2015 QCCA 1426, 2015 QCCA 1426

Fortier c. Québec (Procureure générale) 2015 QCCA 1426 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC MONTRÉAL REGISTRY Nos. 500-09-023376-130 (500-17-058817-100) DATE: September 11, 2015 CORAM: THE HONOURABLE JACQUES DUFRESNE J.A. MANON SAVARD J.A. JEAN-FRANÇOIS ÉMOND J.A. BRUNO FORTIER APPELLANT – Plaintiff v.

ATTORNEY GENERAL OF QUÉBEC RESPONDENT – Defendant JUDGMENT [ 1 ] The appellant is appealing from a judgment rendered on February 4, 2013 by the Superior Court, District of Montréal (the Honourable Louis-Paul Cullen J.S.C.), [1] which allowed in part his action for damages and condemned the respondent to pay him $5000 in moral damages and $5000 in punitive damages. [ 2 ] For the reasons of Émond J.A., with which Dufresne J.A. concurs, and for the concurring reasons of Savard J.A., THE COURT : [ 3 ] ALLOWS the motion for leave to amend the inscription in appeal and AUTHORIZES the appellant to file the amended inscription in appeal of February 28, 2013; [ 4 ] ALLOWS the appeal in part, with costs; [ 5 ] QUASHES the judgment in first instance and AMENDS its conclusions so that they read as follows: CONDEMNS the defendant to pay the plaintiff $50 000 in moral damages, with interest at the legal rate and the additional indemnity as of summons; CONDEMNS the defendant to pay the plaintiff $25 000 in punitive damages, with interest at the legal rate and the additional indemnity as of service; WITH COSTS.

JACQUES DUFRESNE J.A. MANON SAVARD J.A. JEAN-FRANÇOIS ÉMOND J.A. Bruno Fortier Representing himself Mtre. Marie-Ève Mayer Mtre. Michel Déom

Direction générale des affaires juridiques et législatives Bernard, Roy (Justice – Québec) For the respondent Date of hearing: November 5, 2014 REASONS OF ÉMOND J.A. OVERVIEW [ 6 ] In March 2008, the ministère des Relations internationales (MRI) recalled and replaced the appellant, who was Québec’s Delegate General in New York.

According to the official version, the MRI essentially alleged that the appellant violated a directive from the Deputy Minister prohibiting him from modifying the working conditions of a subordinate employee who, a few months earlier, had filed an “informal” sexual harassment complaint against him. [ 7 ] A little over two years after he was replaced, the appellant instituted an action for damages against the respondent, the Attorney General of Québec (AGQ). [ 8 ] The appellant blamed the MRI for unjustly replacing him based on unfounded allegations of sexual harassment, without giving him an opportunity to explain himself.

He contended that the MRI had committed an abuse.

He also alleged that the MRI publicized his recall and evicted him from the official residence in New York, his only home at the time, and even prevented him from retrieving his personal property and effects himself, entrusting that task to third parties. [ 9 ] On the basis of the faults attributed to the MRI, the appellant claimed an indemnity of $400 000 from the AGQ for [TRANSLATION] “his loss of earnings, given the public, abusive and vexatious nature of his dismissal”, and another $400 000 for defamation, as well as moral damages ($100 000) and punitive damages ($300 000) for the abusive termination of his employment contract.

He also claimed various expenses incurred ($55 650). [ 10 ] However, the appellant did not contest the sufficiency of the indemnity paid to him in lieu of a notice of termination. [2] [ 11 ] The Superior Court dismissed almost all of the appellant’s claims. The judge believed that the appellant was replaced in accordance with the conditions set forth in the order appointing him as Delegate General.

The judge accepted that the MRI replaced him on grounds of insubordination, as he disregarded a directive from the Deputy Minister prohibiting him from modifying the administrative responsibilities of the employee who alleged that she was the victim of sexual harassment. [ 12 ] The judge was also of the opinion that the MRI and its representatives did not do anything to defame the appellant, particularly since he considered the claim prescribed. [ 13 ] However, the judge felt that, by preventing the appellant from returning to the official residence to retrieve his personal property and effects, the MRI acted with serious disregard, with full knowledge of the harmful consequences of that action, thereby violating the appellant’s right to privacy protected by the Charter of human rights and freedoms [3] (the Charter).

Therefore, the judge condemned the AGQ to pay the appellant $5000 in moral damages and $5000 in punitive damages. [ 14 ] In appeal, the appellant maintained all of his claims. [ 15 ] In my view, the judge was justified in concluding that the MRI could replace the appellant. The MRI did not have to offer any grounds to justify its decision. The MRI’s only obligation was to give three months’ notice or pay an indemnity in lieu of notice.

In that regard, the debate on insubordination does not appear to be a deciding factor, particularly since the MRI did not contend that it was a removal or a dismissal for cause. [ 16 ] I am also of the opinion that the judge was justified in concluding that, by prohibiting the appellant from returning to the official residence, which was his home, the MRI acted excessively and unreasonably and thereby committed an abuse justifying the award of compensatory damages. The same is true of his conclusion that the decision violated the appellant’s fundamental rights.

I believe that conclusion is free from errors. [ 17 ] However, I feel that, by awarding the appellant an indemnity of $5000 in moral damages, the judge unduly downplayed the abuse he suffered.

In addition, I am of the opinion that $5000 in punitive damages does not reflect the gravity of the violation of the appellant’s fundamental rights and the need to punish, deter and denounce that violation. [4] Like all citizens, the AGQ is subject to the Charter . [ 18 ] By prohibiting the appellant from returning to the official residence, the MRI not only violated his fundamental rights, it also threw the second highest-ranked Québec diplomat out onto the streets, without notice, leaving him in dire straits, with neither home nor income.

That being the case, the MRI added to and maybe even created the controversy by arousing pernicious media speculation respecting the appellant’s integrity, which had a significant impact on him. [ 19 ] The appellant’s mental health problems, which have had major consequences on his personal, social and professional life, stem largely from that unjustified and abusive action. CONTEXT

The employment contract [ 20 ] In June 2007, the gouvernement du Québec appointed the appellant as Québec’s Delegate General in New York. At the time, the appellant had successfully held a management position with the Delegation for three years as director of economic affairs. Order in Council 415–2007, [5] which officially appointed him as Delegate General, provided for his working conditions, including the situations that could lead to the termination of his contract, as well as the indemnities payable to him, if applicable: [TRANSLATION] 5.

TERMINATION This undertaking may be terminated in accordance with the following provisions: 5.1 Resignation Mr. Fortier may resign from his position as Québec’s Delegate General in New York, without penalty, by providing three months’ written notice. A copy of the notice of resignation must be sent to the Associate Secretary General for Senior Positions of the Ministère du Conseil exécutif. 5.2 Suspension The Deputy Minister may suspend Mr. Fortier for cause. 5.3 Removal Mr.

Fortier also consents to the government’s revoking this undertaking at any time, with no prior notice or indemnity, in the event of embezzlement, maladministration, gross fault or any similarly serious reason, with the government bearing the burden of proof . 6. RECALL AND REPLACEMENT 6.1 Recall The Minister of International Relations may recall Mr. Fortier at any time for consultation. 6.2 Replacement The government may replace Mr. Fortier at any time, subject to three months’ prior notice . In such a case, the government will pay Mr.

Fortier any amount owed him for his work and, if applicable, transition allowance calculated under

section 7. 7. TRANSITION ALLOWANCE At the end of his mandate as Québec’s Delegate General in New York, Mr. Fortier will receive a transition allowance, if applicable, subject to the terms and conditions determined in

section 13 of the policies on management of incumbents of senior positions appointed by the government’s prerogative, enacted by Order 1488-96 of December 4, 1996, taking into account the changes that were or may be made to it . [Emphasis added.] The dispute [ 21 ] As soon as he took office, the appellant began preparing a plan to restructure and classify the Delegation’s human resources. His intention was to downsize the Delegation in order to reduce its operating costs.

