had no basis. ... [ 28 ] She was also of the view that the defamation was ongoing in 2009, during the hearing before her: [ translation ] [7] Dr.

Landry continues to defend his opinion despite the judgment of February 11, 2002, rendered by Jacques Babin J., who did not accept it. He denies that he damaged Dr. Audet's reputation. He maintains, rather, that he did his work as an expert. He adds that Dr. Audet was the reason the report was disseminated, as its content became known to the public only after he instituted the action. ... [231] Despite the judgment rendered by Babin J. on February 11, 2002, Dr. Landry appeared at the hearing persuaded that his opinion was still correct, even if Babin J. had not , as he put it, accepted it.

Initially at the hearing he wanted to fight "tooth and nail" to defend his opinion, even though that is not the goal of this hearing. He attempted nevertheless to convince the Court that he was correct and that he had used the terms for which he is faulted advisedly.... [232] Based on this attitude, the Court finds that the damage to Dr. Audet's reputation by Dr. Landry began in September of 1998 and continued until April of 2009. [ 29 ] She found that [ translation ] "this injury has been continuing for ten years now".

Regarding punitive damages, she wrote: [ translation ] [254] At the very least, the Court finds that the carelessness and gross negligence displayed by Dr. Landry for more than ten years while being aware of the probable consequences on Dr. Audet of using these terms was an intentional and unlawful interference within the meaning of

section 49 of the Charter . [ 30 ] She again faulted the appellant for challenging the merits of the defamation suit. Regarding extrajudicial fees, she stated: [ translation ] [282] The Court is of the view that, as of the moment the judgment of Babin J. was filed and was not appealed, that is, as of March 11, 2002, Dr. Landry should have taken it into account and modified his defence. Logically speaking, in light of the judgment [of Babin J.], Dr. Landry should not have contested anything beyond the quantum of damages claimed.

Such a contestation is valid, as this judgment shows. [ 31 ] In the eyes of the judge, the appellant's defence demonstrates a lack of empathy for the victim and constitutes a fault. Rejecting one of the arguments of the appellant that was perhaps a bit simplistic but not particularly malicious, the trial judge wrote: [ translation ] [196] Dr. Landry also maintains that Dr. Audet's career change caused him no damage.

On the contrary, he alleges it was beneficial to him because it opened the door to the Collège des médecins, thereby permitting him to broaden his area of expertise... [197] In the view of the Court, this argument is a clear illustration of the attitude of Dr. Landry, who not only denies all liability with respect to Dr. Audet but also does not want to acknowledge or face the magnitude of the damage he has caused him . [Emphasis of the trial judge.] [ 32 ] In fact, the judge began her

summary of the appellant's defence with a criticism: [ translation ] [7] Dr. Landry continues to defend his opinion despite the judgment of February 11, 2002, rendered by Jacques Babin J., who did not accept it. ... [ 33 ] The judge rejected the argument that the damage was caused by the media. [ translation ] [147] To avoid liability, Dr. Landry maintains that the media attention given the expert report was the element that caused the greatest damage to Dr. Audet.

In these circumstances, he adds that since he did not cause this media attention, he should not incur any liability. [148] The Court cannot accept this argument. [ 34 ] The judge then dealt with [ translation ] "The causal link between the fault and the damages claimed".

[ 35 ] She rejected the argument of absence of cause put forward by the appellant, referring to the two psychiatrists heard as experts for the prosecution and the defence: [ translation ] [155] [The] psychiatric expert retained by Dr. Landry admits that, in Dr. Audet’s view, Dr. Landry's report was the "triggering element". At the hearing, he stated that the report showed the emergence of depression. He remarked that, after September of 1998, Dr.

Audet's behaviour changed, particularly with respect to his family relationships, his self-esteem, and his loss of self-confidence. [156] [The] psychiatric expert whose services were retained by Dr. Audet admits that Dr. Landry's report was the "triggering event" for Dr. Audet. From that moment on, according to [this expert], Dr. Audet felt both profoundly hurt by the accusation of fraud that Dr. Landry levelled against him and betrayed by Dr. Landry as a friend. In the view of [this expert], the trauma that upended Dr. Audet's life took place over two phases: the first upon reading Dr.

Landry's report, and the second when it became a subject of media attention. According to [this expert], however, there is no doubt that the filing of the Landry report was, it is worth repeating, the element that triggered Dr. Audet's health problems. [ 36 ] The judge then addressed [ translation ] "The determination of the quantum of damages".

She broke them down into the following categories, assigning an amount to each one: [ translation ] 6.1 Pecuniary damages - $32,000 for rental of an office that became pointless; - $70,000 for "injury to the psychological health" of the respondent; 6.2 Bodily damages - $150,000 for "the physical, psychological, family, social, and professional consequences...on the life" of the respondent; 6.3 Moral damages - $100,000 for "moral prejudice"; 6.4 Punitive damages - $75,000 in view of the "objective of punishment and deterrence, and the misuse of the role of expert and of his mandate before the Court". 6.5 The application for payment of a part of the extrajudicial fees and disbursements incurred. - 50% of the respondent's extrajudicial fees and disbursements for "abuse of the right to litigate solely in regard to the denial of civil liability..." despite the judgment of Babin J. in 2002. * * * [ 37 ] The appellant raises four grounds of appeal.

