2017 QCCQ 6469, 2017 QCCQ 6469

Unofficial English Translation Bélanger Corbeil c. Holiday Inn Laval Montréal 2017 QCCQ 6469 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL LOCALITY OF LAVAL “Civil Division” No.: 540-32-029618-160 DATE: August 14, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LANDRY, J.C.Q. ______________________________________________________________________ MARIE-EVE BÉLANGER CORBEIL Plaintiff v.

HOLIDAY INN LAVAL MONTRÉAL Defendant ______________________________________________________________________ CORRECTED JUDGMENT [1] ______________________________________________________________________ [ 1 ] The plaintiff Marie-Eve Bélanger Corbeil is claiming a total of $15,000, representing $10,000 in moral damages and $5,000 in punitive damages, after she went into anaphylactic shock (allergic reaction to peanuts) during her family’s Christmas Eve party at the Holiday Inn Laval Montréal in Laval (hereinafter the “ Holiday Inn ”) on December 24, 2015. [ 2 ] Holiday Inn argues that it is not responsible for the damages suffered by Ms.

Bélanger Corbeil and that, in any event, her claim is grossly exaggerated. ISSUES IN DISPUTE [ 3 ] The issues in dispute are as follows: 1) Is the defendant responsible for the plaintiff’s allergic reaction during the Christmas Eve party? 2) In the affirmative, what is the quantum of damages? 3) Should punitive damages be awarded? THE FACTS [ 4 ] The plaintiff has been allergic to peanuts, nuts and sunflower seeds from a very young age. [2] [ 5 ] In the fall of 2015, the family of her spouse, Sébastien Marette, planned a Christmas Eve party.

For the purposes of this case, I will refer to them as the “ Bachant Family ”. [ 6 ] In early November, Pauline Bachant, a family member, began organizing the Christmas Eve party with Noémie Morin, Banquet Coordinator at the Holiday Inn, as evidenced by the many emails exchanged as of November 2. [3] [ 7 ] On November 4, 2015, Ms. Bélanger Corbeil raised the issue of her allergies ahead of the party. She told a family member about her allergies, who passed on the information to Ms. Bachant, who in turn informed Ms.

Morin. [ 8 ] In fact, the contract signed on November 13, 2015, [4] between the Bachant Family and the Holiday Inn states: [translation]

Allergies: • Marie-Eve Bélanger: peanuts, all nuts, sunflower seeds and oil. [ 9 ] The establishment asked about a possible allergy to olive or vegetable oil, to which they received a no. [ 10 ] On December 18, Ms. Caroline Jobin of the Holiday Inn noted that the turkey chosen by Ms. Bélanger Corbeil contained chestnuts, which might pose a problem. It was agreed to replace the turkey breast with shredded duck served with caramelized onions as a safety precaution because it was not known whether the chestnuts were dangerous. [ 11 ] On December 24, the evening of the Christmas Eve party, Ms.

Bélanger Corbeil arrived at the reception hall around 5:30 pm, with all the other guests. [ 12 ] The first thing she did was to meet with Ms. Marie-Pier Beauregard, the supervisor and person in charge of service for the Bachant Family reception, to provide her with a list of her previously mentioned allergies. [ 13 ] A first round of hors d’oeuvres was served and Ms. Beauregard informed her that they did not contain any allergenic ingredients. [ 14 ] The entrées and bread (white and whole wheat) were served around 7:30 pm. Ms. Beauregard again confirmed that there was no problem. Ms.

Bélanger Corbeil, however, preferred to stick to white bread because it was much safer than brown bread due to her allergies. The entrées consisted of duck prepared three ways: tartare with sesame, semi-cooked foie gras, and smoked. [ 15 ] Ms. Bélanger Corbeil experienced the following symptoms as soon as she took a bite of the tartare with bread: pasty mouth, itchy face, nausea, stomach-ache, swollen throat, and nasal congestion. She headed to the washroom. [ 16 ] Her face then broke out in hives which subsequently spread to the rest of her body. She cried.

She vomited. [ 17 ] Monique, a member of the Bachant Family who is a nurse, was told about what had just happened and went to join the plaintiff in the washroom. She suggested taking Benadryl immediately, hoping that the drug would solve the problem. Ms. Bélanger Corbeil also had epinephrine with her (“Epipen”) but, after talking with the nurse, decided that it was not necessary to use it right away. Had she used the Epipen she would have had to go straight to the hospital so her reaction could be monitored. [ 18 ] But her condition worsened and it was agreed that Ms.