He considered disposing of the services of several employees, including the Delegation’s special events attaché, whose responsibilities included managing the official residence, that is, the Delegate General’s home. [ 22 ] In early October 2007, while in the presence of the special events attaché and her administrative assistant, the appellant made what was an innocuous gesture, but one that would end up having serious consequences.

Because of a physical condition he had been suffering from for some time—itching in the genital area due to a recurrent skin irritation caused by scarring from a removed tumor—the appellant instinctively scratched his testicles. [ 23 ] Although it was a banal movement from the appellant’s point of view, the attaché interpreted it differently and concluded that it was an obscene masturbatory gesture. [ 24 ] Incidentally, the attaché reported the incident orally to the Delegation’s director of administration, but did not file an official complaint. [ 25 ] Although he considered the attaché’s allegations serious, the director of administration did not report the situation to the people in charge of the MRI in Québec, or to the appellant.

However, a few weeks later, he changed his mind and informed the appellant of the attaché’s allegations against him. Although the accusation was very serious, the appellant and the director of administration agreed not to inform the authorities of the Ministère in Québec.

[ 26 ] In early November 2007, the appellant submitted a first draft of his restructuring plan to the Deputy Minister. Among other things, that plan provided for the elimination of the special events attaché’s position. The elimination of that position was not unexpected, as the role played by the attaché had been questioned for some time.

In 2005, in a confidential report submitted to the Delegate General at the time, two MRI managers recommended downgrading that position, which they considered to be overvalued. [ 27 ] In the following weeks and months, the appellant and the MRI representatives in Québec communicated several times regarding the restructuring plan. The appellant was told that the plan had shortcomings. The concerns pertained to the Delegation’s legal obligations in relation to the projected elimination of positions, including the attaché’s position.

The appellant was thus informed that the restructuring plan could not be implemented without the authorization of the Ministère’s highest authorities. [ 28 ] During those conversations, the appellant made no mention of the “informal” complaint by the special events attaché, even though his restructuring plan provided for the elimination of her position. [ 29 ] In late December 2007, MRI representatives in Québec heard rumours about the appellant making certain inappropriate gestures in the presence of a Delegation employee, referring to the incident that took place in October in the presence of the attaché and her secretary.

An internal investigation was initiated, which revealed to the MRI that the attaché had filed an “informal complaint” of sexual harassment against the appellant in early October 2007. [ 30 ] Consequently, the people in charge of the investigation contacted the three people involved to obtain their version. The appellant denied having made any masturbatory gestures. His explanations were to the effect that there had been a misunderstanding. His version was corroborated by the only other person present during the incident, the attaché’s administrative assistant.

The assistant denied any inappropriate gestures toward her or the attaché on the part of the appellant. [ 31 ] Although the MRI had the versions of the persons present during the alleged incident, it did not take a position. Its representatives said they were unable to decide the issue, even though no complaint had been filed. [ 32 ] On February 7, 2008, the Deputy Minister of the MRI met with the appellant in Québec. On that occasion, they addressed, in particular, the attaché’s “informal” complaint.

In an attempt to resolve the problem, the Deputy Minister asked the appellant to cooperate in finding a new position for the attaché, so as to limit contact between him and her. He also asked the appellant not to do anything that could be perceived by the attaché as criticism toward her. [ 33 ] Shortly after that meeting, the MRI was informed that the attaché intended to file an official complaint. That situation led the MRI to retain the services of a consultant specializing in human resources. She was asked to identify solutions to resolve the problem.

Unfortunately, as I will explain, that step did not make it possible to resolve the dispute, as the attaché refused any change in position. Consequently, she and the appellant had to remain in direct contact. [ 34 ] On February 28, 2008, after he was informed of the attaché’s refusal to hold a new position, the appellant modified her duties in part. He withdrew from her the supervision of the personnel of the official residence, that is, the place where he lived, his home. [ 35 ] From that moment, the attaché was absent from work due to illness. [ 36 ] In addition, she filed a psychological harassment complaint.

Although that complaint referred to the gestures made by the appellant in October 2007, which the attaché now described as gross indecency, it did not directly concern that event. Rather, it concerned the appellant’s decision to modify her duties, and the resulting defamation.

The attaché identified the allegations against the appellant as follows: [TRANSLATION] Events: 1) Unilateral decision to modify my duties without any grounds related to my abilities; 2) Modification of my duties in a manner that did not comply with my job description; 3) Defamation, by sending a notice to all employees of the Québec Government Office in New York and the Québec Government Office in Washington; [ Full transcript. ] [ 37 ] In actuality, the attaché never filed a sexual harassment complaint in relation to the events of October 2007.

She also withdrew her psychological harassment complaint a few months after the appellant was replaced. [ 38 ] On March 11, 2008, the human resources consultant sent to the Delegation to find a solution reported to the Deputy Minister. She said that, in her opinion, the “informal” sexual harassment complaint regarding the events that took place in October 2007 did not appear founded.

However, she believed that the circumstances of the case—the modification of the attaché’s duties—could make the psychological harassment complaint admissible. [ 39 ] Further to that report, the Deputy Minister recommended to the Minister of International Relations that she recall the appellant. The Minister accepted his arguments. [ 40 ] Consequently, the Deputy Minister summoned the appellant to Québec for a meeting, without specifying the topics that would be addressed. [ 41 ] That meeting was held on March 14, 2008.

[ 42 ] On that occasion, the Deputy Minister alleged that the appellant had modified the attaché’s duties, even though he was prohibited from doing so. He therefore invited him to resign from his functions. Since the appellant refused to resign, the Deputy Minister replaced him in accordance with clause 6 of the Order. He took back the appellant’s diplomatic passport and prohibited him from returning to the official residence, even for the purpose of retrieving his personal effects. [ 43 ] That replacement placed the appellant in a distressing and painful situation.

In just a few moments, he found himself with neither home nor income, deprived of all his personal property and effects. He had to seek housing from acquaintances and purchase clothes and necessities. He no longer had access to a computer or to his email. His cell phone service was quickly terminated. [ 44 ] In addition, he had to deal with the significant media coverage caused by his sudden and unexpected replacement. [ 45 ] In July 2008, several months after the appellant was recalled and replaced, the MRI finally agreed to reimburse the expenses he had incurred as Delegate General, which totalled $5662.76.

The MRI also paid him the indemnity in lieu of three months’ notice and the two-week transition allowance, which should have been paid to him when he was replaced, in accordance with Order in Council 415-2007 establishing his working conditions. [ 46 ] On June 2, 2010, two years after he was replaced, the appellant instituted an action for damages against the AGQ. He alleged that the MRI dismissed him in an abusive manner, based on an unfounded harassment complaint, without giving him an opportunity to explain himself.

He also alleged that the MRI acted in bad faith during his recall by preventing him from returning to the official residence to retrieve his personal effects and by publicizing his dismissal. [ 47 ] As I mentioned in the introduction, because of those faults and the MRI’s alleged abuse, the appellant claimed an indemnity for lost earnings from the AGQ, given the public, abusive and vexatious nature of his dismissal ($400 000), as well as damages for defamation ($400 000), moral damages ($100 000) and punitive damages ($300 000). He also asked to be reimbursed for various expenses totalling $55 650.

The trial judgment [ 48 ] The trial judge dismissed almost all of the appellant’s claims. The judge believed that the appellant was replaced in accordance with the conditions set forth in Order in Council 415-2007 appointing him as Delegate General, and added that there had been no abuse.