The first and principal ground concerns the lack of causal link. The three others concern the quantum of compensatory damages, punitive damages, and extrajudicial fees. [ 38 ] With regard to the first ground, it is first necessary to determine the appellant's fault, that is, when and how the defamation took place. That process leads me to set aside certain criticisms made in the trial judgment and to limit the period of the injury to less than [ translation ] "ten years". Analysis A- Fault and causal link [ 39 ] There was defamation.

The use of the word [ translation ] "fraud", an offensive and hurtful term, was pointless and unjustified. * * * [ 40 ] It is also certain that the defamation caused injury to the respondent.

By arguing that the damage is not due to his report [ translation ] "alone" and that a [ translation ] "full" causal link between the report an the respondent's situation is doubtful, the appellant recognizes this implicitly. * * * [ 41 ] The appellant maintains, as he did at trial, that [ translation ] "the defamation in the report was not caused by the appellant" but by the media after the respondent brought the defamation suit in 1999. [ 42 ] Admittedly, the dissemination of this information by the media aggravated the significant damage already caused by the release and filing of the report the previous year.

[ 43 ] The judge rejected the argument, however. A victim of defamation has the right to go before a court to obtain justice. She wrote: [ translation ] [149] Admittedly, the content of an expert report is generally confidential. As we know, however, this does not permit its author to make defamatory statements with respect to any of the parties to the dispute with impunity. Moreover, if we were to follow the reasoning of Dr. Landry, a party who finds that this report has damaged his reputation could not seek redress from the Court. [150] The Court is of the view that Dr.

Audet, like any individual who considers himself to be the victim of defamation, has the undeniable right to exercise the appropriate judicial remedy. ... [ 44 ] Of course a defamed person has the right to sue. The delicate issue is whether the exercise of this right will reduce the damage or contribute to it.

Despite the risk that an action will temporarily aggravate the damage, the objective of clearing one's name and re- establishing one's honour through a judgment often prevails. [ 45 ] I would add to the the reasons of the trial judge by noting that the public dissemination of the report was inevitable in the more or less long term. [ 46 ] In principle, court records are public; anyone may consult the documents filed therein. The very act of filing them entails the possibility that they will be disseminated. [ 47 ] And in this case, there is more.

The appellant had a chance to withdraw the report and modify it before the media got hold of it. It would have been sufficient to reformulate the hurtful sentence by striking the infamous term "fraud" to reduce the defamation and the negative impact of the report. [ 48 ] The respondent gave him that chance before bringing the action in defamation. He sent him the report prepared by his own expert, informing him of a possible action: [ translation ] [Our] expert finds that the surgery described in the operating record used by Dr. Audet in December 1985 did indeed take place.

Therefore, the very serious allegations of fraud made by Dr. Pierre-Éric Landry have no material basis. [ 49 ] By leaving his report unchanged in the record, the appellant caused the subsequent injury due to the media attention it received. It was only a question of time before the document emerged into public consciousness.

Sooner or later, someone in the media would have gotten wind of it; the infotainment media would never have passed up an opportunity to shine their spotlight on this situation involving connotations of fraud and local notables. [ 50 ] The judge was right in rejecting the appellant's argument in this respect and in finding him wholly liable for the filing of the report in 1998 and its dissemination in 1999. [ 51 ] But we must consider whether the same may be said regarding the trial before Babin J. in January 2002, two and a half years later, where the appellant testified and tried to have his opinion prevail. [ 52 ] As we have seen, the judge was of the view that the defamation was ongoing at that time: [ translation ] [237] ...

Not only was this injury committed in writing in 1998, but it was repeated twice verbally at the hearing held in 2002 before Babin J. [ 53 ] In my view, with respect, I cannot share her opinion that the trial in 2002 and the role played by the appellant at that time caused injury to the respondent's reputation. [ 54 ] The trial took place in the District of Chicoutimi, after the respondent had been permanently established in Quebec City for nearly two years.

The infotainment media had lost all interest in the case, or at least, nothing was reported. [ 55 ] It is true that the appellant testified and defended the opinion he had expressed in his report. But the power balance between the parties had shifted. The appellant was being sued for defamation and he was now on the defensive. He had informed his insurers and was authorized to intervene personally at the trial to protect his rights and was assured that [ translation ] "the testimony he renders in the present dispute will in no way cause him prejudice". [ 56 ] The appellant was not the only witness.

The expert for the respondent also testified and demolished the appellant's argument. [ 57 ] Finally and most importantly, the judgment rendered the following month set the record straight once and for all. The respondent's professionalism during the operation in 1985 was recognized. In contrast, that of the appellant as an expert took a beating. [ 58 ] Moreover, even if the appellant had withdrawn from the trial and refrained from testifying, it was too late; the damage was done. The judge began her judgment with a description of the damage. From 1998 and 1999, the effect was devastating.