Bélanger Corbeil should go to the emergency room at Cité-de-la-Santé in Laval as soon as possible. [ 19 ] Ms. Bélanger Corbeil sat on a bench while she waited to leave for the hospital. She was shivering considerably. [ 20 ] The supervisor Beauregard saw her and went over to find out how she was feeling and to fill out an incident report. [5] The report essentially relates all of the above. [ 21 ] Ms. Bélanger Corbeil asked Ms.

Beauregard for copies of the recipes for the entrées served. [ 22 ] She was given the recipe for the brioche pastry, torchon-style foie gras [6] and the baguette Niçoise . [7] The tartare recipe, however, was unavailable because the chef who had prepared it was not on duty and could not be reached that evening. [ 23 ] The baguette Niçoise contained “ 2% sunflower seeds ”, one of the allergens. [ 24 ] Ms. Bélanger Corbeil insists that Ms.

Beauregard told her during one of their conversations that the same knife had been used to cut the brown bread baguettes and the white bread baguettes, which may have resulted in cross-contamination. Ms. Beauregard told her that there was [translation] “ only 2% sunflower seeds ” in the brown bread, suggesting that it was not that serious. At trial, Ms.

Beauregard did not remember exactly what she may have said that evening, given how much time has passed, but did not formally contradict the plaintiff’s testimony. [ 25 ] The tartare recipe was sent the next morning, on December 25. [8] The first ingredient listed is 20 grams of [translation] “ creamy peanut butter ”, one of the products to which the plaintiff is allergic. [ 26 ] Ms.

Bélanger Corbeil believes that the peanut butter in the tartare and possibly the cross-contamination of the white bread with the whole wheat bread that contained sunflower seeds caused the symptoms she experienced during the Christmas Eve party. [ 27 ] The hospital report [9] states that she was admitted at 10:35 pm. She was injected with the Epipen, Dilaudid and given a cortisone pill. The report noted that her uvula, throat, lymph nodes and vocal chords were swollen. [ 28 ] During the night, because her medical condition was under control and she was drowsy, she told her spouse, Mr.

Marette, to leave and go back to the party with his family, whom he had not seen in a while. [ 29 ] She was discharged at 4:00 am because she no longer had any symptoms, knew her allergy and had some Epipens with her in case her symptoms reappeared. She was prescribed Novo Prednisone and Gravol that she bought at the drugstore when it opened. [10] [ 30 ] In the email she sent on December 25, 2015, [11] the supervisor Beauregard confirmed that the tartare contained peanut butter and informed Mr. Marette that: [translation] There will be no cost for your meal or your spouse’s meal.

We will contact you shortly regarding further compensation.

I sincerely apologize for this incident and guarantee that we are here for you should you need us. [ 31 ] The plaintiff returned to work as a Radio-Canada business partner on Monday, December 28, as planned. [ 32 ] The hotel director, Ms. Patricia Alaouz, returned from vacation on January 5, 2016, and took charge of Ms. Bélanger Corbeil’s claim. In an email sent January 5, she stated that what happened [translation] “ was not negligence, but an accident” .

She concluded that [ translation ] “ we can never fully guarantee ”, and offered her a free night at the hotel plus a refund for her meal and that of her spouse ($59 per person plus taxes). [12] [ 33 ] Dissatisfied with this reply, Ms.

Bélanger Corbeil sent the Holiday Inn Laval a formal notice on February 5, 2016. [13] She described the events related above and claimed $15,000 for trouble, worry, inconvenience and punitive damages. [ 34 ] The parties were unable to reach a settlement, as demonstrated by the subsequent string of emails between the plaintiff and the claims expert retained by the Holiday Inn. [14] [ 35 ] On May 27, 2016, the plaintiff filed this proceeding.

THE APPLICABLE LAW [ 36 ] I consider this to be a contractual matter, that is, there was a contract between the Holiday Inn and the Bachant Family guests to hold a Christmas Eve party with a meal. [15] [ 37 ]

Article 1458 of the Civil Code of Québec governs contractual matters: 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them . [ 38 ] In theory, the plaintiff has the burden of proving that its action and claim are well founded (first paragraph of

article 2803 C.C.Q): 2803.

