L'Écuyer c. Quebec (Attorney General)		2014 QCCS 5889
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
No:	500-17-032667-068
DATE:	DECEMBER 4, 2014
______________________________________________________________________
BEFORE THE HONOURABLE MR. JUSTICE MARK G. PEACOCK, J.S.C.
______________________________________________________________________
GUYLAINE L’Écuyer STeven L’Écuyer
Plaintiffs
v.
ATTORNEY GENERAL OF THE PROVINCE OF QUEBEC
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________

 

TABLE OF CONTENTS

 

INTRODUCTION............................................................................................................................ 5

ISSUES.............................................................................................................................................. 5

The Plaintiffs’ position................................................................................................................... 5

The Defence position..................................................................................................................... 8

FACTUAL OVERVIEW................................................................................................................ 10

APPLICABLE LEGAL PRINCIPLES......................................................................................... 12

Fault.............................................................................................................................................. 12

Did the Probation Officer owe a duty to the Plaintiffs under art 1457, CCQ?............................ 15

Standard of care............................................................................................................................ 17

Government policies and the role of a Probation Officer/Agent.................................................................................... 19

The Content of prior Court orders: art 810 CCC and the Suspension and Probation orders.................................. 20

Relevant Probation Conditions............................................................................................................................................. 22

Need for Expert evidence re: reasonable actions required of reasonable Probation Officer.................................... 23

Overview of Expert evidence in the present case............................................................................................................... 24

Duty #1: Obligation to make initial assessment on file of the offender beforehand, develop an intervention plan and keep notes throughout period of probation of all relevant incidents................................... 26

Governing Law............................................................................................................................. 26

Whether this obligation has been breached................................................................................ 26

Additional evidence of the Probation Officer’s knowledge of threats by the offender against the Mother............ 30

(i) JULY 12, 2004.................................................................................................................................................................... 30

(ii) AROUND JULY 19, 2004................................................................................................................................................ 32

Analysis.................................................................................................................................................................................... 32

Duty #2: Obligation to supervise offender.................................................................................. 33

(i) GOVERNING LAW................................................................................................................ 33

(ii) WHETHER THIS OBLIGATION TO SUPERVISE HAS BEEN BREACHED................. 35

Duty #3: Obligation to report to Court any breaches of judgments imposing a suspended sentence or probation...................................................................................................................................................... 50

DISTINCTION BETWEEN SUSPENDED SENTENCE AND PROBATION.......................... 51

WHETHER THIS OBLIGATION HAS BEEN BREACHED................................................... 51

(a) DURING PERIOD OF SUSPENDED SENTENCE............................................................... 51

(b)          DURING PERIOD OF PROBATION............................................................................ 52

Duty #4: Whether there was a duty for the probation service to inform the mother of the danger she faced from the offender.................................................................................................................................. 53

Law in other jurisdictions............................................................................................................ 53

A) New Zealand........................................................................................................................... 53

(i) COUCH v. ATTORNEY GENERAL..................................................................................... 53

The Supreme Court of New Zealand granted the appeal and permitted the litigation to proceed...... 55

B)  Scotland, a Civil Law Jurisdiction.......................................................................................... 55

(i)  ANN THOMSON v. SCOTTISH MINISTERS..................................................................... 55

C)  Canada: Common Law Probation Cases............................................................................... 55

D.H. v. J.H., 2008 BRITISH COLUMBIA................................................................................ 55

D.N. v. OAK BAY (DISTRICT).................................................................................................. 57

B.M. c. B.C. (ATTORNEY GENERAL)..................................................................................... 58

Quebec Civil Law as the governing Law..................................................................................... 59

QUEBEC SEEKS TO COMBAT CONJUGAL VIOLENCE.................................................... 61

Was there a breach of any duty to disclose information to the mother....................................... 63

CAUSATION.................................................................................................................................. 67

Fault causing direct and immediate damages.............................................................................. 67

Governing law.............................................................................................................................. 67

Causation: Two step test established by the Court of appeal in Ducharme............................... 71

Reasonable foreseeability defined............................................................................................... 72

Analysis........................................................................................................................................ 73