The judge accepted that the MRI replaced the appellant on grounds of insubordination, as he modified the administrative responsibilities of the attaché despite having been told not to do so by the Deputy Minister. [ 49 ] In doing so, the judge rejected the appellant’s contention that he had been recalled from his position because of the harassment complaint filed by the attaché, with no opportunity to explain himself.

In that regard, he believed that the appellant’s position was not credible and contradicted what he had publicly acknowledged before the Committee on Public Administration one month after his replacement, i.e. that he had been replaced on grounds of insubordination. [ 50 ] Moreover, the judge believed that the MRI representatives, including the Deputy Minister, made no comments aimed at defaming the appellant. On the contrary, he believed that the appellant himself contributed to media speculation about his replacement by giving an interview to a journalist, [6] in which he disclosed sensitive information.

In short, the judge found that the appellant was the architect of his own misfortune. [ 51 ] Nevertheless, the judge allowed the appellant’s two requests regarding the MRI’s decision to prohibit him, without notice, from accessing the official residence, if only to retrieve his personal property and effects himself. Because of that separate fault, the judge awarded him an indemnity of $5000 in moral damages and $5000 in punitive damages for violations of his right to privacy.

The grounds of appeal [ 52 ] In appeal, the appellant essentially argued three grounds. [7] [ 53 ] First, he contended that the trial judge committed an error of law by concluding that there was a serious reason justifying a dismissal for cause within the meaning of

article 2094 of the Civil Code of Québec . He argued that, at the time he was recalled and replaced, the MRI was not aware that he had modified the duties of the special events attaché, so that his dismissal could not have been due to a question of insubordination, as the Deputy Minister falsely stated. [ 54 ] Secondly, the appellant contended that the judge committed an error of law by applying the one-year prescription in

article 2929 C.C.Q. to his claim for defamation. According to the appellant, that short prescription should not apply to defamation made as part of an abusive dismissal. However, he did not contest the judge’s finding of fact that the publicizing of his replacement was not the fault of the authorities of the MRI. [ 55 ] Lastly, the appellant believed that the judge committed an error of law by failing to rule on the damages claimed. He also felt that the indemnities awarded to him as moral and punitive damages were insufficient.

QUESTIONS IN DISPUTE [ 56 ] For the purposes of the appeal, I will phrase the questions to be resolved as follows: 1. Did the judge commit an error of law by accepting that the MRI replaced the appellant on grounds of what they considered insubordination, i.e. the fact that he modified the duties of the employee who had filed an “informal” sexual harassment complaint against him? 2. Was the replacement of the appellant abusive?

In other words, was the abuse suffered by the appellant limited to the fact that he was prohibited from accessing the official residence to retrieve his personal property and effects, as decided by the judge?

3. Do the moral damages awarded to the appellant constitute adequate compensation for his injury? Do the punitive damages reflect the gravity of the violation of his fundamental rights? Do they take into account the objectives of punishment, deterrence and denunciation? 4. Does the one-year extinctive prescription in

article 2929 C.C.Q. apply to the appellant’s claim for damages for defamation due to the MRI’s comments about certain sensitive facts related to his dismissal? 5. If that claim is not prescribed, is the appellant entitled to an indemnity for defamation? ANALYSIS 1. Did the judge commit an error of law by accepting that the MRI replaced the appellant on grounds of what they considered insubordination, i.e. the fact that he modified the duties of the employee who had filed an “informal” sexual harassment complaint against him? [ 57 ] The judge accepted that the MRI replaced the appellant for two reasons.

First, he failed to inform the highest authorities of the MRI that an “informal” sexual harassment complaint had been filed against him. Second, he decided to modify part of the attaché’s duties after agreeing with the Deputy Minister that he would cooperate in finding an amicable solution. It is worth citing at length judge’s comments on that question: [TRANSLATION] [153] On Friday, March 14, 2008, at 2 p.m., Mr. Fortier met with the Deputy Minister at his office. [154] According to Mr.

Fortier’s testimony, the Deputy Minister told him that the MRI had concluded that he had sexually, psychologically and administratively harassed Ms. M…, that, rather than being dismissed, he would be recalled due to his decision to modify Ms. M…’s duties without authorization, and that chaotic management of the Delegation on his part would be used as a pretext for his recall. [155] It is difficult to believe that Mr. Cloutier told Mr. Fortier that the MRI had concluded “sexual, psychological and administrative harassment” had taken place, since there had been no formal investigation, Mtre.

Chabot did not reach those conclusions, and Mr. Fortier’s testimony departed significantly from his own opening statement of April 2008 before the Committee on Public Administration. [156 ] Instead, the Court accepts that, on March 14, 2008, Mr. Fortier was informed by the Deputy Minister that he would be recalled due to the breach of trust resulting from the fact that he modified Ms. M…’s duties without authorization, and that the recall would publically be attributed to chaotic management on his part.

The policy in fact imposes confidentiality with regard to the complaint . . . . [168] Before the Québec National Assembly, the Minister stated that Mr. Fortier had been replaced for administrative reasons: since 2008, he wanted to make changes that were not authorized by the MRI and was no longer able to rally the personnel behind him. . . . [179] On April 16, 2008, before the National Assembly’s Commission on Institutions, the Minister contended that the decision to recall Mr. Fortier was [TRANSLATION] “truly the result of an administrative problem”.

Deputy Minister Cloutier then gave his version of the facts, which he substantially reiterated under oath later that month before the National Assembly’s Committee on Public Administration. . . . [182] After being sworn, Mr. Fortier read a statement that corroborated the Deputy Minister’s version with regard to the ground given for his recall, which confirmed his insubordination and the impact of his dispute with Ms. M… on the Delegation: [TRANSLATION] 3. The ground invoked orally by Mr.

Cloutier to justify my immediate recall and the suspension of my ties with Québec’s representation in New York, and with its personnel, was an action I took concerning an employee of the General Delegation: on February 28, 2008, I withdrew part of that person’s duties, whereas she had filed a psychological harassment complaint against me and that complaint was the subject of an administrative investigation . [Emphasis in the original.] . . . . . . [242] By choosing not to immediately inform the MRI of Ms.

M…’s allegations against him, then hastily insisting on terminating her employment, the appellant put his personal interests above those of the Delegation and the MRI. Therefore, he seriously failed in his duties of transparency and loyalty to his employer . [243] Later, by unilaterally modifying the duties of Ms. M… after agreeing with the Deputy Minister to cooperate with the MRI in finding an amicable solution (as required by the policy, which prohibited demanding a decision on the merits of the complaint), and by continuing to seek Ms.

M…’s dismissal or transfer, the appellant disregarded the authority of his hierarchical superior, who was now justified in believing that he could no longer count on him . [244] Deputy Minister Cloutier did not decide on the recall because he believed that Ms. M…’s complaint was founded, which he could

not have concluded in light of the information he had been given and before a real investigation was completed. He took that decision because he had lost his trust in Mr. Fortier, who refused to genuinely cooperate in improving an unhealthy work atmosphere that undermined the functioning of the Delegation.

Under the Act respecting labour standards , the Deputy Minister, as the employer’s representative, had an obligation to prevent and put a stop to all possible harassment. [References omitted – Emphasis added.] [ 58 ] In appeal, the appellant contended that the grounds invoked by the Deputy Minister in his sworn statement before the Committee on Public Administration in April 2008—the insubordination he displayed by modifying the duties of the employee who had filed an informal harassment complaint against him—were merely pretexts.

He invited the Court to set aside that statement and review all the evidence in order to reassess it and draw its own inferences. [ 59 ] Moreover, although he did not contest the sufficiency of the indemnity awarded to him in lieu of three months’ notice of termination or of the two-week transition allowance, the appellant nonetheless argued that the judge erred by concluding that the grounds invoked by the MRI to justify his replacement were equivalent to serious reasons justifying a dismissal within the meaning of

article 2094 C.C.Q., which does not require a notice of termination. [ 60 ] I believe that the Court cannot intervene on those questions. [ 61 ] The judge was justified in allowing the Deputy Minister’s sworn statement before the Committee on Public Administration, particularly since the appellant consented to the filing of that statement, given the Deputy Minister’s inability to testify at the hearing due to health problems. As for the judge’s decision to give great probative value to that statement, which was made at the time of the events, nothing makes it possible to review it.