A person seeking to assert a right shall prove the facts on which his claim is based . … [ 39 ] In contracts, however, there are basically two types of obligations, an obligation of means and an obligation of result. [ 40 ] The obligation of means is, for example, that of a doctor who must take the appropriate means to heal the patient but is not bound to guarantee that the patient will be healed. [ 41 ] By contrast, an obligation of result is one where a carrier who agrees to deliver a good to a given address on a given date must guarantee that the service will be rendered. [ 42 ] The interest in making the distinction lies in determining which party bears the burden of proof, as explained by authors Baudouin and Jobin in their work Les Obligations [16] (at page 51): [ translation ] In an obligation of means , the creditor has the burden of proving , to hold the debtor liable, that the debtor did not act with reasonable diligence or prudence in the pursuit of his set goal... [ 43 ] However, for an obligation of result (page 52): [ translation ] The creditor need merely prove the lack of result to create a presumption that the debtor is liable .

From that point, to evade liability, the debtor must prove more than a mere absence of fault. From a probative standpoint, the absence of result therefore creates a presumption that the debtor is liable and places the burden of proving that he is not responsible for the non-performance on his shoulders . The debtor cannot simply try to prove that he was not at fault; he must identify , on the balance of probability, the force majeure or act of the victim that prevented the obligation from being performed.

A debtor who fails to discharge this burden is liable for the non-performance . [ 44 ] There is not much case law in Quebec on anaphylactic shock after consuming allergenic food. [ 45 ] There was, however, a case heard in 2011 by the Honourable Justice Currie of the Court of Queen’s Bench in Saskatchewan. [17] Even though it is a common law decision, it contains interesting teachings applicable to this case. [ 46 ] Mr. Martin is an American hunter who was staying at the Travelodge Hotel in Melfort, Saskatchewan, a hotel owned by Interbrooks.

On September 22, 2006, he went to the dining room with the other members of his group. They were served by Ms. Geddes. [ 47 ] Mr. Martin asked her if there were nuts in the cheesecake and told her that he was very allergic to nuts, having had severe

reactions in the past. [ 48 ] Currie J. accepted, based on a balance of probability, that Ms. Geddes had reassured him that there were no nuts and Mr. Martin ordered the dessert. [ 49 ] After one bite, he declared that the cheesecake contained nuts because he reacted strongly. He experienced difficulty breathing, a burning sensation over his entire body, hives, elevated heart rate, loss of consciousness, etc. [ 50 ] He asked to be driven to the hospital emergency room.

In the meantime, he went to get an epinephrine/adrenalin syringe (Epipen) that he kept in his room, the preferred treatment during anaphylactic shock. Because the hospital was very close (2 minutes), he preferred not to inject himself immediately and to wait until he had arrived at the emergency room. [ 51 ] He experienced a very violent shock and almost died because he did not respond to the medication for the first four hours. After four hours of intensive care, his condition finally improved and he was discharged during the day, with medical restrictions. [ 52 ] During this time, one of Mr.

Martin’s companions checked the ingredients listed on the cheesecake packaging in the hotel kitchen and saw that it contained nuts. [ 53 ] Currie J. reviewed the evidence and applicable legal considerations and concluded as follows: - The waitress had an obligation to ascertain that the cake did not contain any nuts and to provide an accurate answer to the client’s questions; she breached these duties (paras. 30 and 31 of the decision), which made her liable for the damages suffered by the plaintiff (paras. 49 and 55); - The employer Interbrooks was also liable for its employee’s breach because it must provide its customers with food that will not put their health at risk (paras. 59 and 60): Generally, the law of negligence requires a restaurant operator to exercise a care proportionate to the serious consequences which may result from a lack of care.

He his [sic] necessarily bound to ensure that the food prepared and served by him is fit for human consumption and may be eaten without causing sickness or endangering life by reason of its condition …It has also been said that the standard of care would be the same care as a person would use in preparing his own food . [18] - The employer has a duty to train its employees on the dangers of allergies and their obligation to ascertain that the food served is free of the allergens reported by their clients (paras. 61 and 62); - There was no contributory negligence by the customer for failing to immediately inject himself with his Epipen, because it was not proved that the reaction would have been less severe given that it was administered as soon as he arrived at the emergency room a few minutes later; - The Saskatchewan Consumer Protection Act was applied. [ 54 ] On this last point,

section 48 of the Saskatchewan Consumer Protection Act is similar to sections 37, 40 and 42 of the Quebec statute, [19] which provide as follows: 37. Goods forming the object of a contract must be fit for the purposes for which goods of that kind are ordinarily used . 40. The goods or services provided must conform to the description made of them in the contract . 42. A written or verbal statement by the representative of a merchant or of a manufacturer respecting goods or services is binding on that merchant or manufacturer . 219.

