2015 QCCQ 3262, 2015 QCCQ 3262

JF1075 Karman c. Gatineau (Ville de) 2015 QCCQ 3262 COURT OF QUÉBEC (Small Claims) CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Civil Division No. 550-32-021790-149 DATE: April 27, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN FAULLEM J.C.Q. ______________________________________________________________________ GABOR KARMAN Plaintiff v.

VILLE DE GATINEAU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Gabor Karman is claiming from Ville de Gatineau $6000 in moral damages as a result of his arrest on May 29, 2012, which he deems illegal. [ 2 ] In contestation, Ville de Gatineau argued that Mr.

Karman’s recourse is inadmissible since it is prescribed, having been instituted in Court more than six months after his arrest. [ 3 ] Subsidiarily, Ville de Gatineau alleged that its police officers committed no fault or negligence in performing their duties. I- ISSUES [ 4 ] Is Gabor Karman’s recourse prescribed? [ 5 ] If not, did the Ville de Gatineau police officer who arrested Mr. Karman on May 29, 2012 commit a fault in the performance of his duties? II- CONTEXT [ 6 ] The Court notes the following elements from the testimony heard at the trials. [ 7 ] In May 2012, Mr.

Karman was a regular customer at the Zellers store at Place Cartier in the Hull area of Ville de Gatineau. [ 8 ] At that time, Zellers stores, including the store at Place Cartier, were the property of Hudson Bay Company Store 110 ( HBC ). [ 9 ] On April 14, 2012, while shopping at Zellers, Mr. Karman noted the presence of Marie-Pierre Dion behind one of the store’s cash counters. Having met her when she was working in a convenience store on rue Promenade du Portage in another area of the city, he approached her and talked with her for 15 minutes or so. On that occasion, Mr. Karman learned that Ms.

Dion had not been working at Zellers for long. At the end of their conversation, Ms. Dion gave Mr. Karman her email address. [ 10 ] The same evening, and several times after that, Mr. Karman tried to send an email to Ms. Dion, but without success; the email address he had did not appear to be the correct one. [ 11 ] A little over a month later, on May 21, 2012, Mr. Karman returned to the Zellers store to get in touch with Ms. Dion again, since he could not reach her by email. [ 12 ] While Mr. Karman was talking with an employee in the electronics department, Ms. Dion approached him to say hello.

Since he was engaged in a conversation, Mr. Karman agreed with Ms. Dion to talk a little later. [ 13 ] As he could not locate Ms. Dion when he finished his conversation with the employee in the electronics department, Mr.

Karman left Zellers in order to continue his shopping at Dollarama and IGA, located at the other end of Place Cartier. [ 14 ] When he finished his shopping, Mr. Karman decided to go back to Zellers to see whether he could speak with Ms. Dion. After a few minutes, he saw her near a dressing room counter. Ms. Dion was with another employee, who appeared to be explaining what Ms. Dion had to do. Mr. Karman deduced that Ms. Dion was in training. [ 15 ] After hesitating a few times, Mr. Karman interrupted them in order to see whether he could speak with Ms. Dion. The other employee responded that they were busy. Mr.

Karman placed his hand on Ms. Dion’s left shoulder to encourage her and told her that he would speak with her later, when she was available. Ms. Dion thanked him and returned to her duties. [ 16 ] After waiting for 20 minutes or so and seeing that Ms. Dion was still busy, Mr. Karman went to the customer service counter for paper and a pencil so he could write her a note and give her his email address. [ 17 ] Mr. Karman then decided to take his hand-written note directly to Ms. Dion before leaving Zellers. [ 18 ] Before Mr. Karman managed to reach Ms.

Dion, another Zellers employee stopped him and accused him of harassing Ms. Dion. The employee ordered him to leave the store immediately or she would call the police. [ 19 ] Mr. Karman tried to explain, but the employee repeated her threat to call the police. Mr. Karman decided to leave the store. [ 20 ] The next day, Mr. Karman called Zellers general customer service in order to file a complaint against the employee who had ordered him to leave the store. [ 21 ] The same day, he also spoke with one of the managers of Zellers at Place Cartier. To his recollection, the employee’s given name was Fatima.

During their conversation, Fatima asked him to explain the situation. After listening to Mr. Karman, Fatima took down his name and contact information, and informed him that she would forward his complaint to the administration. [ 22 ] As he had had no news, Mr. Karman called the Zellers general customer service back a few days later. He spoke with an employee reportedly named Dina. She informed him that the complaint he had filed in his first call was still taking its course. She said that a person in charge of the Place Cartier store would contact him shortly. [ 23 ] Mr.

Karman tried several times in the days that followed to speak with the person in charge of his complaint, but without success. Every time he managed to speak with a Zellers employee, both at Place Cartier and at the general customer service, he was told that someone else would call him back. [ 24 ] On May 29, 2012, in the late afternoon, Mr. Karman went directly to the Zellers customer service counter at Place Cartier and asked to speak to the manager.