The respondent lost his self-confidence. His relationship with his children became distant. His depression worsened. His social network fell apart. Patients were no longer referred to him. [ 59 ] The judge returned to this subject later on:

[ translation ] [225] The Court finds that the evidence reveals that Dr. Audet's reputation and integrity were indispensable to a successful professional practice. As we know, dentists in Saguenay–Lac-Saint-Jean referred their patients to him for tooth extractions or dental implants. As of September 1998, his ability to perform his work was affected. By 1999, it was, for all intents and purposes, obliterated. Dr. Audet had to leave Chicoutimi and change careers. [226] Dr. Forget's uncontradicted testimony demonstrates just how serious the damage to Dr. Audet's reputation was, even within the Association québécoise des chirurgiens buccaux et maxillo-faciaux. Dr. Audet no longer took

part in their professional meetings and most of his colleagues avoided him or were very cold to him. Put simply, he was no longer welcome. [ 60 ] In

summary, the trial in 2002, far from constituting an injury to the respondent's reputation, had on the contrary a significant compensatory effect. The appellant's psychiatric expert explains it well. [ translation ] As for the depression, which, according to the notes of [the respondent's physician], began to manifest itself eight to ten months before June of 1999, Dr. Audet tends to associate this anxio-depressive pathology strictly with the social and legal situation in which he found himself, particularly following the report by Dr. Landry.

Although it should be recognized that the content of this document had a possible effect on Dr. Audet and was therefore an element contributing to the development of the symptoms of anxious depression, the subsequent evolution of his state featuring mood fluctuations and his reactions to various mediation attempts – in short, the condition he has had since that time – cannot be associated with those events alone. This is especially true since, in February of 2002, Dr. Audet was for all intents and purposes cleared of any blame and Dr.

Landry was even criticized by Babin J. as to the credibility of his expert opinion, but no noticeable change took place in Dr. Audet's condition. In other words, when the alleged cause of Dr. Audet's depression was removed, we could expect him to improve significantly. ... That is not what happened. [ 61 ] We shall now consider the trial that took place seven years later. [ 62 ] In 2009, the respondent was practising family medicine in Quebec. He opened a clinic and hired staff, investing $250,000 to do so. He appeared as an expert before various courts and tribunals.

It is worth noting in passing that he claims no loss of income, as the defamation in 1998 and 1999 had no negative effect on his income level. [ 63 ] The judge ruled that the respondent was still suffering injury to his reputation at the time of the hearing over which she presided. She wrote: [ translation ] [231] Despite the judgment rendered on February 11, 2002, by Babin J., Dr. Landry appeared at the hearing persuaded that his opinion was still correct, even if Babin J. did not, as he put it, accept it.

Initially at the hearing, he wanted to fight "tooth and nail" to defend his opinion even though that is not the goal of this hearing. He attempted nevertheless to convince the Court that he was correct and that he used the terms for which he is faulted advisedly.... [232] Based on this attitude, the Court finds that the damage to Dr. Audet's reputation by Dr. Landry began in September of 1998 and continued until April of 2009. ... [237] In conclusion, the Court finds that the damage to Dr. Audet's reputation caused by Dr.

Landry is extremely serious because: - ... - This injury has been continuing for ten years now; [ 64 ] Judicial rulings, of course, compel compliance; that does not mean, however, that parties must fall to their knees and renounce their opinions. [ 65 ] At trial, the value of the appellant's opinion was not the issue, since Babin J. had ruled that it had no basis. The dispute centred on the appellant's process in preparing the report and how he arrived at committing his error.

This evidence was necessary, given the claim for punitive damages. [ 66 ] While attempting to justify his error, the appellant nevertheless admitted it and expressed some regret, as the following excerpts from his deposition indicate. [ translation ] - "fraud" is the word that he regrets having written more than anything else in his life; - I am sorry I made a mistake; - Not only am I sad, but I am very upset – certainly less than Alain and probably much less than his spouse Francine – by everything that has occurred as a result of this report" ; - Today, I am not here to defend my report, I am here to defend my integrity and I am here to defend the logic that was behind my report. ... because I absolutely do not contest the judgment of Babin J. ... it's a report about which I thought and for which I had a procedure, a logic, which was not accepted but which was not gratuitous and certainly not malicious or done to undermine the

professional, personal or social circumstances of an individual's life; - I cannot give you the same answer because there was a ruling and it was found that not only my opinion but also my way of seeing things or of obtaining this evidence was not consistent with reality; - Babin J.'s analysis was much broader than mine, I must agree ... recognize that he examined the issue much more completely than I did and he observed and he had a different way of pondering the arguments which for me, at the time, were very, very convincing.

But today, I have absolutely no reason to doubt Babin J. or his judgment, and even less the presumption to argue that it was erroneous; - I accept it, and it has led me quite simply to look at why I, quote, erred, unquote; - Babin's judgment has led me to reflect. I cannot erase or eliminate or deny what I wrote.

Babin J.'s judgment may, in fact, show me that I made an error in assessing reality. - I am compelled to see that my conclusions were false, as Babin J. has shown and taught me; - And that's what Babin J.'s judgment showed me: that regardless of my objectivity or the objectivity I thought I had, I did not have everything that was required to properly assess the facts. I assessed the facts, but not all of the facts, and I did not give fair value even to facts, even though they were proved. [ 67 ] Moreover, the judge did not allude to the non-negligible beneficial effect of her own judgment.