No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer . (Emphasis added.) [ 55 ] These provisions may be used to find that an employee who wrongly answers a client that there are no allergenic ingredients in the food makes “ a false or misleading representation ” prohibited by law. [ 56 ] Moreover, since the warranties of quality and conformity apply to household appliances, automobiles, etc., they can also be applied to a meal sold in a restaurant. [ 57 ] This places an obligation of result, even one of warranty, on the merchant. [ 58 ] Currie J. stated that the legal relationship between a restaurateur and the customer is contractual: I observe, however, that typically a person ordering food or drink in a restaurant is entering into an oral contract , to pay for the items…I conclude that Mr.

Martin had made a contract with Interbrooks to pay for the items that he had ordered… (at para. 71). [ 59 ] This decision therefore supports the preceding statements to the effect that: (1) there is a contract between the parties; (2) the customer benefits from a warranty that the food served will be free of the allergens he reported at the outset and that this is an

obligation of result. [ 60 ] Quebec case law also contains a few decisions of interest in food matters. [ 61 ] In Boucher c . McDonalds Canada ltée, [20] Laroche J. held the restaurateur liable for an earthworm found in a hamburger. [ 62 ] In Cadieux c . Aliments Fontaine Santé inc, [21] Barbe J. did likewise for a piece of plexiglass found in some tabbouleh. He held that the merchant had an obligation of result (at page 4): [ translation ] On a balance of probability, the evidence establishes that plastic covers were broken by the respondent’s employees and that pieces of plastic ended up in the tabbouleh.

In this regard, the respondent’s obligation is one of result ( Carrier c. David Lord ltée 1989 RRA 67 , Yvon Roberge J.). [ 63 ] In Daigle c . Monsieur Steerburger (1974) ltée , [22] the Pierre Labbé J. rendered a judgment by default against a restaurant that had served a hamburger containing allergens despite the customer’s prior declaration that he suffered from allergies to peanuts, nuts and eggs. The evidence revealed that the waitress had not been very concerned about the customer’s request to check and had simply stated that [translation] “ there was no problem ” (at para. 8).

The usual symptoms appeared as of the first bite, including stomach-ache, cramps, vomiting, difficulty breathing, swelling, etc. [ 64 ] Labbé J. relied on

article 1463 of the Civil Code of Québec , among others, to hold the restaurant liable for its employee’s negligence: 1463 . The principal is bound to make reparation for injury caused by the fault of his subordinates in the performance of their duties; nevertheless, he retains his remedies against them . [ 65 ] In Berzan c . Giorgi , [23] Brigitte Gouin J. ordered a caterer to reimburse the client’s deposit for her wedding. The client noticed during a taste testing that the planned entrée contained almonds even though the caterer had been previously warned that she had a deadly allergy to nuts.

The caterer’s interview notes indeed mentioned “ no peanuts ”. The judge noted that the employees had not been told of this allergy or had failed to take the proper precautions. [ 66 ] In Dion c . Club Voyages Côte des Neiges , [24] a customer had problems with peanuts in the food at a hotel in Saint Martin. When the trip was booked, the travel agency and the hotel chosen had been informed of the allergy and both had convinced the customer not to worry. The hotel and the agency were condemned by Marengo J. for the worries caused by the presence of allergens in the meals served. [ 67 ] In Parent c .

Centre hospitalier universitaire de Québec (Hôpital St-François d’Assise ), [25] a hospital was ordered to compensate a patient who was administered Dilaudid even though his wrist bracelet stated that he was allergic to the drug. [ 68 ] In Larouche c . 9255-3538 Québec inc. (Dame Tartine), [26] however, Sabourin J. dismissed the action on the ground that the plaintiff had failed to establish on evidence balance of probabilities that the symptoms experienced following breakfast at the restaurant were caused by toast containing gluten, to which she was allergic. [ 69 ] This review of the case law proves that allergy problems must be taken quite seriously given the very frequent severe consequences of an anaphylactic shock for the victim.