Although I acknowledge that the reasons invoked in that statement were not the only ones taken into account by the MRI to proceed with the replacement—the evidence showed that, in order to convince the Minister that his decision was well founded, the Deputy Minister mentioned the rumors about the appellant, which were questionably founded—the appellant raised no overriding error that could call into question the merits of that finding of fact. [8] [ 62 ] Moreover, the appellant is wrong to contend that the judge concluded he was dismissed for cause within the meaning of

article 2094 C.C.Q. In my opinion, the judge did not rule on that question. At no point did he state that the replacement constituted a dismissal for serious reasons within the meaning of

article 2094 C.C.Q., which would have relieved the MRI of its obligation to provide a notice of termination. The appellant prompted that conclusion by interpreting the judgment. I would add that, by opting for replacement [9] rather than suspension or removal for cause, [10] the MRI did not have to offer any grounds to justify its decision.

Its only obligation was to pay the indemnity in lieu of three months’ notice and the two-week transition allowance, as provided for in the order, and to ensure that it did not act in a way that was detrimental to the appellant, thereby committing an abuse. [ 63 ] That said, it is true that the judge sometimes implied that, in his opinion, the allegations against the appellant were serious.

That was the case when he stated that the appellant, by not informing the MRI of the attaché’s allegations and continuing to seek the elimination of her position as provided for in the restructuring plan, failed in his duties of transparency and loyalty.

That was also the case when he stated that the appellant disregarded authority by relieving the attaché of her responsibilities with regard to the official residence. [ 64 ] However, in my opinion, that criticism could not have justified a dismissal for cause or a removal within the meaning of Order in Council 415-2007, which set the appellant’s working conditions. 2. Was the replacement of the appellant abusive?

In other words, was the abuse suffered by the appellant limited to the fact that he was prohibited from accessing the official residence to retrieve his personal property and effects, as decided by the judge? [ 65 ] In his judgment, the judge analyzed the question of the abuse of right invoked by the appellant from two angles. [ 66 ] From one angle, the judge evaluated the behaviour of the authorities of the MRI, taking into account the declarations of the Deputy Minister and the Minister before the Committee on Public Administration following the replacement.

Although he acknowledged that certain statements turned out to be inaccurate, he concluded that there was no fault. In addition, he believed that the appellant’s claim for defamation was prescribed. He based his conclusion on

article 2929 C.C.Q., which states that an action for defamation is prescribed by one year. [ 67 ] From the other angle, the judge examined the circumstances of the appellant’s recall and replacement. In that regard, he accepted that the authorities of the MRI committed a separate fault at the time of the recall. The judge was of the opinion that the untimely recall from New York, and the decision not to let the appellant return to the official residence to retrieve his personal property and effects, constituted an abuse.

According to the judge, it was the only fault resulting from an abuse that could be attributed to the authorities of the MRI. [ 68 ] The judge’s findings of fact regarding the abuse deserve deference. Although I do not share his

interpretation of the evidence as regards the management of the “informal” sexual harassment complaint, the appellant raised no overriding error that would authorize me to intervene.

As I have just explained, the Court’s role is not to re-examine the evidence, reassess the credibility of the witnesses or substitute its opinion for that of the judge. [ 69 ] Nevertheless, I believe that, by awarding an indemnity of $5000 in moral damages and $5000 in punitive damages, the judge downplayed the abuse committed by the authorities of the MRI by prohibiting the appellant from returning to the official residence and failing to give him the notice to which he was entitled, or an indemnity in lieu of notice, as soon as he was replaced.

By doing so, the MRI threw the second highest-ranked member of Québec’s diplomatic corps out onto the streets. [ 70 ] In my opinion, the judge downplayed the gravity of the fault resulting from that abuse, as well as the resulting injury. [ 71 ] That said, before analyzing the assessment of the moral and punitive damages, I believe a brief comment should be made.

[ 72 ] On several occasions, the judge rejected the appellant’s positions for reasons of credibility. It is obvious that he gave little credibility to the appellant’s testimony. In fact, he clearly indicated so at the beginning of his judgment. While he acknowledged that the appellant sustained a terrible shock from a professional standpoint, he made the rather severe observation that his perception of the circumstances of his recall and replacement was impaired: [TRANSLATION] [13] Thanks to his exceptional strength of character, and with the extended assistance of a psychologist, Mr.

Fortier bravely dealt with a terrible professional shock. However, his current perception of the circumstances of his recall and replacement remains impaired. [ 73 ] Although that conclusion is unassailable from the standpoint of principle, I find it perplexing. [ 74 ] I concede that trial judges are sovereign in ruling on the credibility of witnesses. Such conclusions are practically untouchable. [11] That is perfectly understandable. Trial judges are the ones who see and hear the witnesses.

During their depositions, they can observe non-verbal language and determine whether a witness is reluctant, hesitant or evasive. Nevertheless, the evidence to which the judge gave credence is, in many regards, in line with the appellant’s criticisms. [ 75 ] Although it is not up to the Court to substitute its opinion for that of the judge, I believe that, in all fairness to the appellant, it should be pointed out that the MRI must assume its share of responsibility for the “terrible professional shock” he sustained when he was replaced.

In fact, the judge acknowledged this by concluding that the MRI representatives had committed an abuse during the recall and replacement of the appellant. I will now address that question. 3. Do the moral damages awarded to the appellant constitute adequate compensation for his injury? Do the punitive damages reflect the gravity of the violation of his fundamental rights?

Do they take into account the objectives of punishment, deterrence and denunciation? [ 76 ] In his judgment, the judge awarded the appellant $5000 in moral damages and $5000 in punitive damages because of the abuse he suffered at the time of his recall. The judge believed that, by prohibiting the appellant from accessing his home, that is, the official residence of the Delegation, even to retrieve his personal property and effects, the authorities of the MRI abused their rights, and intentionally and unlawfully violated the appellant’s right to privacy.

The judge wrote the following: [TRANSLATION] [272] The evidence does not make it possible to conclude that the defendant acted in bad faith or committed a fault, with one exception: Deputy Minister Cloutier intentionally and unlawfully violated Mr. Fortier’s right to privacy by preventing him from returning to the official residence . [273] In April 2008, the Deputy Minister admitted to the Committee on Public Administration that, on March 14, 2008, he informed Mr. Fortier that he was not to return to the official residence. [274] The Deputy Minister did not act out of malice.

However, he could not have been unaware of the “immediate and natural or at least extremely probable” harmful consequences of his directive. [275] Avoiding all incidents between Mr. Fortier and the personnel of the Delegation was a legitimate concern. However, the Deputy Minister could have easily taken steps to allow Mr.

Fortier to promptly retrieve his personal effects and household papers himself, instead of entrusting a third party with the task of sorting and packing those items and having them returned to the appellant later. [276] The fault of the Deputy Minister, the MRI’s highest-ranked civil servant, is attributable to the defendant. [References omitted. Emphasis added.] [ 77 ] I share that conclusion.