Causation and the breach of duty to supervise........................................................................... 74

Causation and the breach of duty to report................................................................................. 76

The events surrounding the threat to commit suicide, September 15, 2003............................. 76

The offender’s failure to attend supervision meetings, culminating in the failure to attend the August 12, 2004 meeting......................................................................................................................................... 77

Causation and the breach of duty to inform the mother.............................................................. 82

Novus actus interveniens and apportionment of fault................................................................. 83

Did any contributory fault by the City police cause the alleged damages?................................. 84

Did any contributory fault by the Mother cause the alleged damages?...................................... 85

Is there extra-Contractual Solidary liability?................................................................................................................. 87

What Are the Legal Consequences of This Finding of Solidary Liability................................................................. 87

Is there Any Legal Effect on the Present Action of Plaintiffs' Out Of Court Settlement with the City?.............. 88

DAMAGES...................................................................................................................................... 90

The Mother’s Claim.................................................................................................................... 90

Pecuniary Damages Claim........................................................................................................... 92

Claim for two years of lost bonus from employer ($4,635.00) that the mother did not receive for the period she was absent from work as a result of the incident........................................................................ 92

Claim for two years of missed participation in pension plan: $6,021.00..................................... 93

Mother’s non-pecuniary damages claim...................................................................................... 94

The son’s claim.......................................................................................................................... 95

Pecuniary damages claim.......................................................................................................... 95

Updated actuarial evidence.................................................................................................... 100

Additional Evidence Proposed by the Defence................................................................... 101

Decision of the Court on Ex. P-51 B and P- 51 C..................................................................... 102

Costs for future care.................................................................................................................. 102

Exhibit D-54: joint report on son's additional expenses........................................................... 102

Should his expenses be awarded to 80 years of age or for the rest of the son's life?.............. 104

Gross-up for taxes to pay on interest earned on the investment of the indemnity required to pay additional expenses.................................................................................................................................... 104

ANATOMICOPHYSIOLOGICAL DEFICIT........................................................................... 105

Functional analysis..................................................................................................................... 105

Management fees: should the Son be awarded them?.............................................................. 107

Governing law............................................................................................................................ 107

Analysis...................................................................................................................................... 109

Non pecuniary damages claim.................................................................................................... 110

Life before the Incident............................................................................................................. 110

The incident............................................................................................................................... 110

Hospitalization and rehabilitation.............................................................................................. 111

Education subsequent to the incident....................................................................................... 111

Physio and occupational therapy................................................................................................ 111

Ongoing physical and emotional challenges.............................................................................. 112

Life at home............................................................................................................................... 113

Social life and leisure activities.................................................................................................. 114

Indexed Andrews’ ceiling and non-pecuniary damages: state of the law.................................. 114

INTEREST AND INDEMNITY.................................................................................................. 120

COSTS........................................................................................................................................... 121

Expert fees for plaintiffs' expert in criminology........................................................................ 121

Other experts’ fees for plaintiffs............................................................................................... 122

Mother and the defence to pay their own costs........................................................................ 123

CONCLUSIONS........................................................................................................................... 123

 

INTRODUCTION

 

[1]       On August 27, 2004, Mr. Stéphane Picard[1] appeared out of nowhere and put a handgun to the head of his former girlfriend, Ms. Guylaine L’Écuyer,[2] while she was sitting with one of her girlfriends on the outdoor terrace of Bar Evo[3].  He appeared to be high on cocaine.  Through a ruse, she escaped from him.  He fled the scene in his car but went to her nearby home.  There, he entered the Mother's home through a back patio door which had been left unlocked. Gun in hand, he ordered her 15-year-old son, Steven L’Écuyer[4] to call his Mother at the Bar on her cellular phone.  Once she answered, the offender shot the defenceless Son once in the neck as the Mother, shocked, listened on the phone.  As the Son was crawling to escape, the offender shot him a second time point blank, again in the neck.  Shortly thereafter, as police cars approached her home with the Mother, the offender shot and killed himself.

[2]       The offender was on probation at the time for having committed conjugal violence, amongst other things, against Ms. Linda Lanteigne, his girlfriend prior to the Mother.