This is especially true given the exponential increase in every type of allergy in Quebec. ANALYSIS AND DECISION 1) Is the defendant liable for the plaintiff’s allergic reaction during the Christmas Eve party? [ 70 ] In this case, the Court notes that the defendant clearly undertook to provide Ms. Bélanger Corbeil with a meal free of the allergens which had been reported.

The establishment’s failure to provide the promised result means that it is liable for this failure. [ 71 ] The evidence further reveals that the recipe for the tartare was prepared in October and/or November 2015, and that it would have been easy to check with the chef responsible for the recipe whether it contained peanut butter when the contract was signed on November 13. This was not done. [ 72 ] Added to this is the probability of cross-contamination from using the same knife to cut the brown bread with sesame and the white bread.

On the subject of the 2% of sunflower seeds, it is important to know that very small quantities of an allergen are often enough to trigger a serious reaction. [ 73 ] For all these reasons, the anaphylactic shock suffered by Ms. Bélanger Corbeil gives rise to a [ translation ] “ presumption that the defendant is liable ”. [ 74 ] The defendant seeks relief from liability by submitting that Ms.

Bélanger Corbeil also had an obligation to check what she was eating, which she reportedly did not do for the turkey with chestnuts. [ 75 ] First, it has not been established that the turkey with chestnuts would have been an issue. Second, It would be difficult to require that Ms. Bélanger Corbeil take greater precautions than those that she took when the Christmas Eve party was being organized in

November, and subsequently through the steps she took with Ms. Beauregard the evening of the party to further ensure that there were no allergens in her food. [ 76 ] In addition, as with the case in Martin , the Court does not fault Ms. Bélanger Corbeil for not using her Epipen immediately given that the nurse had advised her that Benadryl might be sufficient and the proximity of the hospital emergency room. [ 77 ] The defendant has therefore failed to discharge the burden pursuant to its obligation of result, even warranty, to prove force majeure or fault by the victim.

Indeed, it does not insist on claiming its innocence, choosing instead to base its contestation primarily on the fact that the claim is exaggerated. 2) In the affirmative, what is the quantum of damages? [ 78 ] The following provisions of the Civil Code of Québec apply to the determination of damages: 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived . Future injury which is certain and assessable is taken into account in awarding damages . 1613 .

In contractual matters, the debtor is liable only for damages that were foreseen or foreseeable at the time the obligation was contracted, where the failure to perform the obligation does not proceed from intentional or gross fault on his part; even then, the damages include only what is an immediate and direct consequence of the nonperformance . [ 79 ] Authors Baudouin, Deslauriers and Jobin, in their treatise on La Responsabilité civile, [27] comment as follows: [ translation ] No I-370: The main objective of an action in civil liability is to allow the victim to obtain fair compensation for the injury suffered .

The first characteristic of the reparation of the injury is that it is compensatory …The second characteristic is that reparation must be complete , that is, the victim must be placed in the situation he or she would have been in were it not for the fault by compensating for the amount of the loss sustained and the profit of which he has been deprived (art. 1611 C.C.Q .).

No-I-372: Non-pecuniary damages are often difficult to quantify accurately or even approximately (ex: defamation, racial discrimination, unlawful arrest and detention, assault, etc.)…In all these cases, however, the injury is direct, certain and real and must therefore be compensated even where there is no scientific or objective basis upon which it can be precisely assessed … (Emphasis added.) [ 80 ] These guidelines describe the difficulty in compensating certain types of damages, such as those affecting a person’s health and inviolability. [ 81 ] One of the favoured methods to avoid the arbitrary and attempt to harmonize compensation awarded in Quebec for similar damages is to examine previous judgments and compare the indemnities granted.

This is the method that will be followed here. [ 82 ] In support of her $10,000 claim for trouble, worry, inconvenience and loss of enjoyment of life, Ms. Bélanger Corbeil submits the following: 1) The suffering she experienced from the evening of December 24 until December 28, when she returned to work at Radio-Canada. 2) Her lost trust in restaurateurs’ sense of responsibility toward steps taken concerning allergic people.