The MRI’s directors “could not have been unaware of the immediate and natural or at least extremely probable harmful consequences” that the appellant would suffer as a result of the prohibition from accessing the official residence to retrieve his personal property and effects, particularly since they failed to give him his indemnity in lieu of three months’ notice at the time of his replacement. [ 78 ] Like the judge, I am also of the opinion that there was an intentional and unlawful violation of the appellant’s right to privacy within the meaning of

section 5 of the Charter . The AGQ did not contest that last conclusion. [ 79 ] However, with respect, I believe that the moral and punitive damages awarded to the appellant unfairly downplay the injury he suffered because of that serious disregard. The gravity of the fault committed by the MRI’s directors is obvious, and so are the damages. They threw the second highest-ranked Québec diplomat out onto the streets, without paying him his indemnities, thereby forcing him to take refuge with friends in order to meet his basic needs. [ 80 ] Before I rule on the extent of the damages, I will briefly reiterate the applicable principles. [ 81 ]

Article 2092 C.C.Q. states that the employee may not renounce his right to obtain an indemnity for any injury he suffered where the manner of termination of the employment contract is abusive. The abuse in question arises where the right to terminate a contract is exercised in bad faith with the intent of injuring the employee or in an excessive and unreasonable manner, within the meaning of articles 6, 7 and 1375 C.C.Q. Those articles read as follows:

6. Toute personne est tenue d'exercer ses droits civils selon les exigences de la bonne foi. 7. Aucun droit ne peut être exercé en vue de nuire à autrui ou d'une manière excessive et déraisonnable, allant ainsi à l'encontre des exigences de la bonne foi. 1375. La bonne foi doit gouverner la conduite des parties, tant au moment de la naissance de l'obligation qu'à celui de son exécution ou de son extinction. 6. Every person is bound to exercise his civil rights in good faith. 7.

No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith. 1375. The parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished. [ 82 ] The Court pointed this out in Aksich v. Canadian Pacific Railway . The abuse of right rules provided for in sections 6, 7 and 1375 C.C.Q. are applicable in the case of a breach of employment contract, as in any contractual matter.

When an employer abuses the right to terminate a contract, the employee may claim damages resulting directly from the abuse of right committed by the employer at termination of the contract, in addition to the indemnity in lieu of notice of termination. [12] [ 83 ] In that sense, it is important to distinguish between the exercise of the right to dismiss an employee with sufficient notice and an abuse by an employer that can justify awarding an indemnity.

An employer’s fault amounting to an abuse is generally the fact that the employer exercised the right to terminate the employer-employee relationship in a brutal, vexatious or malicious manner, with no concern for the foreseeable consequences of those actions on the employee.

Baudouin, Jobin and Vézina explained that distinction: [13] [TRANSLATION] When a claim goes beyond simple compensation for material loss, represented by the notice of termination and other indemnities of the same nature, and extends to compensation for moral injury, the employer’s fault mainly lies in the fact that the right to terminate the employer-employee relationship was exercised in a brutal, vexatious or malicious manner, which explains the need to establish that the actions alleged had a certain degree of gravity. [References omitted.] [ 84 ] To determine whether there was an abuse, the whole of the circumstances that led to the termination of the employment contract must be evaluated.

As the Court pointed out in Ponce v.

Montrusco , an abuse may result from [TRANSLATION] “misleading, deceptive, unduly vexatious or crude behaviour”, or actions that show “faulty or wanton disregard or negligence”. [14] Hence, the abuse results from seriously careless behaviour on the part of the employer. [ 85 ] Once proven, abuse is often sanctioned by the awarding of moral damages. [ 86 ] Moral damages generally have to do with any violation of fundamental rights, such as the right to privacy and the right to dignity. [15] Sometimes, such damages are also awarded as compensation for anxiety, inconvenience and psychological suffering stemming from a party’s failure to comply with its contractual undertakings.

Authors Baudouin, Jobin and Vézina provide examples of cases where compensation for moral injury was appropriate: [16] [TRANSLATION] 784 – General observations – Except when it refers to the non-pecuniary dimension of a violation of bodily integrity, the concept of moral injury mainly applies to extra-contractual rules. That said, non-performance of a contractual obligation may injure the feelings of the wronged contracting party .

Subject to ensuring that the alleged behaviour does in fact constitute non-performance of a contractual obligation and did not merely occur at the time of the non-performance, contractual liability will apply.

Article 1458 C.C.Q. states that the rules allow for the compensation of the moral injury. It may, for example, be a question of the psychological impact of defamation or a violation of dignity, privacy or other fundamental rights traditionally associated with moral injury.

In addition, the jurisprudence regularly awards compensation for anxiety or inconvenience related to a party’s failure to comply with its contractual undertakings , even if the substance of the action does not concern a violation of a personality right or another fundamental right, but rather property damage or other forms of patrimonial damage, the compensation of which is mainly governed by the rules respecting material injuries . [ References omitted. Emphasis added.] [ 87 ] Hence, moral damages are not limited to violations of fundamental rights.

They are also aimed at providing compensation for the non-pecuniary consequences of patrimonial damage aimed for example at a creditor’s property or stemming from the improper execution of a service or employment contract. In such cases, the principles for assessing moral damages are essentially the same as those that apply in extra-contractual matters. [ 88 ] Authors Baudouin, Jobin and Vézina wrote the following in that regard: [17] [TRANSLATION]

When assessing the damages that may be awarded to a victim for moral injury resulting from the non-performance of a contractualobligation, the compensation principles are essentially the same as those that apply in extra-contractual matters. Although the amountsawarded as compensation for moral injury in contractual matters are traditionally modest, particularly shocking circumstances mayjustify the awarding of a higher quantum, as shown in some more recent decisions. [References omitted. Emphasis added.] [89] Incidentally, in Cinar Corp. v.

Robinson, a case dealing, in particular, with the extent of psychological injury stemming from theviolation of a patrimonial right, in this case, a copyright, the Supreme Court pointed out that the assessment of non-pecuniary damagesmust take into account the objective and subjective seriousness of the injury, as well as the indemnities awarded by the courts in similarcases:[18] [105] In Quebec, the quantum of non-pecuniary damages is generally assessed by combining a conceptual approach, a personalapproach, and a functional approach: St-Ferdinand, at paras. 72-73, 75 and 77; Gauthier v.

Beaumont, (SCC), [1998] 2S.C.R. 3, at para. 101. The conceptual approach measures loss “based on an appreciation of the objective seriousness of the injury”:Stations de la Vallée de Saint-Sauveur inc. v. M.A., 2010 QCCA 1509 , [2010] R.J.Q. 1872, at para. 83, per Kasirer J.A. Thepersonal approach “seeks to evaluate, from a subjective point of view, the pain and inconvenience resulting from the injuries suffered bythe victim”: St-Ferdinand, at para. 75, citing A. Wéry, “L’évaluation judiciaire des dommages non pécuniaires résultant de blessurescorporelles: du pragmatisme de l’arbitraire?”, [1986] R.R.A. 355.

The functional approach seeks to calculate the cost of measures thatcould provide solace to the victim: Andrews, at p. 262. These approaches “apply jointly, and thereby encourage a personalizedevaluation” of non-pecuniary damages: St-Ferdinand, at para. 80. [106] In addition to applying these approaches, courts assessing non-pecuniary damages should compare the case at hand to otheranalogous cases in which non-pecuniary damages were awarded: Stations de la Vallée, at para. 83.

They must attempt to treat “like casesalike” (ibid.), by giving roughly similar compensation to victims whose injuries are alike when assessed from the point of view of thecombined approaches discussed above.

However, it is not helpful to compare cases where non-pecuniary damages are capped to thosewhere they are not. . . . [Emphasis added.] [90] The Supreme Court was also careful to indicate that non-pecuniary losses, which include various types of damages, such as lossof enjoyment of life, pain, physical and psychological suffering, and inconvenience, will be characterized as a moral, material or physicalinjury depending on the characterization of the initial violation. In other words, psychological suffering may be characterized as materialdamage if the initial violation gave rise to such damage:[19] [95] . . .