[3]       Both Mother and Son are suing the Attorney General of Quebec[5] based upon allegations that the Quebec probation service and in particular the offender's probation officer, Ms. Christine Tremblay[6], failed to properly exercise their probationary duties which resulted in these tragic events. The Son continues to suffer from a partial permanent disability as a result of the incident.

[4]       The Attorney General denies all responsibility.

[5]       In the original proceeding, the Plaintiffs had also sued the City of Deux-Montagnes[7] for the alleged negligence of their police force in not protecting the Plaintiffs.  The Plaintiffs settled out-of-court with the City for a sum of money, leaving the Attorney General as the sole remaining Defendant in this action.

[6]       This judgment will proceed under the following headings:

ISSUES

 

The Plaintiffs’ position

 

[7]       The Plaintiffs' position is contained in their Amended Introductory Motion dated December 3, 2013.  As damages, the Son claims a total of $3,106,165 and the Mother claims $163,387.

[8]       The Plaintiffs' assert that the offender went out with the Mother from February to April 2002 and lived with her from April 2002 till December 2002 after which the Mother asked him to leave.  They then began a second period of co-habitation on December 20, 2002 which lasted up until July 2003 and thereafter, cohabited for a third period from November 2003 to May 2004, when they separated for good.  The shooting occurred about three months later on Friday, August 27, 2004 before midnight.

[9]       The Mother admits that she knew when she and her Son began to live with the offender that the offender had been incarcerated for conjugal violence and was on probation; however, he had inveigled her into believing that it was because of a judicial error and a vengeful girlfriend.  In a pre-sentence report by psychiatrist Dr. Sylvie Lévesque, dated October 17, 2001[8], the psychiatrist concluded with the opinion that the offender had:

a) "trouble de personnalité mixte, à la fois dépendante et antisociale…Il présente par ailleurs de l'impulsivité et une pauvre tolérance à la frustration… Par conséquent, dans les circonstances de stress, monsieur pourra utiliser la violence et la menace pour en venir à ses fins, particulièrement lorsqu'il se sent débordé au niveau affectif. (…) "

[10]    In May 2004, the Mother had discovered this information in some of the belongings left behind by the offender after the Mother had asked him to leave her residence for the third and final time.  The Mother alleges that, subsequently, she was repeatedly harassed by the offender and that she advised the Probation Officer and the City police of this harassment.

[11]    Despite the fact that they have settled this same legal proceeding out-of-court with the City, the Plaintiffs continue to allege [9] that the City police were made aware of the numerous harassing calls and death threats made by the offender but did nothing to prevent such actions.

[12]    As for the remaining cause of action against the Attorney General, the Plaintiffs allege that without the negligence of the Probation Officer and probation service, the tragic incidents of August 27, 2004 would not have occurred.  They particularize this negligence as follows:

a)    the Probation Officer failed to keep a proper record of the important information she had received about the offender to ensure that the Mother's calls to the Probation Officer alleging harassment were  appropriately addressed to prevent the tragic acts committed by the offender on August 27, 2004;

b)    the Probation Officer failed to take into account or to inquire into the allegations made by the Mother regarding: (a) the indirect threats made toward her by the offender and (b) the fact that the offender had recommenced his illegal use of cocaine, even though he was still on probation;

c)    the Probation Officer failed to note all the relevant information that she should have communicated to the City police concerning the offender;

d)    the Probation Officer failed to report the alleged breaches of the probation order to the Crown prosecutor so that the probation order could be revoked, amongst other reasons, because of the conjugal violence against the Mother and cocaine use;

e)    the probation service failed to diligently revoke the probation order after the offender had made death threats to the Mother;

f)     the Probation Officer and probation service failed to take into account: (a) the failure of the offender to appear at a duly-convoked supervision meeting with her where he would have had to give explanations regarding reproaches made by the Mother about him and (b) his failure to attend at other duly-convoked supervision meetings;

g)    the Plaintiffs characterize these omissions as gross negligence and recklessness on the part of the Attorney General of Québec;

h)    as for damages, the Plaintiffs recognize that both Plaintiffs have received compensation under the provincial government's plan for the indemnification of victims of crime ( hereinafter "IVAC");

i)     however, the Mother alleges that there is still an outstanding balance owing which she is entitled to claim for all the damages she has suffered as a result of having, amongst other things,  to look after her disabled Son; and

j)      as for her Son[10],  who was 15 years old at the time of the shooting,  he continues to suffer from permanent partial paralysis on his left side and other related medical problems which allegedly prevent him from working.  While he is compensated by IVAC, there is an alleged balance owing in damages which is not compensated by this government program.