She must either ask many questions to ensure there are no allergens, or bring her own food to group dinners to avoid an error reoccurring, which deprives her of any serenity during these outings, which are meant to be festive; 3) Her loss of enjoyment during the 2015 holiday period, when she needed rest and relaxation, not having had any time off in her new job; 4) The risk of a more severe reaction during the next incident. As written by allergist Doctor Caron in an

article attached to Exhibit P-13 [translation] : “ an oropharyngeal syndrome caused by other foods, such as peanuts …should not be taken lightly and may very well be the prelude to a much more severe reaction in the future , as described below ”; 5) The time spent on negotiations with the establishment and its insurer, consultations with lawyers, mediation, etc.; 6) Expenses incurred (meal costs, drugs). [ 83 ] For a start, Ms. Bélanger Corbeil is entitled to be reimbursed for her meal ($67.83) and medication ($9.99), for a total of $77.82. [ 84 ] The remaining items listed above by Ms.

Bélanger Corbeil are aspects of the same problem that consistently recurs in food matters. In this case, a single sum should be awarded to compensate for all the injuries. [ 85 ] In a 2007 judgment, [28] Alain Désy J. performed a review of the case law respecting cases where people discovered foreign matter in their food. Even though that is not exactly the case here, the compensation awarded serve to illustrate the sums awarded for stress, anxiety and loss of confidence resulting from similar events. Désy J. noted the following: [ translation ]

[29] Thus, the amounts awarded vary greatly from one case to next, as evidenced by the following examples: - in Samson c. Pepsi-Cola Canada Ltd , the sum of $25 was awarded following the discovery of a foreign matter in a soft drink bottle. The plaintiff was disgusted whenever she saw soft drinks and had practically stopped drinking them; - in Carrier c. David Lord Limitée , the sum of $50 was awarded following the discovery of a reddish-coloured insect in a can of beans. The plaintiff alleged that he could no longer eat canned vegetables; - in Pelletier c.

Coca-Cola , the sum of $1,435.60 was awarded after the plaintiff ingested a viscous substance resembling worms in a soft drink bottle; - in Ferrante c. Restaurant McDonald's du Canada , the sum of $500 was awarded following the discovery of a piece of rag in a Big Mac; - in Cadieux c. Aliments Fontaine Santé Inc ., the sum of $1,000 was awarded following the discovery of a piece of Plexiglas in the tabbouleh the plaintiff was eating; - in Boucher c. McDonald's Canada Ltée. , the sum of $4,042.78 was awarded following the discovery of a dead whitish worm in a Big Mac; - in Poirier c.

Bertrand Degré inc . the sum of $2,000 was awarded following the discovery of a tooth in a piece of carrot cake; - in Lanctôt c. Groupe Ouimet inc . the sum of $1,500 was awarded following the discovery of a piece of glass in a can of baked beans, a piece of glass that ended up in Mr. Lanctôt’s mouth. [ 86 ] Following this review, he awarded $500 to the plaintiff, who had discovered an insect in a yoghurt container. [ 87 ] Compensation awarded several years ago should be indexed for inflation. The exercise carried out by Désy J. should also be conducted here with an emphasis on food allergy cases.

These are the results: - in 2003, in Lafortune c . Chubb, Group of Insurance companies , [29] the sum of $2,000 was awarded for an allergic reaction caused by a capillary gel (rash, itching, inflammation, swelling in the mouth) and inconveniences lasting several months; - in 2009 in Parent c . Centre hospitalier universitaire du Québec [30] the sum of $500 was awarded to a hospitalized patient who was administered Dilaudid despite his known allergy to the drug (rash, itching, discomfort that lasted for an hour); - in 2010, in Dion c .

Club Voyages Côté des Neiges [31] the sum of $1,000 was awarded to a client on a trip who was exposed to the threat of peanuts for one week even though she had reported that she was allergic before her departure (there was no ingestion); - in Martin v .

Interbrooks , [32] a decision examined in detail above, the sum of $25,000 was awarded for an anaphylactic shock that caused post-traumatic claustrophobia, cognitive deficits, a personality change (high irritability), non-specific anxiety, loss of desire to fly planes (claustrophobia), loss of desire to scuba dive, fear of dying at the hospital, reduced memory, interpersonal difficulties at work, insomnia, depression, nightmares, headaches, stress, and taking medication. Some disorders were pre-existing (2003 shock) but were exacerbated by the 2006 anaphylactic shock; - in 2013, in Verner c. A.

Lassonde inc. [33] the sum of $1,000 was awarded for mold discovered in an apple juice container; - in 2014, in Daigle c . Monsieur Steerburger [34] the sum of $4,000 was awarded to a customer with an allergy to peanuts, nuts and eggs who went into an anaphylactic shock after biting into a hamburger.