Non-pecuniary loss is a broad category that covers elements such as “loss of enjoyment of life, esthetic prejudice, physical andpsychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice”: Quebec (Public Curator) v. Syndicat nationaldes employés de l’hôpital St-Ferdinand, (SCC), [1996] 3 S.C.R. 211, at para. 63; Andrews, at p. 264. . . . [100] . . . In Quebec civil law, an injury can only be characterized as a bodily injury (“préjudice corporel”) if “some form of a breach ofphysical integrity” is made out: Schreiber v.

Canada (Attorney General), 2002 SCC 62 , [2002] 3 S.C.R. 269, at para. 62. Inmaking this characterization, it is important to look to whether the act that caused the injury was itself a breach of the victim’s physicalintegrity, rather than to whether the act had an impact on the physical health of the victim: Gardner, at p. 17. Conversely, “interferenceswith rights properly characterized as being of a moral nature will not be included within this class of claims”: Schreiber, at para. 64. [101] The infringement of Robinson’s copyright was not a breach of his physical integrity.

The infringement caused severe shockresulting in deterioration of Robinson’s physical health. However, as discussed, impact on a victim’s physical health does not suffice tocharacterize the injury as a bodily injury, in the absence of a breach of physical integrity: see for example Landry v. Audet, 2011 QCCA535 , at para. 107, leave to appeal refused, [2011] 3 S.C.R. v. The Court of Appeal, with respect, lost sight of this distinction. [102] It is more appropriate to characterize Robinson’s psychological suffering as a non-pecuniary damage stemming from materialinjury.

Indeed, the infringement of copyright was a breach of Robinson’s property rights. It is the initial breach, rather than theconsequences flowing from that breach, which serves to characterize the type of injury suffered.

As Professor Gardner states it,[translation] “the appropriation of Claude Robinson’s work is, for him, a material injury with pecuniary consequences (the profitsgenerated by using it) and non-pecuniary consequences (the stress, emotional distress or, in other words, psychological injury that resultsfrom it)”: “Revue de la jurisprudence 2011 en droit des obligations” (2012), 114 R. du N. 63, at p. 70.

As discussed, the scope ofapplication of the Andrews cap is limited; it does not apply to non-pecuniary damages stemming from material injury. [91] In short, the Court acknowledged that non-pecuniary losses stemming from a physical or psychological injury incidental to amaterial injury, for example, that suffered by a victim of defamation, are assessed without taking into account the cap established inAndrews.[20] In Robinson, that characterization of the non-pecuniary damages enabled the Court to reinstate the indemnities awarded infirst instance, which exceeded the cap:[21] [97] However, the Andrews cap is inapplicable to non-pecuniary damages that do not stem from bodily injury, such as those that resultfrom defamation: Hill v.

Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130, at para. 168; see also Snyder v.Montreal Gazette Ltd., (SCC), [1988] 1 S.C.R. 494, in which Lamer J. failed to attract a majority with his propositionthat damages in civil law defamation cases should be capped. [98] The Cinar appellants argue (

i) that a cap should be imposed on all non-pecuniary damages, regardless of whether they stem frombodily injury, and alternatively (ii) that the non-pecuniary damages in this case do in fact stem from bodily injury. [99] On the first argument, I would decline to extend the scope of application of the Andrews cap beyond non-pecuniary damagesstemming from bodily injury. In Hill, this Court refused to apply the cap to non-pecuniary damages stemming from defamation. TheCourt reasoned that the policy concerns specific to bodily injury cases identified in the Andrews trilogy ― namely the socially

burdensome inflation of the amounts awarded as non-pecuniary damages ― had not been made out in the field of defamation law.

Likewise, the Cinar appellants have not persuaded me that there is an imminent risk of a burdensome upward trend in non-pecuniary damages awarded in copyright infringement cases. [ 92 ] Lastly, I note that, in that same ruling, the Supreme Court likened the psychological injury suffered by the victim, that is, “the subjective impact of the infringement of copyright on Robinson’s mental state and personal life” resulting from interference with his integrity, to that invoked by a victim of defamation. According to the Court, the deep psychological suffering experienced by Mr.

Robinson was similar to that suffered by a victim of defamation: [22] [108] I agree with the trial judge that Robinson’s non-pecuniary damages are analogous to those claimed by a victim of defamation. The product of Robinson’s artistic exertions was taken from him and the integrity of his personal creative process was violated, causing deep psychological suffering. These harms are similar to those suffered by a victim of defamation. [ 93 ] I will come back to this. [ 94 ] In addition to moral damages, abuse can lead to the awarding of punitive damages. [ 95 ]

Article 1621 C.C.Q. states that such punitive damages are only awarded in cases where the law allows it. It also indicates that those damages are assessed in light of all the appropriate circumstances, in particular, the gravity of the fault committed, the patrimonial situation of the person who committed the fault, and the reparation for which he or she is already liable to the victim. That

article reads as follows: 1621. Lorsque la loi prévoit l'attribution de dommages-intérêts punitifs, ceux-ci ne peuvent excéder, en valeur, ce qui est suffisant pour assurer leur fonction préventive. Ils s'apprécient en tenant compte de toutes les circonstances appropriées , notamment de la gravité de la faute du débiteur, de sa situation patrimoniale ou de l'étendue de la réparation à laquelle il est déjà tenu envers le créancier , ainsi que, le cas échéant, du fait que la prise en charge du paiement réparateur est, en tout ou en partie, assumée par un tiers. 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 damages is wholly or partly assumed by a third person. [ Emphasis added. ] [ 96 ] That is true in cases where there is interference with a right recognized by the Charter .

Section 49 of the Charter provides that the victim of any unlawful interference with a recognized right or freedom may claim damages for the resulting moral injury, as well as punitive damages if the interference was intentional.

Section 49 reads as follows: 49. Une atteinte illicite à un droit ou à une liberté reconnu par la présente Charte confère à la victime le droit d'obtenir la cessation de cette atteinte et la réparation du préjudice moral ou matériel qui en résulte. En cas d'atteinte illicite et intentionnelle , le tribunal peut en outre condamner son auteur à des dommages-intérêts punitifs . 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 . [ Emphasis added. ] [ 97 ] The intentional character of the fault within the meaning of

section 49 is not limited to cases where the person who commits the interference shows a state of mind that implies a desire or intent to cause the consequences of his or her conduct. Intentional interference also covers situations where the person who commits the interference acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause: [23] 121.

Consequently, there will be unlawful and intentional interference within the meaning of the second paragraph of s. 49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence.

Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test. [ 98 ] Once the intentional character of the fault is proven, the amount of the punitive damages must be established in light of three objectives: punishment, deterrence and denunciation. Contrary to compensatory damages, punitive damages are not aimed at making reparation for the injury resulting from a fault.

Rather, they convey the opinion of the justice system concerning the seriousness of an intentional interference and the need to punish, deter and denounce it. [24] [ 99 ] On the basis of the principles taken from De Montigny v. Brossard , authors Baudouin, Jobin and Vézina describe the three functions of punitive damages as follows: [25]

[TRANSLATION] 803 – Notion and functions – Traditionally, punitive damages serve a double function that is very different from that of compensatory damages. Their objective is not to make reparation for the injury suffered, but essentially to deter the person who committed the fault from repeating the actions while punishing him or her through a private penalty, and to deter anyone who might be tempted to do something similar. In certain fields, such as consumer law, deterrence is the predominant objective; in others, such as human rights and freedoms, punishment is emphasized.

More recently, the Supreme Court had to identify a third function, that is, denouncing offensive behaviour of which society disapproves, even in the absence of any deterrent or punitive functions. Those functions complement one another, while overlapping to some extent. [References omitted.] [ 100 ] The more serious the interference, the more substantial the damages. [ 101 ] Although the seriousness of the interference is a crucial factor, it is not the only one that must be considered.