He was informed that Fatima, the department manager, had been notified of his presence and that she would come and meet with him. [ 25 ] After waiting 20 minutes or so, Mr. Karman was accosted by a Ville de Gatineau police officer, who asked Mr. Karman to follow him into a small room adjacent to the customer service counter. [ 26 ] Once they were in the room, the police officer informed Mr. Karman that Zellers employees had accused him of sexually harassing Ms. Dion on May 21, 2012. [ 27 ] Mr.

Karman vigorously defended himself before the police officer, saying he had not sexually harassed her and he asked the officer to immediately check again with the Zellers employees. He also asked if it would be possible to screen the video recordings of the event, if they were available. [ 28 ] Mr. Karman was then escorted outside by the police officer, who issued him a notice to appear in Criminal Court. Mr. Karman used his time in the police car to write a statement of his version of the May 21 events. The written statement was given to the police officer. [ 29 ] Mr.

Karman was then released, without it being necessary to take him to the Ville de Gatineau police station. [ 30 ] In the criminal proceedings stemming from the sexual assault complaint, Mr. Karman signed an undertaking to stay at least 50 metres away from the Zellers store at Place Cartier. [ 31 ] On June 22, 2012, while at home, Mr. Karman was again arrested by Ville de Gatineau police officers. At the time of his arrest, Mr. Karman was informed that he was allegedly seen by Zellers employees at fewer than 50 metres from the store. [ 32 ] Mr.

Karman acknowledged that he had gone to Place Cartier that day, but he denied being so close to the Zellers store. He said he was in the area of the IGA, at the other end of the shopping centre. The IGA is at least 500 metres from the Zellers store, according to Mr. Karman. [ 33 ] Although he was not held by the Gatineau police department, Mr.

Karman was committed to stand trial on a charge of breach of an undertaking. [ 34 ] In their investigations, the Ville de Gatineau police officers gathered a number of statements from different witnesses of the events in question. [ 35 ] On October 22, 2013, more than 17 months after his first arrest, Mr. Karman was acquitted of all the charges against him further to the various complaints by Zellers employees, including the charge of breach of an undertaking. [ 36 ] It should be noted that none of the Zellers employees who filed a complaint against Mr. Karman or who signed statements at

the time of the two events described above testified at the criminal trial. Given that, Mr. Karman was found innocent of all charges, for lack of evidence. [ 37 ] In addition to suing Ville de Gatineau following his arrest on June 22, 2012, Mr. Karman is also suing Ville de Gatineau for the arrest on May 29, 2012 in a separate case bearing number 550-32-021789-141. Furthermore, Mr.

Karman is also suing HBC for damages resulting from the charges brought against him by its employees in the case bearing number 550-32-021976-144. [ 38 ] The Court heard those two cases at the same time as the case at bar. [ 39 ] The Court dismisses Mr. Karman’s second proceeding regarding Ville de Gatineau and allows the application against HBC in two separate judgments rendered at the same time as the present decision. III- THE LAW AND ANALYSIS (

A) The prescription of Mr. Karman’s recourse [40]

Section 586 of the Cities and Towns Act reads as follows: 586. Every action, suit or claim against the municipality or any of its officers or employees, for damages occasioned by faults, or illegalities, shall be prescribed by six months from the day on which the cause of action accrued, any provision of law to the contrary notwithstanding. [41] However,

article 2930 of the Civil Code of Québec (C.C.Q.) nuances that provision of the Cities and Towns Act . In the case of bodily injury, the plaintiff has three years to institute a judicial proceeding. [42] In Andrusiak v. Montréal (Ville de) , [1] the Québec Court of Appeal concluded that moral injury resulting directly from violation of fundamental rights such as the right to freedom does not constitute bodily injury for the purposes of

article 2930 C.C.Q., unless the police intervention itself involved a violation of the complainant’s physical integrity. [43] In the case at bar, the evidence does not show that Mr. Karman’s physical integrity was violated in any way in the arrest on May 29, 2012. Thus, the alleged moral injury cannot be considered bodily injury; therefore, the short prescription in

section 586 of the Cities and Towns Act applies in this case. [44] Mr. Karman contended that the six-month prescription could not begin to run until he was acquitted of the charges of sexual harassment and breach of an undertaking, that is, until October 22, 2013. Ville de Gatineau contended that the prescription began to run from the time of Mr. Karman’s arrest. [45] In a recent judgment, rendered in Couillard v. Québec (Procureur général du) , [2] my colleague the Honourable Brigitte Charron J.C.Q. examined the issue of the calculation of the six-month prescription. For Charron J., a reading of

section 586 of the Cities and Towns Act makes it possible to conclude that, generally, the six-month prescription is calculated from the day that the right of action arises. The Court shares that conclusion. [46] It is undeniable that, in matters of arrest, the injury incurred by the complainant occurs at the time of the arrest, and the calculation of the prescription begins to run as of the complainant’s release. [47] However, in certain circumstances, it is impossible for the complainant to know the fault allegedly committed by the police officers at the time of arrest.

