2010 QCCA 2355, 2010 QCCA 2355

Unofficial English Translation Canada (Procureur général) c. Gosselin 2010 QCCA 2355 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-018977-082 (550-05-009651-004) RECORD OF PROCEEDINGS DATE: DECEMBER 17, 2010 CORAM: THE HONOURABLE ANDRÉ FORGET, J.A. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. APPELLANT(

S) COUNSEL ATTORNEY GENERAL OF CANADA Mtre Marie-Josée Bertrand Mtre Sébastien Gagné JOYAL LEBLANC RESPONDENT(S COUNSEL GABRIEL GOSSELIN Mtre Roger Paradis RPGL AVOCATS COUNSEL

On appeal from a judgment rendered on July 17, 2008, by the Honourable Mr. Justice Martin Castonguay of the Superior Court, District of Hull. NATURE OF THE APPEAL : LIABILITY Clerk: MARC LEBLANC Room: PIERRE-BASILE-MIGNAULT HEARING File continued from December 16, 2010, for judgment. Judgment rendered – see page 3. Marc Leblanc Clerk PER CURIAM JUDGMENT

[1] The appellant appeals from a judgment that concluded that the respondent’s employer, the RCMP, had committed a fault bysuspending him with pay on April 3, 1997 and that awarded him $15,000 in moral damages and $50,000 in punitive damages. I [2] The respondent's suspension with pay occurred after RCMP management received an internal investigation report confirmingthat the respondent was involved in an intimate relationship with a source, which, without authorization, constituted a breach of the codeof ethics applicable to constables.

The report painted a rather negative picture of the respondent and mentioned that other members of theRCMP seemed to be aware of the relationship, which gave rise to a second internal investigation. Meanwhile, in April of 2007, theRCMP suspended the respondent with pay. II [3] The suspension was ordered pursuant to

section 12.1 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, by adelegate of the Commissioner, the whole in accordance with the provisions of the RCMP Administration Manual, an internal directivegoverning all aspects of the exercise of the power to suspend. [4] The appellant maintains that such a decision is not a disciplinary sanction, but a temporary administrative measure,preventive in nature, subject to a detailed procedure, and whose conduct constitutes a discretionary act akin to

an act of public authorityor a quasi-judicial act. Consequently, a decision to suspend a constable can engage the liability of the Federal Crown only if it is done inbad faith by the Commissioner or his delegate, which the evidence does not reveal in the case at bar. III [5] The Court holds that the RCMP decision to suspend the respondent constitutes an operational act according to case law(Québec (Procureur général) v. Deniso Lebel inc., (QC CA), [1996] R.J.Q. 1821 (C.A.); Laurentide Motels Ltd. v.Beauport (Ville), (SCC), [1989] 1 S.C.R. 705; Just v. British Columbia (Minister of Transportation and Highways), (SCC), [1989] 2 S.C.R. 1228) and not a political act or

an act of public authority. [6] It constitutes a human resources management measure. Since it is not argued that control of this measure is within theexclusive jurisdiction of an adjudicator or the like, as may be the case for a disciplinary action under the Royal Canadian Mounted PoliceAct, it follows that the Superior Court had jurisdiction to determine if such a decision by the employer was wrongful, as the respondentalleged. [7] The Federal Crown may be liable if a fault, within the meaning of

article 1457 C.C.Q., is committed by the RCMP, pursuantto

section 2, paragraph (a), definition of “liability” and

section 3 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50.

IV [8] The trial judge, after hearing many members of the RCMP at the time, including the internal investigator, wrote: [translation] [188] With regard to the process that led to the suspension, the Court has many questions concerning the good faith of the partiesinvolved. [189] How is the Court to interpret the fact that the investigator Larin met with all the officers involved in the Accolade operation,except Clément, the officer in charge, the one who could have shed light on the situation? [190] How is the Court to interpret the fact that Larin, to lend more weight to the conclusions in his report, described Gosselin as beingvague and aggressive, when the evidence shows the exact opposite? [191] How is the Court to interpret the fact that Dubé hid from Gosselin his intention to launch a disciplinary inquiry so as not tojeopardize the outcome of the Accolade operation? [192] The only logical answer to all these questions is that Gosselin was made the sacrificial lamb for the RCMP’s good reputation. [193] The only solution that the RCMP could come up with was to place the blame for a collective failure on the shoulders of Gosselin. [194] Moreover, why did the allegations focus only on Gosselin’s relationship with Martel and disregard his admitted and provendisobedience of Dubé’s orders to no longer have any contact with Martel? [195] For these reasons, the Court deems that Gosselin’s suspension was ill-intentioned and that its purpose was other than to apply theAct.

Consequently, the RCMP is liable towards Gosselin and there is no reason to grant it the immunity provided in sections 3 and 8 ofthe Act. [9] This conclusion is purely factual, and the appellant does not show that it contains a palpable and overriding error. Instead,the appellant asks us to reinterpret the evidence. [10] In the circumstances, awarding moral damages of $15,000 is supported by the evidence and does not constitute a reviewableerror. V

[ 11 ] As for the awarding of punitive damages of $50,000 for violating

section 7 of the Canadian Charter of Rights and Freedoms , which guarantees the right to autonomy, including privacy, the appellant has grounds to argue that it constitutes an error. [ 12 ] In addition to the fact that

section 7 of the Canadian Charter was neither raised nor argued at trial, nothing in the evidence suggests that the Commissioner’s delegate, in exercising the power to suspend, intentionally intended to infringe a right of the respondent guaranteed by the Canadian Charter , and the judgment appealed from contains no finding of fact substantiating such an infringement. Consequently, there are no grounds for awarding punitive damages.

VI [ 13 ] For these reasons, the Court: [ 14 ] ALLOWS the appeal, in part, without costs; [ 15 ] SUBSTITUTES for the amount of $65,000 mentioned in paragraph 229 of the judgment appealed from, an amount of $15,000. ANDRÉ FORGET, J.A. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A.