Article 1621 C.C.Q. mentions that punitive damages are established in light of the gravity of the debtor’s fault, as well as certain other factors such as his or her patrimonial situation and th e extent of the reparation for which he or she is already liable. Baudouin, Jobin and Vézina wrote the following in that regard: [26] [TRANSLATION] The gravity of the debtor’s fault is, without a doubt, the most important factor. It is true that the conditions for awarding punitive damages already require a certain degree of gravity, for example, by demanding that there be intentional interference under

section 49 of the Charter or, in other circumstances, reprehensible behaviour. However, even after that behaviour is established, the fact remains that not all behaviours giving rise to the awarding of punitive damages are of equal gravity, which must be taken into account when they are evaluated. Certain factors may contribute to a behaviour’s gravity, for example, its virulence, the victim’s particular vulnerability, the absence of remorse, or the fact that it is not a first occurrence.

The debtor’s patrimonial situation must also be taken into account in order for a condemnation to pay punitive damages to have a significant impact consistent with their function. Thus, the quantum paid by a large commercial or industrial business must be higher than that paid by a small merchant, particularly if the awarding of punitive damages is aimed at sanctioning a lucrative practice. In addition, not all individuals are of equal means. For the purpose of deterrence, some will need to be condemned to pay a higher amount.

As for others, their more modest means will justify awarding a lesser amount, or setting aside punitive damages entirely.

When condemning a municipality or community, the fact that the condemnation will be borne by the individuals living there may need to be taken into account, as well as the capacity of those individuals to pay. [References omitted.] [ 102 ] Bearing those principles in mind, I will now rule on the quantum of moral and punitive damages that must be awarded in this case. [ 103 ] From the whole of the circumstances surrounding the recall and replacement of the appellant, I note that he was recalled to Québec without having been warned of what awaited him.

Although that approach may have been justifiable in itself, it ceased to be from the moment the authorities of the MRI decided to prohibit the appellant from returning to the official residence, thereby preventing him from leaving what was his home with dignity and seeing to the move himself. [ 104 ] What is more, the MRI’s directors could not be unaware that, by prohibiting the appellant from returning to the official residence, even for a short time, so that he could retrieve his property, leave his function with dignity and find a new place to stay and live, without paying him the indemnity to which he was entitled, they were doing nothing short of throwing him out onto the streets.

I would like to reiterate the judge’s comments in that regard: [TRANSLATION] [162] The appellant’s personal effects remained in New York (he recovered them in April 2008). He had nowhere to go and nothing to do. That evening, he stopped receiving his emails. Six days later, his cell phone service was terminated. He had left the breathing apparatus for his sleep apnea at the official residence and had to replace it. He lived with friends for one week, in an apartment that was lent to him for a few days, then with his brother, his sister and, finally, in a small dwelling. . . . [167] The media got hold of the news.

They reported the Minister’s comments, as well as the conjectures and statements of people who were not aware of the facts. . . . [References omitted.] [ 105 ] That decision shows wanton disregard and extremely harmful behaviour. [ 106 ] I can hardly imagine the appellant, Delegate General, ousted with no income, deprived of his personal effects, having to rely on acquaintances for housing and buy clothes while waiting to have his own returned to him. [ 107 ] What can be said about the fact that the authorities of the MRI agreed to have third parties enter the appellant’s home and invade

his privacy to take his personal effects, with all that such a violation of privacy may involve?

How to explain that, although he was in dire straits, the appellant had to wait over four months to be reimbursed for expenses he incurred to meet his basic needs and to receive the indemnities to which he was entitled? [ 108 ] How could the authorities of the MRI behave that way, with no concern for the humiliation that such treatment would cause the appellant? [ 109 ] The Deputy Minister and the other MRI representatives involved committed a separate fault justifying the award of a fair compensatory indemnity that will not serve the same purpose as the three months’ indemnity awarded in lieu of notice of termination— which, incidentally, was modest. [27] Their decision, in and of itself, cast indelible doubt on the appellant’s integrity.

This is clearly shown by the articles published in the wake of his dismissal, which created a media frenzy: [TRANSLATION] Cyberpresse.ca, Wednesday, March 19, 2008, under the title “Québec fires its Delegate General in New York” . . . “ The situation is so serious that the ministère des Relations internationales (MRI) prohibited him from returning to the Delegation in New York. His personal effects will be sent to him .”.

Cyberpresse.ca, Thursday, March 20, 2008, under the title “$38 795 in severance pay” . . . “ADQ House Leader Sébastien Proulx believes that the hasty dismissal suggests something serious is going on behind all this.” . . . “ According to Sébastien, it is impossible to believe the version of the Minister of International Affairs, who said that Mr. Fortier was dismissed solely for administrative reasons. No one has ever been dismissed so brutally for a disagreement over focus .”.

Cyberpresse.ca, Tuesday, April 8, 2008, under the title “Bruno Fortier to explain himself before the National Assembly” . . . “The member of the ADQ dismissed the version of the Minister of International Relations.” “ No one in Québec believes that a simple matter of administrative restructuring led to Québec’s Delegate General in New York being dismissed so violently and prevented from returning to the United States to retrieve his personal effects , particularly since he is a personal friend of the Prime Minister.

So, what is going on behind all this ?” . . . [Emphasis added.] [ 110 ] I said it earlier and I will say it again. [ 111 ] By awarding the appellant an indemnity of $5000 in moral damages and an amount of $5000 in punitive damages for the abuse he suffered at the time of his recall and replacement, the judge unduly downplayed the faults committed by the MRI and the harm they caused.

The recall and replacement of the appellant were brutal and vexatious in nature, as the people in authority could not be unaware of the consequences of their decision. [ 112 ] I believe that, by awarding such modest indemnities, the judge committed a palpable and overriding mixed error of law and fact.

The serious faults committed by the MRI, as well as their consequences, required the awarding of more substantial indemnities. [ 113 ] From the evidence to which the judge gave credence, I note that, because of the circumstances surrounding his replacement, the appellant was humiliated and devastated, and suffered a severe depression. Some even feared that he would commit suicide. Until 2011, he held jobs that were well beneath his abilities. This ordeal caused him to spend several years in purgatory.

On the basis of the evidence, the judge wrote the following: [TRANSLATION] [191] He tried to carry out transactions on behalf of a group of private investors, while actively looking for work. [192] Pierre Gince, communications advisor, is a friend of Mr. Fortier, whom he has known since 1988. From March 2008 to late 2009, they saw each other regularly. During that slump, Mr. Gince was worried about Mr. Fortier, to the point of asking him if he was considering suicide. Rather, Mr. Fortier intended to fight. Mr. Gince tried to obtain mandates for Mr. Fortier, but those steps proved difficult. Mr.

Gince lent $1000 to Mr. Fortier, who reimbursed him. [193] From May 2008 to July 2009, Mr. Fortier had access to an office located on rue University in Montréal. It was provided to him free of charge by a human resources advisor, psychologist and founder of Matte Groupe Conseil. He also received advice on applying for jobs and improving his job interview techniques. [194] All the steps he took proved unsuccessful. [195] Hélène Desmarais believes that Mr.

Fortier’s image and reputation were strongly affected by his dismissal, although her own opinion of him has remained unchanged since she interacted with him for years. [196] In 2010, Mr. Fortier contacted Louise O’Sullivan-Boyne, recruitment and staffing advisor, founder and senior executive of Conseillers en placement Jacques Cartier Inc. He asked for her assistance and told her of his urgent need to occupy any position in order to support himself. Ms. O’Sullivan-Boyne then took cognizance of his curriculum vitae, his activities and his training, which confirmed his management skills. [197] According to Ms.

O’Sullivan-Boyne, Mr. Fortier’s good reputation is still intact in the Montréal business and political circles in which she worked from 2001 to 2004. [198] Yet, in order to support himself, Mr. Fortier worked for six months at a telemarketing centre, at an hourly wage of $14.27, plus commission and benefits.