If there was any doubt remaining after Babin J.'s judgment, which had already restored the respondent's reputation, hers got rid of it for good.

We have already seen cases where similar judgments clearing the injured party of any charge awarded no more than a symbolic penny or franc in damages. [ 68 ] In short, the appellant's fault is first defaming the respondent in 1998 and then failing to withdraw his comments, either before the devastating media storm in 1999 or afterwards, until the judgment of Babin J. in 2002. [ 69 ] Certainly it is not impossible for repercussions of the damage to be felt after the first injury and for after-effects to remain, but the trials in 2002 and 2009 had no causal link with the damage requiring compensation.

B- Causal link and other causes of the damage [ 70 ] The judge attributes the respondent's exclusion from his social network to the dissemination of the report. The appellant claims to have proved the opposite. He writes: [ translation ] The trial judge attributed the respondent's exclusion from his social network entirely to the filing of the appellant's report.

She ignored all the evidence presented by the appellant, however, through the testimony of these friends, who explained the [other] reasons for the respondent's exclusion to the Court. [ 71 ] This issue concerns the weight assigned to the testimony and to the evidence as a whole. Several facts may have played a role in the exclusion, but the judge ruled that the dissemination of the report was the cause. She accepted the respondent's version, deeming it to be perfectly credible.

There is no [ translation ] "palpable error" in this finding. [ 72 ] For the same reason, the Court owes deference with regard to the contradictions revealed by the appellant between the respondent's earlier deposition and the one made at trial. The judge was satisfied with the respondent's explanations excusing them: [ translation ] [207] In many ways, Dr. Landry's lawyers attempted to catch Dr. Audet in a contradiction and thereby affect his credibility with regard to the two examinations on discovery and the examination during the hearing. [208] Dr.

Audet explained that, in some cases, there may have been certain involuntary contradictions on his part. At the time of the examinations, he was on medication, one of the ingredients of which made him indifferent to the questions he was asked and to the consequences of his answers. [209] Before the hearing, with his doctor’s assent, he stopped taking the drug that caused this side effect. In his view, this explains the fact that he was more precise in his answers at the hearing and that he might have contradicted some of his earlier answers. [210] The Court has no reason to doubt this explanation from Dr. Audet.

On the contrary, it is easy to understand that Dr. Audet's testimony was emotional when he was required to describe the nightmare he had been experiencing since 1998, to relive it, and to describe the consequences that have been a part of his daily life ever since. [ 73 ] A more delicate issue is [ translation ] "the conclusion of psychiatric experts on both sides that the incapacity experienced by the respondent was not due solely to the appellant's report".

Hence the appellant's argument that only the damage "which is an immediate and direct consequence of the debtor's default" (article 1607 C.C.Q. ). [ 74 ] The judge did not reject the experts' submissions regarding the many causes of the respondent's problems. Rather, she found that the report and the media attention it received constituted the [ translation ] "triggering element". [ translation ]

[167] In the view of [the expert for the appellant], the Landry report alone cannot account for the extent of the symptoms affecting Dr.Audet. According to him, a number of stressors were present, causing his depression to become chronic. [168] As for [the expert for the respondent], he attributes the 10% APD primarily to the Landry report while recognizing that variousfactors external to the report might have prevented some improvement to his state. [75] The expert for the respondent stated, [translation] "I am far from denying that there is a single cause" of the problem.

Theexpert for the appellant provides a longer explanation. [translation] Finally, the record contains several allusions to the fact that Dr. Audet was dealing with stressors in his professional life, namely, hiswife's depression, the illness of one of his sons, certain difficulties with the insurance company paying his wage loss insurance – in short,the content of Dr. Landry's expert report was certainly not the sole cause or even the main cause of the appearance of clinical signs ofdepression in Dr. Audet that have undoubtedly continued for a few years now, although without his incapacitation.

On the contrary, as someone capable of dealing with the demands of two years of residency and of passing very demanding exams, hehas shown himself to be very resilient in general, and indeed all the more so for man in his fifties. [76] The judge was nevertheless of the view that the [translation] "triggering element" caused all of the damage, even though therespondent had been experiencing problems since before 1998. She based herself on the "thin skull" principle.

She wrote: [translation] [183] In La responabilité civile, authors Jean-Louis Baudouin and Patrice Deslauriers state the following principle: [translation] 1-391 – Situation of the victim – The principle of restitutio in integrum also requires that wrongdoers take their victims as theyfind them at the time the damage is caused. This rule, known in the common law as the "thin skull rule", simply means that thewrongdoer must assume the risks intrinsic to the capacity and personality of the victim.

Consequences for wrongdoers can varydramatically, depending on whether the injured party is a millionaire or an unemployed person. In addition, the consequences of thewrongful act may be more significant on someone whose health is particularly fragile than on an ordinary person. If the wrongfulact has done nothing more than aggravate a prior unfavourable situation, however, the wrongdoer is liable only for the increasedprejudice he or she directly caused.

Finally, since the prejudice is assessed at the time of judgment, some changes in the victim'ssituation between the time of the accident and that of judgment may be either to the advantage or to the disadvantage of the defendant. 62 (Emphasis added). _______ 62 J.L. Baudouin & P.