The Defence position

 

[13]    In its final summary of argument, the defence asserts the following propositions[11]:

a.    no fault was committed by the Defendant's employees and there is no causal link between any alleged fault and the damages suffered by the Plaintiffs;

b.    a probation officer/agent[12] exercises their discretionary powers in their professional judgment according to recognized norms and practices;

c.    while the decision of a probation officer/agent may be counterintuitive to outsiders, a decision taken in relation to a specific probationer may be an option along a spectrum of reasonable options in the specific circumstances;

d.    the standard to be applied is one of the reasonable probation officer/agent placed in the same circumstances;

e.    the circumstances of the particular probation case must be proven as matters of fact before the civil tribunal;

f.      in any criminal proceedings for breach of probation, the probation officer/agent may only be a witness at the criminal trial to those breaches of probation which they personally witnessed;

g.    a positive urine test does not constitute a violation of a probation order which requires abstention from drugs or alcohol. The defence says: "Les principes de droit criminel exigent que la culpabilité soit établie de manière habituelle.";

h.    the events of the incident of August 27, 2004 were not foreseeable by any reasonable probation officer/agent placed in the same circumstances;

i.      the expert opinion of the Defendant's probation expert, Mr. Lévesque, is preponderant since it is based on a contextual analysis involving the criteria of a reasonable probation officer/agent;

j.      even if there is fault, which the defence denies, any fault of the probation officer/agent was not the cause of the damages which were directly caused by the offender;

k.    there has been a novus actus interveniens (the defence does not specify what specific act);

l.      if the Court finds that the defence is at fault, which is denied, then the Court must consider other contributory faults namely those of the offender and the City police. In addition, the Court must also consider the contributory negligence of the Mother, including her frequenting the Bar known to be regularly frequented by the offender, her continued contact with the offender and her failure to take appropriate precautions despite known threats to her from the offender;

m.   since there is a confidential out-of-court settlement with the City and the Plaintiffs, the Court must attribute responsibility to the various parties who were at fault.  In such a case, the defence cannot be required to pay more damages than its attributed share of fault;

n.    since the Son has been indemnified by IVAC, these amounts must be deducted from any damage award;

o.    the damages claimed by the Son are exaggerated.  Despite the Son's claim that he be compensated for damages for loss of income as a plumber, there is insufficient evidence that he would ever have worked as a plumber.  If the job of plumber is to be used, then the figures from Emploi-Quebec are the appropriate ones;

p.    any damages claim must take into account the ability of the Son to mitigate his damages by working part-time at jobs that take into account his particular challenges. Such jobs include that of non-technical sales representative;

q.    non-pecuniary damages for the Son must be less than the January 2013 "Andrews-adjusted"  maximum limit of $310,000;

r.     no amount should be awarded for management fees for any damage award since there is nothing wrong with the Son's intellectual abilities;

s.    the monetary damages for the Mother have not been proven and in any event, the compensation being received by the Mother from IVAC is sufficient to compensate for any damages she may have suffered;

t.      as for the actuarial calculations, these have already take into account fluctuations over time and hence there should not be any additional calculation for interest or additional indemnity; and

u.    since the expertise of the Plaintiffs criminologist Mr. Roch Tremblay has no probative value, his expert costs should not be awarded.

FACTUAL OVERVIEW

 

[14]    In years prior to his meeting the Mother, the offender pleaded guilty to thirteen charges mostly in relation to his prior relationship with Ms Lanteigne, including six charges of breach of probation, one break and enter, one improper storage of firearm, and two  charges of armed assault against Ms. Lanteigne.

