2021 QCCA 303, 2021 QCCA 303

Brahm c. G.C. 2021 QCCA 303 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029124-203 (500-17-099218-177) DATE: February 18, 2021 BEFORE THE HONOURABLE BENOÎT MOORE, J.A. DR. EVAN BRAHM APPLICANT – Defendant v. G.C.

RESPONDENT – Plaintiff JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment of the Superior Court, District of Montreal, dated June 15, 2020 (the Honourable Madam Justice Johanne Brodeur), [1] that orders him to pay the respondent $20,000 in punitive damages as a result of a letter he prepared in the respondent’s divorce file. [ 2 ] The applicant argues that the judgment under appeal risks bringing the law into disrepute in that it lowers the burden required for obtaining punitive damages under s. 49 of the Charter of Human Rights and Freedoms [2] (the “Charter”).

More specifically, he raises five grounds of appeal: (1) the respondent’s pleadings do not contain any clear allegation of a violation of a Charter-protected right; (2) the judge relied on purely subjective factors to conclude that there had been interference with dignity and psychological integrity, contrary to Supreme Court jurisprudence; [3] (3) the judge did not determine the intentional nature of the interference because she merely concluded that the applicant could not have been unaware of the effects that his report would have on the granting of custody of the children and not on the respondent’s integrity; (4) there was a lack of evidence regarding the applicant’s patrimonial situation; and (5) the claim is, in fact, based on defamation and was prescribed under

article 2929 of the Civil Code of Québec . [ 3 ] This application for leave to appeal is subject to the criteria of

article 30, para. 2 of the Code of Civil Procedure . As such, the applicant must establish that the: “[…] matter at issue is one that should be submitted to that Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting judicial decisions”. [ 4 ] The requirements of

article 30 C.C.P. suppose that there is a serious problem which, often, goes beyond the mere interests of the parties [4] and illustrate that the essential purpose of the Court is to “servir l’élaboration du droit et non pas le justiciable dont l’appel met en cause des intérêts, par définition, relativement minims […]” . [5] Similarly, these requirements imply that a mere allegation of error on the part of the judge is insufficient to warrant leave to appeal. [6] [ 5 ] In the matter at hand, the applicant contends that the appeal goes beyond the mere interests of the parties and should be authorized because the judgment under appeal lowers the burden for obtaining punitive damages under s. 49 of the Charter . [ 6 ] The applicant has not convinced me that this is the case.

The judge properly identified the applicable legal principles, both as regards the existence of interference with integrity or dignity and as regards its intentionality. She then assessed the evidence in the record and applied those principles to the facts of the case.

This involves the exercise of discretion that commands the deference of this Court, whose role is not to substitute its opinion for that of the judge. [ 7 ] As to the lack of evidence regarding the applicant’s patrimonial situation, given the circumstances as a whole and the amount of the punitive damages awarded, which, all things considered, is relatively modest, I see no error warranting intervention.

Here again, this involves the judge’s exercise of her ability to award punitive damages without such evidence in a specific case. [7] With respect to prescription, not only was this argument not raised in first instance nor was the judge entitled to raise it of her own motion (art. 2878 C.C.Q. ), but I am of the view that, under the circumstances, this issue alone does not warrant leave being granted. [ 8 ] Without commenting on the merits of the judge’s reasoning as a whole, which is not the applicable test for an application for leave to appeal, I am therefore of the opinion that, given the standard of review and given the absence of a palpable error, the appeal is

destined to fail. Likewise, the guiding principles of procedure, particularly the principle of proportionality, do not support leave being granted. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the application for leave to appeal, with legal costs. BENOÎT MOORE, J.A. Mtre Aysem Dalli Mtre Sébastien Cusson McCARTHY TÉTRAULT For the applicant Mtre Muriel Librati Mtre Amanda Emanuele TEITELBAUM LIBRATI For the respondent Date of hearing: February 10, 2021