Deslauriers, La responsabilité civile, Volume I, 7th ed. (Cowasnville, Qc.: Yvon Blais, 2007) at 419–42. [184] This recognition of the application in the civil law of the "thin skull rule" is also explained in detail by Professor Gardner, whostates: [translation] Only proof of a disability predating the accident or of an inevitable evolution of a pre-existing pathological state can constitute anexception to the application of this rule, [translation] "on the condition of placing on the defendant the burden of proving the pre-existing condition or the inevitability of its occurrence even in the absence of the prejudicial act". 63 (Emphasis in the original) ______ 63 Daniel Gardner, L'évaluation du préjudice corporel, 2d ed., (Cowansville, Qc.: Yvon Blais, 2002) at 54, no. 48; See, to the sameeffect, Lacombe v.

Succession d'April, (QC CS), REJB 2002-33475 (Sup. Ct.) at paras 75–88, inclusively. [77] In this case there was a pre-existing condition caused by his back pain since his accident in 1991. In such a case, according toProfessor Gardner, as quoted by the judge above, the difficulty is to [translation] "distinguish between the pre-existing condition and theaggravation".[3] [78] The judge found that all of the damage to the respondent's mental integrity is the result of the report and not of his pre-existing back trouble. She wrote: [translation] [189] Admittedly, since 1995, Dr.

Audet has not been practising maxillofacial surgery as such because of serious back problems thatprevent him from standing upright in a stationary position for more than thirty minutes at a time. Dr. Audet has accepted this situation,however, and oriented his career toward tooth extraction and dental implants, basing his practice on references from other dentists. Heworks two to three days a week. [190] Based on an analysis of the preponderance of the evidence, the Court finds that, before September of 1998, there was no factor thatcredibly did injury to Dr. Audet's mental integrity or his reputation.

His social, family, and professional lives made him happy. [79] It should be noted, however, that the respondent consulted a psychologist in June of 2002, after the Babin judgment in his

favour, at which point he attributed his depression to his back problems, which had been going on for ten years. The psychologist wrote the following: [ translation ] I met Mr. Audet on June 13, 2002, in the offices of the Clinique de psychologie cognitive [Cognitive Psychology Clinic] at 1000 Chemin Ste-Foy, Suite 300, in Quebec City. The reason for the consultation as reported by Mr. Audet was his difficulty adapting to the limitations caused by serious back problems that had begun about ten years prior. He told me about the resulting depression he had been experiencing since then, which was still ongoing.

He said he felt great distress because he could no longer work as much as before, as he realized he needed to "perform" to have good self-esteem. He said that he had the impression that he was living only [ translation ] "half a life" and that this was unacceptable to him. He also feared the negative judgments of others. During the interview, Mr. Audet described himself as a person who is able to endure and shoulder a great deal of stress and tension over a long period of time.

He said that he now understands that it has been difficult for him to accept the reduction in his capacity and that this difficulty, because it has remained unacknowledged and unresolved, negatively affects his mood. Mr. Audet says that he came to consult today to obtain help to adapt to his condition, to regain a sense of personal balance, and reduce the symptoms of depression that are still present. [ 80 ] To the judge, there was no aggravation of a pre-existing condition.

It is consistent with her description of the appellant's fault: [ translation ] "an injury [that] has been continuing for ten years now". [ 81 ] On the contrary, if we consider that the effects of the defamation ceased with the judgment of Babin J., we see that the appellant consulted a cognitive psychology therapist a few months later, attributing his problem to his 1991 accident, not to any other cause. [ 82 ] The judge, in accordance with her finding of an injury continuing for ten years, reproached the appellant for contesting his liability by raising a defence to the respondent's action, thereby once again aggravating the damage: [ translation ] [267] In the view of the Court, during this trial he has continued to defend the indefensible with respect to fault and causality.

In so doing, he has obliged Dr. Audet to endure a trial of eight and a half days and to incur the costs thereof.... This conduct is particularly offensive, as it demonstrates a lack of sensitivity and basic respect toward Dr. Audet on the part of an expert on the one hand and a lack of respect toward the Court on the other. ... [282] The Court is of the view that, as of the moment the judgment of Babin J. was filed and was not appealed, that is, as of March 11, 2002, Dr. Landry should have taken it into account and modified his defence. Logically speaking, in light of the judgment of Babin J., Dr.

Landry should not have contested anything beyond the quantum of damages claimed. Such a contestation is valid, as this judgment shows. [ 83 ] With respect, I do not share this perspective. [ 84 ] Dividing a matter into liability and quantum of damages is easy when the causal link is not contested. Consider, for example, car accidents in the past. The cause and effect link between the accident and the injuries was obvious.

What remained was the determination of whether the accident was the fault of the defendant and, if so, the assessment of damages. [ 85 ] Here, however, the entire dispute concerned the causal link. Was the damage caused by the filing of the report or the media attention given to it? And what of the respondent's pre-existing partial disability? Did the defamation cause the damage or did it aggravate it? Did the trials in 2002 and 2009 contribute to the damage? [ 86 ] What should the respondent have admitted? Fault and the causal link.