[15]    On December 11, 2001, the offender received a suspended sentence of two years less a day as well as two years probation[13]. Amongst the conditions were: not to disrupt public order and to be of good behaviour, to advise the court of any change of address or employment, not to frequent bars, not to consume drugs, not to communicate with the victim and to attend a program for men with conjugal violence problems. The conviction arose out of, amongst other things, an important episode of conjugal violence committed by the offender against Ms. Lanteigne.

[16]    On December 11, 2003, the suspended sentence expired and the two-year probation begins.

[17]    Now, what about the Mother’s relationship with the offender and the Mother’s contact with the probation service?

[18]    On August 2, 2002, the Probation Officer meets with the Mother in the presence of the offender.  In response to a question from the Probation Officer, the Mother says she is aware of the offender’s criminal past but she is not asked to explain her exact understanding. The Probation Officer does not inform the Mother of the details of the offender's history of conjugal violence and since the Probation Officer does not ask for the Mother’s specific understanding of what was the offender's "past", the Probation Officer cannot correct the Mother’s incorrect belief - as told to the Mother by the offender - that the conviction was “a judicial error”.

[19]    After beginning their relationship in early 2002, the Mother and the offender separate in or around September 2003.

[20]    On September 14^th 2003 in a telephone call to the Mother, the offender threatens to commit suicide. The Mother talks him out of it and drives him to the hospital. Thereafter, the Mother and the offender resume co-habitation.

[21]    The Court will now provide a more detailed analysis of the events leading up to the incident on August 27, 2004.

[22]    On May 11, 2004, the Mother requires the offender to leave her home and they separate definitively. On May 23, 2004, she finds certain of his probation records while she was cleaning up the rest of his belongings in her house. In addition to correspondence between the offender and his ex-probation officer/agent, there was a television interview with the offender in which he admitted he was a violent man. She was shocked by what she found and realized that he had lied to her about his past and the reasons why he was on probation. She kept a photocopy of the probation records.

[23]    The Mother testifies as to the following incidents she says she advised the probation agent by telephone (no date for the telephone calls is provided by Mother):

a.  the “landscaping incident” on Victoria Day weekend (May 21^st, 2004) where the offender allegedly showed up uninvited to the Mother's house and told her, her girlfriend and landscaper Mr. G. Paquette: “If I had a gun, I’d shoot all three of you” (this Court's translation);

 

b.  the “breaking and entering incident” in June, 2004 when the offender breaks into the Mother's house, a rope in hand - while she was showering - with the intent to tie her up. She claims she escaped and ran out of the house naked to seek refuge at a neighbours’ house; and

 

c.  on July 21, 2004, the offender leaves a photo of the Mother's dog (deceased one year earlier) and a threatening note on the Mother's car while she is at work: the handwritten note says that she will suffer the same fate as the dog. The Laval Police arrive to inspect the vehicle but undertake no further follow-up.  They are not called as witnesses.

 

[24]    On July 8, 2004, the Mother files a fraud complaint with the City police against the offender, alleging that he stole money from her bank account. The Mother also complains of death threats and harassment but the police only “retain” the fraud complaint.

[25]    On July 12^th, 2004, the Mother informs the Probation Officer of the offender’s dismissal from his employment.

[26]    On July 14, 2004, the offender fails to appear at his scheduled supervision meeting with the Probation Officer.

[27]    On July 30^th, 2004, the Probation Officer sends the offender a letter by mail notifying him that charges could be brought against him if he did not attend a new August 12, 2004 supervision meeting.  According to what the offender later told a duty probation officer/agent, he did not receive the written notice advising him of this new meeting until August 19^th, 2004: i.e. after the scheduled meeting.

[28]    On August 1^st, the Probation Officer takes one month’s vacation. She testifies she advised her supervisor, Mr. XY[14]  both that she was taking her vacation and of the earlier letter that she had sent to the offender convoking him to the August 12, 2004 meeting. There is no evidence that another specific probation officer/agent was substituted to supervise the offender’s file in her absence.