In that case, the impossibility to act can postpone the start of the calculation of the prescription. [48] On the basis of the writings of authors Baudouin and Deslauriers, [3] Charron J. wrote the following: [TRANSLATION] [46] The impossibility to act is defined as follows by authors Jean-Louis Baudouin and Patrice Deslauriers in the work La responsabilité civile, 5th ed., Yvon Blais, 1726 at 1031 and 1032: [TRANSLATION] [w]hen it is impossible for the victim to identify the person responsible for the injury; when, because the victim is unconscious or in a psychological state of fear, he or she cannot either know or exercise his or her right; when the victim is not aware of the injury caused; or more broadly, when the victim is not aware of the legal facts giving rise to a right of action .

However, simple ignorance of the precise extent of the damage that can be claimed is not a valid cause of suspension. The impossibility to act required by the law remains a question left to the assessment of the courts, which, given the text of

article 2904 of the Civil Code of Québec and the recent judgment of the Supreme Court, must be less strict than under the old system. It is proper in that regard not to confuse the impossibility to act and simple ignorance of the law, which is not a valid reason for suspension. [Emphasis added.] [49] In the case at bar, Mr. Karman alleges that, in his first arrest, he asked the police officer to check the May 21, 2012 video recordings and to continue the investigation before arresting him. Mr.

Karman’s testimony showed that he was aware, from the time of his arrest, of the fault for which he intended to reproach the Ville de Gatineau police department. The same is true in regard to the second arrest. [50] In these circumstances, the Court concludes that the prescription of Mr. Karman’s recourse against Ville de Gatineau began on May 29, 2012 and that his recourse was therefore prescribed when he instituted the present proceeding before the Court.

[51] On that ground alone, the Court must dismiss Mr. Karman’s claim. [52] Subsidiarily, even if the Court had concluded that Mr. Karman’s recourse was not prescribed, it would still dismiss his claim because it concludes that the Ville de Gatineau police department did not commit a fault in Mr. Karman’s regard in the performance of its duties that led to Mr. Karman’s arrest on May 29, 2012. [53] In Binet v.

Société des casinos du Québec inc. (Casino du Lac Lemay) , [4] the Honourable André Roy J.S.C. recalled the principles applicable in police liability matters: [TRANSLATION] [47] The principles that apply to the liability of police officers who conduct an investigation are well defined by doctrine [5] and jurisprudence. [6] They can be summarized as follows: 1. Police officers must investigate crime. That is their duty ( Police Act (R.S.Q., c. P-13-1, s. 48); Hill at para. 1 ; Jauvin at para. 45 ); 2. However, they are not immune from liability and must act cautiously and diligently ( Hill at para. 3 ); 3.

There is no exceptional provision for the extracontractual liability of a police officer in an investigation. It is governed by the normal rules applicable to all litigants. A police officer does not have legislative or jurisprudential immunity ( Lacombe at paras. 40 and 117 ; Jauvin at para. 42 ; Baudouin and Fabien at 422); 4. The plaintiff bears the burden of proving a police officer’s fault and the resulting damages; 5. The police investigation need not be perfect or optimal, but only reasonable; 6.

The standard of assessment is that of the conduct of a normally competent, prudent and diligent police officer placed in the same circumstances ( Hill at paras. 3, 72 and 73 ; Lacombe at para. 41 ; Jauvin at paras. 44 and 59 ; Baudouin and Fabien at 423). Police officers need not be excellent, but cannot be mediocre either; 7. During the investigation, a police officer does not decide whether the suspect is guilty or innocent. That duty rests with other intervening parties in the judicial system ( Hill at para. 50 ); 8. A police officer is an investigation professional.

As such, in the performance of his or her duties, the police officer has sufficient latitude to exercise discretionary power, which does not justify, however, setting aside his or her duty of care ( Hill at para. 51 ); 9.

In connection with the evolving nature of an investigation, at the stage of the arrest or charging of the suspect, the law obliges a police officer to have, both objectively and subjectively, reasonable and probable grounds for believing that the suspect committed a crime, not that the suspect will be found guilty ( Hill at para. 55 ; Lacombe at paras. 43 and 119 ; Jauvin at para. 47 ). [54] In the case at bar, Ville de Gatineau filed at the hearing all the written statements that the various employees of the Zellers store at Place Cartier gave the police department at the time of the events.

Although the statements are not, in and of themselves, proof of their content, their filing demonstrates that, before arresting Mr. Karman, the Gatineau police department obtained and had in its possession several statements of witnesses confirming the events in May 2012. In addition, the statements confirm that Ms. Dion had filed a complaint for sexual harassment by Mr. Karman in the case. [55] Therefore, the evidence shows that the police officers investigated the complaint against Mr. Karman before arresting him.

That same evidence shows that the officers of the Ville de Gatineau police department complied with the requirements of the jurisprudence in that regard. [56] As for court costs, since Ville de Gatineau refused to send Mr. Karman, before the trial, a copy of the statements of the witnesses of the events, Ville de Gatineau must pay its own costs resulting from its contestation. [57] THEREFORE, THE COURT: [58] DISMISSES Gabor Karman’s motion, without costs. __________________________________ JEAN FAULLEM J.C.Q. Date of hearing: January 26, 2015