The judge herself rejected one head of damage, the breakup of the couple, because of the lack of a causal link: [ translation ] [201] Regarding the breakdown of the couple’s relationship, certainly the preponderance of the evidence reveals that the couple was harmonious and happy together until September 1998. It also shows that their relationship began to deteriorate as of this moment, culminating in 2006 when they separated.

The Court must consider whether the Landry report was the only cause of this breakup. [202] The Court cannot say because several external factors may have intervened to lead to this unhappy result. Therefore, the Court cannot award damages on this head. [ 87 ] Admitting only the fault in order to limit the trial to the causal link and the assessment of damages would have changed nothing in the dispute. The use of the word "fraud" and its strongly pejorative connotations were never contested.

The causal link and the assessment of damages were interrelated and constituted the entire subject matter of the dispute. [ 88 ] Attributing a broad scope to the respondent's fault and thus to the causal effect of this fault led the judge to assess the damages too generously. C- Classification of damages [ 89 ] The Civil Code provides us with a classification of injury: "...whether it be bodily, moral or material in nature". [4] These new notions have upset the traditional meaning of these terms. As Professor Gardner writes: [5]

[ translation ] Henceforth, it is the source of the claim that is important, not the characterization to be given to the consequences of the prejudice suffered. With the new text, care must be taken not to use these notions, which originated in scholarly commentary, in their usual, commonly accepted meaning, since this no longer conveys the legal reality in Quebec .

To say that [ translation ] "bodily injury – injury to physical integrity – leads to moral and physical prejudice" 48 may be true according to the commonly accepted meaning of the term, but it helps to perpetuate confusion regarding the use of the legislative provisions that define a distinct place for bodily prejudice in the Civil Code . [Emphasis in original.] _____ 48 A. Popovici, "De l’impact de la Charte des droits et libertés de la personne sur le droit de la responsabilité civile : un mariage raté?" in Conférences Meredith 1998-1999, 49 at 73. J.-L. Beaudoin & P.

Deslauriers, No. 314 at 316, also perceive no issue if "the consequences of [a bodily injury] are designated as physical prejudice or moral prejudice or pecuniary loss or non-pecuniary loss". [ 90 ] Moreover, the prejudice as a whole may be otherwise classified according to whether the consequences are pecuniary or non- pecuniary. [ 91 ] The judge borrowed from the two orders of classification, which led to the classification of damages as pecuniary (6.1), bodily (6.2), and moral (6.3). This hybrid classification resulted in an overlap of damages awarded.

To avoid such a problem, it is preferable to follow Professor Gardner's suggestion, reproduced further on in this judgment. [ 92 ] The similarity of certain paragraphs of the judgment illustrates the problem. [ 93 ] Discussing [ translation ] "pecuniary damages", the judge wrote: [ translation ] [171] In the view of the Court, the mental health issues of Dr. Audet will inevitably have repercussions on his ability to earn a living. The Court notes, for example, that he did not pass the admissions exam for the Collège des médecins in order to exercise that profession until his third and final possible attempt.

He suffers greatly from memory and concentration issues. He has lower physical stamina at work and less confidence in his ability to perform his job. ... [173] The preponderance of evidence shows that Dr. Audet no longer has the same mental stamina to work today. He no longer takes pleasure in his cordial relations with his patients, which were once spontaneous but now require him to make a great deal of effort. [174] Dr. Audet still has concentration and information retention problems. He has put off a number of projects to a later date. Generally speaking, the Court has no doubt that Dr.

Audet has made superhuman efforts to re-orient his career and to succeed. The psychological injury caused by the Landry report still has effects. ... [176] Taking into account the injury to Dr. Audet's mental health, which requires him to make enormous efforts to work, the Court finds that an amount of $70,000 is appropriate. Pecuniary losses related to the rental of his office and the payment of property taxes should also be added thereto. The pecuniary damages awarded against Dr.

Landry therefore total $101,828.25, [ 94 ] Moving on to bodily damages, the judge returned to the aspect of mental health: [ translation ] [217] In these circumstances, and taking into consideration the physical, psychological, family, social, and professional consequences of the report... [ 95 ] Finally, concerning moral damages, the judge returned once again to the respondent's health problems and his capacity to work: [ translation ] [237] ... - The person concerned [the respondent] is losing confidence in himself, in his ability to work.

He is losing his self-esteem and is no longer able to play his role as father to the couple’s four children; - Dr. Audet's health problems are far from negligible; - Dr. Audet is losing the self-esteem and confidence required to carry out his professional practice. [ 96 ] The assessment of the compensation awarded should be reviewed, bearing in mind a more limited period of defamation that was compensated in part by the judgment of Babin J. and the judgment under appeal. [ 97 ] As Professor Gardner suggests: [6] [ translation ]

Defamation Another relatively easy case is that of a defamed person who experiences a nervous breakdown following the slander: can that personclaim bodily injury?

Applying the test of the first injury, which determines the characterization of any consequence resulting directlyfrom the injury, the problem is easily resolved: moral injury (injury to my dignity or reputation) cannot become bodily injury over time;it will always remain a moral injury that may entail pecuniary and non-pecuniary consequences, which obviously may give rise tocompensation. [Emphasis in original.] D- Pecuniary and non-pecuniary consequences [98] Pecuniary consequences are limited to $32,000 for the Chicoutimi office that became useless after the respondent moved toQuebec City. [99] The judge awarded an additional $70,000, referring to the respondent's [translation] "loss of earning capacity", while notingthat [translation] "he claims [no amount] for the loss of past and future earnings". [100] The respondent did not lose any income.

