2015 QCCQ 3263, 2015 QCCQ 3263

JF1075 Karman c. Hudson Bay Company Store 110 2015 QCCQ 3263 COURT OF QUÉBEC (Small Claims) CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Civil Division No. 550-32-021976-144 DATE: April 27, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN FAULLEM J.C.Q. ______________________________________________________________________ GABOR KARMAN Plaintiff v.

HUDSON BAY COMPANY STORE 110 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Gabor Karman is claiming from Hudson Bay Company Store 110 ( HBC ) $7000 in moral damages as a result of a complaint of sexual assault that allegedly occurred at the Zellers store in the Hull area of Ville de Gatineau. [ 2 ] Mr. Karman reproaches HBC employees for having filed false accusations with the Ville de Gatineau police department, which led to a first arrest on May 29, 2012 and a second arrest on June 22, 2012.

I- THE ISSUE [ 3 ] Is HBC liable for the damage sustained by Mr. Karman further to the two arrests? II- CONTEXT [ 4 ] The Court notes the following from Mr. Karman’s uncontradicted testimony. [ 5 ] In May 2012, Mr. Karman was a regular customer at the Zellers store at Place Cartier in the Hull area of Ville de Gatineau. [ 6 ] As acknowledged by HBC in its written contestation, at that time, Zellers stores, including the store at Place Cartier, were the property of HBC. [ 7 ] On April 14, 2012, while shopping at Zellers, Mr. Karman noted the presence of Marie-Pierre Dion behind one of the store’s cash counters.

Having met her when she was working in a convenience store on rue Promenade du Portage in another area of the city, he approached her and talked with her for 15 minutes or so. On that occasion, Mr. Karman learned that Ms. Dion had not been working at Zellers for long. At the end of their conversation, Ms. Dion gave Mr. Karman her email address. [ 8 ] The same evening, and several times after that, Mr. Karman tried to send an email to Ms. Dion, but without success; the email address he had did not appear to be the correct one. [ 9 ] A little over a month later, on May 21, 2012, Mr.

Karman returned to the Zellers store to get in touch with Ms. Dion again, since he could not reach her by email. [ 10 ] While Mr. Karman was talking with an employee in the electronics department, Ms. Dion approached him to say hello. Since he was engaged in a conversation, Mr. Karman agreed with Ms. Dion to talk a little later. [ 11 ] As he could not locate Ms. Dion when he finished his conversation with the employee in the electronics department, Mr. Karman left Zellers in order to continue his shopping at Dollarama and IGA, located at the other end of Place Cartier. [ 12 ] When he finished his shopping, Mr.

Karman decided to go back to Zellers to see whether he could speak with Ms. Dion. After a

few minutes, he saw her near a dressing room counter. Ms. Dion was with another employee, who appeared to be explaining what Ms. Dion had to do. Mr. Karman deduced that Ms. Dion was in training. [ 13 ] After hesitating a few times, Mr. Karman interrupted them in order to see whether he could speak with Ms. Dion. The other employee responded that they were busy. Mr. Karman placed his hand on Ms. Dion’s left shoulder to encourage her and told her that he would speak with her later, when she was available. Ms. Dion thanked him and returned to her duties. [ 14 ] After waiting for 20 minutes or so and seeing that Ms.

Dion was still busy, Mr. Karman went to the customer service counter for paper and a pencil so he could write her a note and give her his email address. [ 15 ] Mr. Karman then decided to take his hand-written note directly to Ms. Dion before leaving Zellers. [ 16 ] Before Mr. Karman managed to reach Ms. Dion, another Zellers employee stopped him and accused him of harassing Ms. Dion. The employee ordered him to leave the store immediately or she would call the police. [ 17 ] Mr. Karman tried to explain, but the employee repeated her threat to call the police. Mr.

Karman decided to leave the store. [ 18 ] The next day, Mr. Karman called Zellers general customer service in order to file a complaint against the employee who had ordered him to leave the store. [ 19 ] The same day, he also spoke with one of the managers of Zellers at Place Cartier. To his recollection, the employee’s given name was Fatima. During their conversation, Fatima asked him to explain the situation. After listening to Mr. Karman, Fatima took down his name and contact information, and informed him that she would forward his complaint to the administration. [ 20 ] As he had had no news, Mr.

Karman called the Zellers general customer service back a few days later. He spoke with an employee reportedly named Dina. She informed him that the complaint he had filed in his first call was still taking its course. She said that a person in charge of the Place Cartier store would contact him shortly. [ 21 ] Mr. Karman tried several times in the days that followed to speak with the person in charge of his complaint, but without success.

Every time he managed to speak with a Zellers employee, both at Place Cartier and at the general customer service, he was told that someone else would call him back. [ 22 ] On May 29, 2012, in the late afternoon, Mr. Karman went directly to the Zellers customer service counter at Place Cartier and asked to speak to the manager. He was informed that Fatima, the department manager, had been notified of his presence and that she would come and meet with him. [ 23 ] After waiting 20 minutes or so, Mr. Karman was accosted by a Ville de Gatineau police officer, who asked Mr.