[29]    On August 12, 2004, the offender fails to attend the meeting required in the July 30 letter. The potential breach of probation is neither noted in any register nor in the offender’s file. 

[30]    On August 27^th, after confronting the Mother with a handgun at a local bar, the offender goes to the Mother’s house, breaks in, and shoots the Son in the neck twice, leaving him gravely injured and permanently partially paralyzed on the left side of his body.

APPLICABLE LEGAL PRINCIPLES

 

Fault

 

[31]    The relevant article from the Quebec Civil Code is:

Art. 1457. Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de préjudice à autrui.   Elle est, lorsqu'elle est douée de raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu'il soit corporel, moral ou matériel.   Elle est aussi tenue, en certains cas, de réparer le préjudice causé à autrui par le fait ou la faute d'une autre personne ou par le fait des biens qu'elle a sous sa garde.

Art. 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.     Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.     He is also bound, in certain cases, to make reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

 

[32]    In civil law, a person’s duty is to respect the rules of conduct "which lie upon him according to the circumstances, usage or law". Fault arises when there is a failure to respect “the duty" and the injury must be caused by the fault. The “rules of conduct” or the standard of conduct to apply is that of a reasonable probation officer/agent in the same circumstances and with the same information who exercises their discretion in a reasonable manner.[15]

[33]    In the leading Supreme Court of Canada case of Chartier v. PGQ,[16] Mr. Justice Pratte, in the minority but concurring in the following statement regarding rules of conduct (in that case, of Q.P.P. policemen), said:

« Ceci étant, voyons maintenant si les agents de la Sûreté ont, en exécutant l’ordre contenu au mandat d’arrestation vraisemblablement délivré à leur demande, commis une faute au sens de l’art. 1053 C.c.Q. Pour savoir si les agents ont commis une faute, il faut se demander si leur conduite a, dans l’espèce, été celle d’une personne avisée et soucieuse des intérêts d’autrui, placée dans les mêmes circonstances que celle où ils se trouvaient (Mazeaud et Tunc, Responsabilité civile délictuelle et contractuelle, 6e éd., t. 1, n° 439, p. 504 et note 3, page 505; Compagnie des chemins de fer nationaux du Canada c. Vincent.)^[17]

 

Les qualités de cette personne avisée et prudente dont le comportement doit nous servir de critère varient suivant les circonstances. Esmein et Ponsard (Aubry et Rau, Droit civil français, 76 éd., t. 6, p. 527) soulignent précisément la diversité du type de comparaison:

 

Ce serait une erreur, toutefois, de croire que le type de comparaison, auquel on se réfère pour juger la conduite des hommes, est unique et immuable. Il varie, en réalité, selon les situations.

 

   Nul ne conteste qu’un professionnel doit, dans l’exercice de sa profession, faire preuve de connaissances et d’une habileté que ne possède pas un bon père de famille quelconque; d’ailleurs celui qui entreprend, sans être professionnel, une tâche exigeant des connaissances techniques, est également responsable des fautes que ne commettrait pas un homme du métier.

[…]

... Il s’agit là d’autant de types particuliers qui, supposant la possession de certaines connaissances ou d’une certaine habileté, ne se confondent pas avec le modèle général du bon père de famille ou de l’homme avisé quelconque.

 

Planiol (Traité élémentaire de droit civil, 1P éd., t. 2, n° 865 bis) écrit: «La tâche du juge est toujours la même, elle consiste à comparer l’activité de l’auteur du dommage à l’activité normale et régulière d’un homme exerçant la même profession».

  

And at p. 515:

 

   J’en viens donc à la conclusion que les agents de la Sûreté étaient au courant que l’arrestation de Chartier était ordonnée pour une fin autre que celle prévue à l’art. 38 de la Loi des coroners qui est d’ailleurs spécifiquement mentionné au mandat d’arrestation. Les agents n’étaient pas nécessairement de mauvaise foi, mais dans les circonstances, leur bonne foi n’est pas une excuse: leur faute consiste à ne pas avoir su ou à s’être trompés: (Planiol et Ripert, précité, n° 522, p. 705).