[199] The defendant admitted that media coverage of the circumstances surrounding the dismissal made Mr. Fortier’s return to work difficult and that he made every effort to mitigate his damages . [200] Mr. Fortier consulted Sabine-Laure Giesbert, psychologist, for the trauma caused by his dismissal. In April 2008, he began therapy focusing mainly on the problems he experienced, his loss of confidence, and his other concerns related to the consequences of the situation. At first, there were several consultations a month. Then, from 2008 to 2011, they gradually became less frequent. In 2012, Mr.

Fortier consulted only twice. The rate was $125 per consultation, totalling $5600. That amount was paid in full. [201] Dr. Laurent Boisvert, a long-time friend, described Mr. Fortier as being [TRANSLATION] “discreet, shy, reserved, introverted, and awkward in interpersonal relations when stressed”. After the recall and replacement, Dr. Boisvert noted that Mr. Fortier was affected, humiliated, devastated and depressive. He asked whether Mr. Fortier still wanted to live. Fortunately, Mr. Fortier answered that he did not want to end his life. [202] Dr. Boisvert noted that Mr.

Fortier regained control of his life, lost weight and got back into shape. [203] From 2009 to 2011, Mr. Fortier’s annual income was about $22 000, $38 000 and $45 000. He had to liquidate his RRSPs and insurance policies and borrow. [204] At present, his liabilities total about $75 000. [ References omitted. Emphasis added. ] [ 114 ] I acknowledge that a dismissal creates its share of problems for the employee and may cause stress, concerns, and even some humiliation. It is also understood that the replacement of a Delegate General during his mandate can arouse the media’s interest and warrant press coverage.

In addition, it must be pointed out that the appellant himself spoke to a journalist, although he did so to counter the media impact of his replacement. [ 115 ] Nevertheless, I believe it is undeniable that the authorities of the MRI not only violated the appellant’s dignity but also, by prohibiting access to the official residence―an illegal and inappropriate act if ever there was one―amplified and aggravated the normal inconvenience caused by his dismissal. [ 116 ] Given its draconian and even brutal nature, that decision led to all kinds of conjectures and questioning within the Québec political community and among the general public. [ 117 ] The major psychological trauma suffered by the appellant would certainly have been less serious, perhaps even nonexistent, if the MRI had allowed him to leave his position with dignity by agreeing, in particular, to let him return to the official residence, and by giving him a reasonable amount of time to leave the premises, to which he was entitled. [28] As the judge pointed out, temporary steps could easily have been taken to give the appellant access to the official residence without having to cross paths with the attaché. [ 118 ] That approach would not only have made it possible to respect the appellant’s fundamental rights, but would also have avoided disgracing him in the eyes of the media and the general public.

I cannot help but cite the comment made by a member of the ADQ following the replacement of the appellant, which very clearly illustrates the pernicious effect of the decision to prohibit the appellant from accessing the official residence, as well as its consequences: [TRANSLATION] “ No one in Québec believes that a simple matter of administrative restructuring led to Québec’s Delegate General in New York being dismissed so violently and prevented from returning to the United States to retrieve his personal effects , particularly since he is a personal friend of the Prime Minister.

So, what is going on behind all this ?” . . . [Emphasis added.] [ 119 ] Ultimately, I must reiterate that, by depriving the appellant of access to the official residence, the Deputy Minister cast doubt on his integrity. As mentioned earlier, he created a controversy that raised unnecessary questions. The mental health problems suffered by the appellant stemmed in part from that action. No one can deny that the psychological trauma experienced by the appellant had major consequences both emotionally and professionally. [29] [ 120 ] In this case, as in the Supreme Court ruling in Cinar Corp. v.

Robinson , [30] the violations of the appellant’s privacy, dignity and honour caused him an injury similar to that invoked by a victim of defamation.

Although the MRI’s thoughtless decision to prohibit him from accessing the official residence did not constitute libellous words or writings, it caused serious harm to his dignity, to the point that it jeopardized his psychological equilibrium. [ 121 ] It would be unfair to treat the violations of the appellant’s dignity and honour, which are similar to defamation, without addressing the actual damages suffered, solely because they result from an abusive action taken on the termination of an employment contract. Similar damages must be compensated similarly, not matter what fault caused them.

The fact that the appellant’s request regarding libellous comments is dismissed, as I will indicate below, has no impact. [ 122 ] Considering the objective and subjective seriousness of the injury, the indemnities awarded to victims of defamation who suffered similar damages (i.e. deep psychological suffering), [31] and the significant number of violations, which also cover the inviolability of the appellant’s home and private life, and taking into account the inconvenience he incurred by being put out onto the streets, I believe it would be reasonable to award the appellant an indemnity of $50 000 in moral damages. [ 123 ] I am aware that that indemnity is different from those generally awarded to compensate employees who suffer abuse when dismissed.

However, at the risk of repeating myself, contrary to those precedents, including the ones referred to by Pelletier J., who

dissented in IBM Canada ltée v. D.C. , [32] the damages suffered by the appellant in this case are similar to those suffered by a victim of defamation. [ 124 ] There remains the question of punitive damages. [ 125 ] As I pointed out, the violations of fundamental Charter rights are not limited to the right provided for in

section 5 —the right to respect for one’s private life—as the judge concluded. The appellant’s home, his right to the peaceful enjoyment of his private property and, above all, his dignity and honour were violated. I am referring to the rights recognized in

section s 4, 5 , 6 , 7 and 8 of the Charter: 4. Toute personne a droit à la sauvegarde de sa dignité, de son honneur et de sa réputation. 5. Toute personne a droit au respect de sa vie privée. 6. Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi. 7. La demeure est inviolable. 8. Nul ne peut pénétrer chez autrui ni y prendre quoi que ce soit sans son consentement exprès ou tacite. 4. Every person has a right to the safeguard of his dignity, honour and reputation. 5. Every person has a right to respect for his private life. 6.

Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. 7. A person's home is inviolable. 8. No one may enter upon the property of another or take anything therefrom without his express or implied consent. [ 126 ] Taking into account the objective seriousness and the number of Charter violations, as well as the situation of the AGQ, which is certainly one of the largest employers in Québec, if not the largest, I propose that they be set at $25 000.

That amount will make it possible to achieve the objectives of punishment, deterrence and denunciation, letting everyone know that such behaviour is unacceptable. [33] 4. Does the one-year extinctive prescription in

article 2929 C.C.Q. apply to the appellant’s claim for damages for defamation due to the MRI’s comments about certain sensitive facts related to his dismissal? [ 127 ] Here, the question raised by the appellant is not without interest. [ 128 ] However, given that the appellant raised no palpable and overriding error to impugn the judge’s conclusions that the authorities of the MRI made no comments aimed at defaming him and that he himself contributed to media speculation about his replacement by giving sensitive information to a journalist, I feel it would be inappropriate for me to rule on the question of prescription.

CONCLUSION [ 129 ] For these reasons, I propose that the appeal be allowed in part and that the respondent be condemned to pay the appellant $75 000, with interest at the legal rate and the additional indemnity as of service, plus costs. JEAN-FRANÇOIS ÉMOND J.A. REASONS OF SAVARD J.A. [ 130 ] I have read the reasons of my colleague Émond J.A. I concur with them and with his proposed conclusions, subject to the question regarding the existence of a reason that could have justified a dismissal for cause or a removal.

As Émond J.A. pointed out in paragraph 62 of his reasons, the trial judge rightly did not rule on that question, as the appellant was replaced and not removed. At no time did the ministère des Relations internationales claim to have removed the appellant from his functions as Delegate General or even to have dismissed him for a serious reason. I therefore do not intend to issue an opinion on that question. MANON SAVARD J.A.