Karman to follow him into a small room adjacent to the customer service counter. [ 24 ] Once they were in the room, the police officer informed Mr. Karman that Zellers employees had accused him of sexually harassing Ms. Dion on May 21, 2012. [ 25 ] Mr. Karman vigorously defended himself before the police officer, saying he had not sexually harassed her and he asked the officer to immediately check again with the Zellers employees. He also asked if it would be possible to screen the video recordings of the event, if they were available. [ 26 ] Mr.

Karman was then escorted outside by the police officer, who issued him a notice to appear in Criminal Court. Mr. Karman used his time in the police car to write a statement of his version of the May 21 events. The written statement was given to the police officer. [ 27 ] Mr. Karman was then released, without it being necessary to take him to the Ville de Gatineau police station. [ 28 ] In the criminal proceedings stemming from the sexual assault complaint, Mr. Karman signed an undertaking to stay at least 50 metres away from the Zellers store at Place Cartier. [ 29 ] On June 22, 2012, while at home, Mr.

Karman was again arrested by Ville de Gatineau police officers. At the time of his arrest, Mr. Karman was informed that he was allegedly seen by Zellers employees at fewer than 50 metres from the store. [ 30 ] Mr. Karman acknowledged that he had gone to Place Cartier that day, but he denied being so close to the Zellers store. He said he was in the area of the IGA, at the other end of the shopping centre. The IGA is at least 500 metres from the Zellers store, according to Mr. Karman. [ 31 ] Although he was not held by the Gatineau police department, Mr.

Karman was committed to stand trial on a charge of breach of an undertaking. [ 32 ] On October 22, 2013, more than 17 months after his first arrest, Mr. Karman was acquitted of all the charges against him further to the various complaints by Zellers employees, including the charge of breach of an undertaking. [ 33 ] It should be noted that none of the Zellers employees who filed a complaint against Mr. Karman or who signed statements at the time of the two events described above testified at the criminal trial. Given that, Mr.

Karman was found innocent of all charges, for lack of evidence. [ 34 ] In addition to suing HBC for the acts of its employees, Mr. Karman is also suing Ville de Gatineau in two separate cases instituted in Small Claims of the Court of Québec. The two cases bear numbers 550-32-021790-149 and 550-32-021789-141.

[ 35 ] The Court heard those two cases at the same time as the case at bar. In the two other cases, Mr. Karman alleged that the Ville de Gatineau police officers arrested him on May 29 and June 22, 2012 without a valid reason. [ 36 ] The Court dismisses Mr. Karman’s two proceedings regarding Ville de Gatineau in the two separate judgments rendered at the same time as the present decision. III- THE LAW AND ANALYSIS [ 37 ] In a judgment rendered in 2011 in Binet v.

Société des Casinos du Québec inc. (Casino du Lac Lemay) [1] by the Québec Superior Court and upheld in 2013 by the Court of Appeal, [2] the Honourable André Roy J.S.C. analyzed the legal principles on which the courts must rely in determining the liability of a person who files a complaint with the police authorities for criminal acts. [ 38 ] After recalling that an acquittal of a criminal charge does not, in and of itself, constitute proof of the complainant’s civil liability, [3] Roy J. indicated that, nonetheless, an acquittal constitutes a legal fact that must be considered by a civil court. [4] [ 39 ] Here is Roy J.’s explanation of the rules applicable to the liability of a complainant: [TRANSLATION] [40] Alleging that the Casino abused its right to file a complaint against him with the police authorities, Binet’s recourse revolves around the general system of civil liability based on

article 1457 of the Civil Code of Québec (“ C.C.Q. ”), which gives rise to civil liability when a fault is committed that causes an injury and there is a causal link between the fault and the damage. [41] It is therefore up to him to prove by preponderant evidence the elements constituting liability. [42] The foundation of the abuse of right is said to be, in this case, not malicious intent to injure him, but rather the boldness with which the Casino acted, without reasonable or probable cause. [43] It is therefore from that standpoint that the Casino’s conduct must be examined in order to determine whether it committed any fault. [44] In that regard, the standard of reference is a “reasonable person”, a normally prudent and diligent person, endowed with ordinary judgment and intelligence.

Let me add that its conduct must be analyzed from the time that the Casino engaged in the act for which Binet reproaches it, not retrospectively. [5] [45] Authors A. Nadeau and R. Nadeau add that the existence of probable cause depends less on the facts in the case than on an honest and reasonable belief by the person filing the complaint, based on plausible grounds, that the accused is guilty. That belief must be based on serious grounds, and if need be, on information that has been carefully verified. [6] , [7] [ 40 ] In the case at bar, the Court has only Mr.

Karman’s testimony in order to determine the outcome of the dispute. [ 41 ] At trial, HBC was represented by Carl Langevin, a claims adjuster to whom HBC gave a mandate to analyze Mr. Karman’s claim. Mr. Langevin acknowledged that he had no personal knowledge of the facts that led to Mr. Karman’s two arrests. [ 42 ] No employee of the Zellers store was present at the trial in order to contradict Mr. Karman’s testimony or provide any other clarification regarding the events in question at the store in 2012, which was also the case during Mr.