 

   En procédant à l’arrestation de Chartier dans les conditions où ils l’ont fait, les agents de la Sûreté n’ont pas eu la conduite d’«une personne avisée et soucieuse des intérêts d’autrui»: ils ont commis une faute qui engage leur responsabilité et partant celle de l’intimé. »

(The Court's emphasis)

 

[34]    While a common law case from the Supreme Court of Canada , the following principles from the Hill[18] judgment  have application when considering the probation officer/agent’s duties in the present case:

a.  in dealing with a standard of care, the applicable standard is a "range of reasonableness", the courts cannot expect perfection as judged with the advantage of hindsight; and

b.  allowance must be made for minor errors or errors in judgment[19].

 

Did the Probation Officer owe a duty to the Plaintiffs under art 1457, CCQ?

 

[35]    For the reasons that follow, the Court finds that such a duty did arise and that it was breached.

[36]    A frequently cited civil liability case demonstrating the overlap of the common and civil law traditions is Ouellet v. Cloutier, [1947] S.C.R. 521. In this case, a 10-year-old boy was seriously injured by a spinning drum shaft while helping a farmer work in his barn. The Supreme Court of Canada dismissed the plaintiff’s action in damages under art. 1053 CCLC because the farmer’s actions were those of a reasonable person.  Mr. Justice Tascherau wrote: “On doit se prémunir contre un danger à condition que celui-ci soit assez probable, qu’il entre ainsi dans la catégorie des éventualités normalement prévisibles” (page 526).  In his concurring reasons, Mr. Justice Kellock noted explicitly that: “[…] there is no difference between the civil law and the common law as to the principles applicable to such a case as the present” (page 528).

[37]    The Ouellet case was cited recently by the Supreme Court of Canada in a class action defamation case from Quebec, Bou Malhab v. Diffusion Métromédia CMR Inc., 2011 SCC 9. The Supreme Court of Canada relied on Ouellet to support the proposition that, under article 1457 CCQ, “[t]he reasonable person acts in an ordinarily informed and diligent manner.  He or she shows concern for others and takes the necessary precautions to avoid causing them reasonably foreseeable injury (para 40).”

[38]    The Ouellet case was raised by the appellants in Stations de la Vallée de St-Sauveur inc. c. M.A., 2010 QCCA 1509, in order to try and limit liability by applying the principle of reasonable foreseeability (see para 37). The Court of Appeal dismissed the appeal, but accepted the principle.

Moreover, the Court of Appeal also cited Ouellet in Paquet c. Longpré, 2009 QCCA 1378:"          [73]     À cet égard, la Cour suprême dans l’arrêt Ouellet c. Cloutier a rappelé qu’une personne raisonnable n’est pas tenue de prévoir tout ce qui est possible, mais bien ce qui est normalement prévisible. "

 

[39]    While the Court is not governed by common law principles, it is instructive to consider the development of the relevant law in common law jurisdictions both in this country and elsewhere. That jurisprudence deals with problems similar to this case: an innocent third party is injured by a wrongdoer who has been released from custody or probation and placed in a particular situation in the general population as a result of an impugned act or omission either by prison officials or probation officials acting in their official capacities. Put schematically, the issue is whether in a legal action of A v. B (where B is a state authority), B is responsible for damages suffered by A at the hands of C who commits some form of criminal assault.

[40]    The relevance of the common law analysis can be seen from the 2008 B.C. Court of Appeal case of D.H. v. J.H. (Guardian ad litem of)[20].

[41]    The plaintiff mother and her young son sued the provincial probation service for the sexual assault by a wrongdoer who was living in their residence after he had been released on probation.  The probation order required that he not have any unsupervised contact with children.  The probation officer/agent, prior to the placement of the wrongdoer in a suite in the mother's home, had not advised her that the wrongdoer had been previously convicted of sexual offenses against young boys.  The mother knew, however, that the wrongdoer was not supposed to be in unsupervised contact with children.

[42]    The British Columbia Court of Appeal decided in  that case:

«31. The threshold question in a negligence action is whether a duty of care is owed by the alleged wrongdoer to the plaintiff. If so, the questions are whether the alleged wrongdoer breached the standard of care, whether that breach caused the injury complained of, and whether damages were sustained. In most private disputes the threshold question is not troublesome - a driver owes a duty of care to others on roadways, a doctor owes a duty of care to his or her patient, a manufacturer owes a duty of care to those who may buy the product.