Labbé J. noted stomach-aches, cramps, vomiting, difficulties breathing, swelling to the face, and a five-hour hospitalization. [ 88 ] Concerning the compensation awarded in the case of Martin , it is noteworthy that the problems he suffered on the spot (he almost died) and his later disabilities are not proportionate to the problems encountered by Ms. Bélanger Corbeil. Therefore the compensation awarded to Mr.

Martin cannot be used here. [ 89 ] I find that the judgment rendered in August 2014 by Labbé J. in Daigle most resembles this case in terms of allergic reaction and likewise grant $4,000 in compensation. [ 90 ] There is, however, an aspect that was not raised in that case, the insecurity and loss of trust experienced by Ms. Bélanger Corbeil since December 2015 in restaurants and other establishments serving meals. Despite all her precautions, she still went into an anaphylactic shock. She will have to live with this worry and loss of enjoyment during outings to restaurants for the rest of her life.

She was only 27 years old at the time of the events and this loss of enjoyment of life deserves additional compensation. [ 91 ] The serious and permanent inconveniences caused by the events on December 24, 2015 justify an additional award of $1,500, bringing the total compensation to $5,577.82. 3) Should punitive damages be awarded? [ 92 ]

Article 1621 of the Civil Code of Québec provides as follows: 1621. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose . Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that

the payment of the reparatory damages is wholly or partly assumed by a third person . [ 93 ] Such damages may be awarded to discourage negligence such as the one described here from being repeated. An order for punitive damages is not intended to compensate the victim, but to dissuade wrongdoing. [ 94 ] In the case at bar, there was a breach of the plaintiff’s right to security and inviolability (

section 1 of the Quebec Charter of Human Rights and Freedoms ) [35] and the provisions of the Consumer Protection Act referred to above. The following provisions therefore apply: Quebec Charter of Human Rights and Freedoms : 1. Every human being has a right to life, and to personal security , inviolability and freedom . 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom .

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages . Consumer Protection Act: 272. If the merchant or the manufacturer fails to fulfil an obligation imposed on him by this Act, by the regulations or by a voluntary undertaking made under

section 314 or whose application has been extended by an order under

section 315.1, the consumer may demand, as the case may be, subject to the other recourses provided by this Act, (

a) the specific performance of the obligation ; (

b) the authorization to execute it at the merchant’s or manufacturer’s expense ; (

c) that his obligations be reduced ; (

d) that the contract be rescinded ; (

e) that the contract be set aside; or (

f) that the contract be annulled , without prejudice to his claim in damages, in all cases. He may also claim punitive damages . (Emphasis added.) [ 95 ] What is particularly shocking here is that the recipe for the tartare containing the peanut butter was prepared in October/November 2015, when the contract was signed, at least five weeks before the Christmas Eve party was held on December 24. [ 96 ] That the defendant failed to simply verify the tartare recipe throughout this entire period indicates a guilty recklessness with respect to the plaintiff. [ 97 ] In Daigle c .

Monsieur Steerburger, [36] a decision in which I find many similarities with the case at bar, Labbé J. awarded $1,500 in punitive damages as follows: [ translation ] [21] Given that there was a violation of the plaintiff’s physical inviolability, a right guaranteed under the Charter of Human Rights and Freedoms , and the evidence reveals that this violation was unlawful and intentional; [22] Given the recklessness on the part of the defendant’s employee with respect to the highly probable consequences of her negligence; [23] The Court considers it reasonable to award the sum of $1,500 in punitive damages. [ 98 ] I find this conclusion is well suited to this matter and also award $1,500. [ 99 ] FOR THESE REASONS, THE COURT: [ 100 ] GRANTS the action in part; [ 101 ] CONDEMNS Holiday Inn Laval Montréal to pay Marie-Eve Bélanger Corbeil the sum of $5,577.82, with interest at the legal rate plus the additional indemnity in

article 1619 of the Civil Code of Québec as of February 5, 2016; [ 102 ] CONDEMNS Holiday Inn Laval Montréal to pay Marie-Eve Bélanger Corbeil the sum of $1,500 in punitive damages, with interest at the legal rate as of the date of this judgment until payment in full; [ 103 ] THE WHOLE, with legal costs of $200 to be reimbursed to the plaintiff and the Court attendance fees for the following witnesses: Sébastien Marette: $76.56 Pauline Bachant: $82.84

__________________________________ RICHARD LANDRY, J.C.Q. Hearing date: May 29, 2017