Karman’s criminal trial. [ 43 ] Consequently, HBC was unable to prove the allegations of its written contestation. The Court therefore cannot accept any element of the contestation that could have contradicted Mr. Karman’s testimony. [ 44 ] Mr. Langevin explained that, since the closure of the Zellers stores, it has been impossible for HBC to locate the employees who witnessed the 2012 events. [ 45 ] HBC tried to use the written statements that its employees at the time gave the police officers in order to prove the events of 2012.

Although the statements can be admitted in order to establish that the police officers received such statements, as it has been done in the two cases mentioned earlier involving Ville de Gatineau, they cannot be used to prove their content without the presence of the deponents in court.

Article 2869 C.C.Q. provides that the statement of a person who does not testify in a judicial proceeding is not admissible as testimony unless all the parties consent thereto. Mr. Karman did not consent to the filing of the statements without the presence of the people who signed them. [ 46 ] In fact, it should be noted that Mr. Karman tried, by means of an application for access to information, to obtain the addresses of the Zellers employees who filed charges against him. The applications were rejected by Ville de Gatineau, following which Mr.

Karman even sued the Ville de Gatineau for damages as a protest against an unjustified refusal on its part. My colleague the Honourable Laurin J.C.Q. dismissed that proceeding on December 17, 2014 in Court case number 550-32-021791-147. [ 47 ] Even if that proceeding was dismissed, it unambiguously demonstrates Mr.

Karman’s intention to require the physical presence in Court of the witnesses who filed with the police authorities the statements on the basis of which the charges of sexual harassment and breach of an undertaking were brought. [ 48 ] HBC reportedly also tried to file the written statements of the complainants to serve as testimony, in accordance with

article 980 of the Code of Civil Procedure . But that procedure requires the filing of a written notice at the office of the Court of Québec within the 15 days preceding the start of the hearing. That period of time makes it possible for the other party to decide whether it requires the deponent’s presence or not. HBC did not make that request. In addition, it would still have been possible for Mr. Karman to oppose the filing, which the facts in this case actually appear to confirm.

[ 49 ] Accordingly, the Court cannot accept the written statements filed with the police authorities by the Zellers employees as testimony in this case. [ 50 ] Thus, Mr. Karman’s testimony demonstrates preponderantly that the Zellers employees acted [TRANSLATION] “in the absence of a reasonable and probable cause” when they filed a complaint against Mr. Karman in May and June 2012. [ 51 ] In accordance with

article 1463 C.C.Q., HBC must make reparation for the injury caused by the fault of its employees acting in the performance of their duties. [ 52 ] As for the damages claimed by Mr. Karman, the evidence shows that he experienced frustration, resentment, helplessness and major stress, which created emotional problems as of the filing of the various charges by the Zellers employees. In addition, Mr. Karman felt humiliated when he was arrested and held by the police officer in the Zellers store at Place Cartier on May 29, 2012, in front of the employees and customers of the store. [ 53 ] Since those events, Mr.

Karman has been followed by a psychologist, Dr. Krishnatrasad Degala, whose February 19, 2014 report confirms a diagnosis of psychosis and depression as a result of the two arrests and the charges of sexual harassment and breach of an undertaking that followed. [ 54 ] In a recent decision, Couillard v.

Québec (Procureur général) , [8] my colleague the Honourable Brigitte Charron J.C.Q. reviewed a multitude of decisions granting moral damages to plaintiffs acquitted of criminal charges. [ 55 ] In paragraph 55 of her judgment, Charron J. wrote the following: [TRANSLATION] [55] The Court concludes from a review of the whole of that jurisprudence that, in 2014, it is not inappropriate to grant $10 000 per day of illegal incarceration.

The decisions in the past establish, as a whole and with the amounts updated, comparable amounts per day of incarceration, taking into consideration the years of the judgments. [ 56 ] In the case at bar, Mr. Karman was not incarcerated. However, his first arrest took place in the presence of Zellers employees and customers. The second arrest was at Mr. Karman’s home, in front of his neighbours. [ 57 ] Subsequently, Mr. Karman had to defend himself from the charges brought against him. The criminal proceedings were spread over a period of more than 17 months.

The Court takes into consideration that, at the end of that period of stress and uncertainty, Mr. Karman was ultimately found not guilty of the charges because of the failure of the Zellers employees to provide any testimony before the judge seized of the criminal complaints. The Court notes that the same situation occurred in the hearing of this case. [ 58 ] In those circumstances, and in light of all the decisions analyzed by Charron J., the Court grants Mr.

Karman $7000 in compensation for moral injury sustained because of the two arrests and the whole legal process resulting from the charges of sexual harassment and breach of an undertaking. [ 59 ] THEREFORE, THE COURT: [ 60 ] ORDERS Hudson Bay Company Store 110 to pay Gabor Karman $7000 with interest at the legal rate plus the additional indemnity provided for in

article 1619 of the Civil Code of Québec as of July 9, 2014, the date when the proceeding was instituted, without costs. __________________________________ JEAN FAULLEM J.C.Q. Date of hearing: January 26, 2015