He reoriented his career in another region and, happily, his income is at least equal towhat he was making before. [101] As for the concept of loss of earning capacity, it is, in the words of Professor Gardner, [translation] "a pointless importationfrom the common law". He states the following on this subject:[7] [translation] 466. – Ambivalent case law. The limitations of this concept are well understood in case law, and it is generally applied only where theresulting solution is a fair one.

One author has pointed out that Anglo-Canadian courts actually compensate loss of revenue through theconcept of loss of earning capacity and that neither one of these concepts were applied to certain categories of victims (e.g.,homemakers). Most often, "the predominant approach is to characterize the loss as that of a capacity, but to assess the damages based on what the plaintiff would actually have earned if not for the injury".71 Quebec case law is to the same effect.

For victims who are old enough to work, their position in the job market at the time of the accidentis the determining factor in the calculation of their compensation for loss of salary. The lack of solid theoretical basis leads to variedsolutions in the case law. The concept of loss of earning capacity is sometimes used to compensate for losses that are more akin to non-pecuniary prejudice: [translation] He [the plaintiff] does not claim compensation to replace the income he allegedly lost.

Because of a reduction in his psychologicalcapacity, however, a loss of earning capacity must be considered; as his father and mother observed and as two experts confirm, he isafflicted by a loss of self-confidence, which makes him more aggressive in some tasks involving the public or third parties. This loss in itself justifies compensation in the amount of $15,000.72 _____ 70 D. Rhéaume, "Rethinking Personal Injury Damages: Compensation for Lost Capacities" (1988) 67 Can. Bar. Rev. 82. The sameobservation was made by J.

Cassels, Remedies: The Law of Damages (Toronto: Irwin Law Inc., 2000) at 125. 71 Ibid. at 88. Cf. Korpela v. March, (1993) (AB KB), 9 Alta L.R. (3d) 117 (Q.B.) at 129: "[a]lthough the casesreferred to 'loss of earning capacity', a careful review of the actual damages awarded indicate that the Court estimates a loss of earnings,that is, what would have been earned but for the accident, rather than what was the capacity or ability to earn"; K. Oliphant (ed.), TheLaw of Tort (London, Eng.: LexisNexis Butterworths, 2007) at para 6.50 at 276 ("little of practical consequence appears to turn on thedistinction"): H.

Luntz (2002) at para 5.1.4 at 303 ("purely verbal level"). 72 Pomerleau v. Québec (Attorney General), J.E. 2004-1128 (Sup. Ct.) at para 52, in a case involving unjustified arrest and charges. [102] And what of the non-pecuniary prejudice suffered by the respondent? [103] In 1998 and 1999, the consequences of the report on the respondent's life were considerable. The previously quoted expressionsused by the judge to describe them are highly significant: [translation] [42] [In 1998] When Dr. Audet became aware of it, he was deeply distressed.

Simply put, his life and his family's life were turned upsidedown. [43] He had always been there for his children; now he does not take care of them. He isolated himself. After the report was filed, hecontinued to practice, but with great difficulty because he was losing confidence in his abilities. ... The symptoms of depression weresettling in. ...

[47] Once the present action became a subject of media attention, his professional life was turned completely upside down: dentists no longer referred patients to him, and patients came to get their files or simply cancelled their appointments. [48] The social life of Dr. Audet and Ms. St-Martin, his spouse, was obliterated. Although they were once very active and involved in the social and philanthropic life of Chicoutimi, their telephone no longer rang. There were no more invitations from their groups of friends in Chicoutimi or Quebec City, whom they had known since Dr. Audet's time in university.

If there was ever a chance meeting, their friends acted very coldly toward them. ... [50] Dr. Audet retreated into himself. He became more and more isolated. He no longer took care of his children as he used to. He only left home to go to the office. He cried. He was no longer his old self. ... [55] Dr. Audet was thus suffering from major depression. It affected his concentration. Despite psychological and psychiatric treatment, which he still received then, Dr.

Audet did not pass his exams to become a doctor until the third try. [ 104 ] Between the report in 1998 and its being reported in the media in 1999, the first reversal in the situation occurred in May 1999, with the respondent's expert report that forcefully concluded that the appellant's report had no merit: [ translation ] Dr. Pierre-Éric Landry created an entire scenario based on the alleged fact that there was "fraud" on the part of Dr.

Alain Audet and the entire surgical team, including the anaesthesiologist and nurses at the hospital, to hide from the patient the fact that she did not have surgery on her jaw. I have examined the file, X-rays and cephalometrics, and I believe that this assertion is entirely false. [ 105 ] The situation nevertheless remained difficult for the respondent until the judgment of Babin J. [ 106 ] The defamatory remarks hurt the appellant, and he felt the effects from September of 1998 to February of 2002, when his reputation was finally entirely restored.

The injury lasted three and a half years, not ten years. [ 107 ] Returning to the compensation awarded by the judgment, the first three: 6.1 Pecuniary damages - $32,000 for rental of an office that became pointless; - $70,000 for [ translation ] "injury to the psychological health" of the respondent; 6.2 Bodily damages - $150,000 for [ translation ] "the physical, psychological, family, social, and professional consequences...on the life" of the respondent; 6.3 Moral damages - $100,000 for [ translation ] "moral prejudice"; should be united into a single compensation for "moral prejudice" within the meaning of

article 1607 C.C.Q ., which may be divided according to the pecuniary and non-pecuniary consequences of the defamation. [ 108 ] To summarize, the only pecuniary consequence is the rent paid pointlessly. There was no loss of income or any other pointless expense. [ 109 ] Non-pecuniary consequences include: The [ translation ] "[i]njury to psychological health", "the physical, psychological, family, social, and professional consequences", and the "moral prejudice".

The judge awarded $320,000 in total, distributed over the three categories. [ 110 ] Taking into account the fact that the defamation ceased in February of 2002, and avoiding any overlap, it appears that half this amount is an appropriate compensation. E- Punitive damages [ 111 ] Punitive damages are due "in case of unlawful and intentional interference". [8] [ 112 ] In my view, the interference was not intentional. The appellant did not wish to inflict the serious consequences that were caused by the use of the word "fraud". [ 113 ] The judge was of the contrary view.

She expressed this in the negative: [ translation ] [253] From the evidence as a whole, the Court concludes that, while there was no intention to harm Dr. Audet, as Dr. Landry maintains... the conduct of someone who did have such an intention would not have been very different.

[ 114 ] To conclude that there was intentional interference, the judge based herself on, inter alia , the following criticisms of the appellant: [ translation ] [252] ... During the trial [in 2002], Dr. Landry tried on two occasions to convince Babin J. that his position had merit, so as to encourage him to adopt his conclusion; At the present hearing, despite the content of the judgment of Babin J., Dr.

Landry again tried to convince the undersigned, even though that is not the point of the dispute before us; [ 115 ] Let us review the events again: [ 116 ] The appellant agreed with the opinion of the other surgeon, who was on bad terms with the respondent. The appellant, however, was a friend of the respondent’s and had no personal reason to wish to cause him harm. [ 117 ] In 1998, he sent his report to counsel for the patient. Clearly, she did not deem it appropriate to ask him to strike out the word "fraud" and decided to file it as is.

The attorney is not here to defend herself, but the appellant could nevertheless rely on her opinion. [ 118 ] The appellant did not disseminate the report or discuss it within his circle of friends or with other dentist colleagues. If he had wanted to harm the respondent, that is what he would have done. [ 119 ] He is not the one who provoked the media attention.

Again, it would have been easy to leak the report to the media if his intention had been to harm the respondent. [ 120 ] Someone delivering a blow in a fistfight knows that he will hurt the other person, but he does not wish to seriously injure that person or kill him, even though that may unfortunately happen on some occasions, particularly if the opponent has a thin skull and the blow, which normally would cause nothing more than a black eye, causes a brain injury. [ 121 ] The appellant knew that the word "fraud" would hurt the appellant, but that is a far cry from wishing to ruin his professional, family, and social life.

Had it not been for the pre-existing unfavourable condition of the respondent, the blow would not have had such a devastating effect. [ 122 ] In my view, the award of punitive damages should be struck. E - Extrajudicial fees and disbursements [ 123 ] The defence to the action failed in part, but it was neither frivolous nor abusive. The evidence was contradictory, and this required the judge to make a ruling in a comprehensive judgment that examined all of the aspects of a complex dispute. [ 124 ] The judge noted the presence of the Fonds d’assurance responsabilité des dentistes at the appellant's side.

The appellant was required to collaborate with the insurer to benefit from its protection. An admission of liability is inadvisable in such a situation. [ 125 ] A reading of the respondent's action reveals that his attorneys were preparing for a full-scale battle so as to obtain the maximum amount for their client. The defence had to be up to the challenge. It was a tough but fair fight. [ 126 ] In my view, a portion of the extrajudicial fees and disbursements awarded should be struck. * * * [ 127 ] The judge added an injunctive conclusion that the appellant seeks to have removed: [ translation ] ORDERS Dr.

Pierre-Éric Landry not to intervene, either directly or indirectly, in any professional file or procedure in which Dr. Alain Audet may be involved as a health professional; [ 128 ] This order flows directly from the judge's perception that the injury to the respondent's reputation continued for ten years and that it was still ongoing. [ 129 ] I am convinced that the appellant will stay faraway from the respondent and avoid any medical file in which he is involved. His error has cost him enough; he will not wish to pay any more for it. [ 130 ] Moreover, the wording of the order is too broad and too vague.

An injunction must be precise so that the respondent may clearly understand the "offence", punishable by a fine or prison, from which he must refrain. * * * [ 131 ] For these reasons, I am of the view that the Court should:

a) ALLOW the appeal in part, with costs;

b) SET ASIDE the judgment, striking conclusions 306, 307, 308, and 310, and replacing them with the following: CONDEMNS the defendant Landry to pay the plaintiff Audet the amount of $191,828 plus interest and the additional indemnity as of the date of service.

c) AFFIRM the other conclusions of the judgment. PAUL VÉZINA, J.A.