 32.  However, in claims against public officials the question of the existence of a duty of care bumps up against the role of government, the necessary delegation by government of its functions to public officials, the delicacy of some of those government functions, the Courts' deference to the government function, and the historic caution of the Courts in assessing damages against the public purse for deficiencies in performance by public officials. The first question in a negligence analysis, whether there is a duty of care, functions as a brake on findings of public liability. The degree to which it is a brake is one of the issues before us. I consider that a fair reading of the recent cases from the Supreme Court of Canada, and in particular Hill, leads to a conclusion that the braking function of the duty of care issue is not as sharp as once thought.

 

Standard of care

 

[43]    Article 1457 refers to «the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

[44]    What this Court must do is determine whether the rules of conduct that apply to the duty of the probation officer/agent and the probation service: (a) have been broken or not and (b) if so, whether they are the direct immediate cause of the damages alleged.

[45]    In determining the rules of conduct, the Court has considered the following jurisprudence.

[46]    In the 2007 Supreme Court of Canada Hill judgment, that Court found that the standard of care of a reasonable police officer in the circumstances should be applied in a manner that gives due recognition to the discretion inherent in a police investigation:

" [72] Finally, authority supports the standard of the reasonable police officer similarly placed.  The preponderance of case law dealing with professionals has applied the standard of the reasonably competent professional in like circumstances. (See Klar, at p. 349; see also the reasons of the trial judge at para. 63.) The Quebec Court of Appeal has twice stated that the standard is the ordinarily competent officer in like circumstances.  (Jauvin v. Procureur général du Québec, [2004] R.R.A. 37, at para. 59, and Lacombe v. André, 2003 CanLII 47946 (QC CA), [2003] R.J.Q. 720, at para. 41).

 

   [73] I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances.  This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation.  Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court.  A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness.  So long as discretion is exercised within this range, the standard of care is not breached.  The standard is not perfection, or even the optimum, judged from the vantage of hindsight.  It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information.  The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359).  Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care.  The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. (See Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon 2005 CanLII 1403 (ON CA), (2005), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.) "

(this Court’s emphasis)

 

[47]    These passages were cited with approval by the Quebec Superior Court in Boisvenu c. Sherbrooke (Ville de)[21] and by the Québec Court of Appeal in Laval (Ville de) v. Ducharme.[22]

 

Government policies and the role of a Probation Officer/Agent

 

[48]    In determining the standard of care to be applied, the Court needs to look at the government policies - filed on behalf of the defence - related to conjugal violence as well as the role of the probation service in the social reintegration of offenders.

[49]     The Philosophie d’intervention en matière de réinsertion sociale aux Services correctionnels du Québec[23] highlights the importance of risk evaluation and exchange of information with “concerned partners” involved in the discretionary process of social reinsertion.

[50]     The Politique d’intervention en matière de violence conjugale [24] requires any state interveners, such as the probation service, to consider needs of conjugal violence victims. This policy calls for identification and careful monitoring of conjugal violence cases.[25] The Ministère de la sécurité publique has required that victims of conjugal violence be informed where their partners or former partners are released and on what conditions.[26] Moreover, the policy indicates that the right to life has pre-eminence over other considerations of confidentiality under the Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personnels[27]. The offender’s specific criminal/probationary situation must now be reviewed in the context of these general policy guidelines.

[51]    In the present case, the offender had been previously convicted of armed aggression, break and enter, breaches of an undertaking and death threats:  all in the context of conjugal violence.

[52]    On December 12, 2001, the offender was found guilty by his Honour Judge Tarasofsky and was sentenced to a suspended sentence of imprisonment of two years less a day followed by two years probation in one of his Court files.[28]

[53]    In six other files, on September 9, 2002, the Judge sentenced the offender to a suspended sentence of imprisonment of six months also followed by a period of two years with conditions.  In a connected file, the order for probation was for three years.[29]

The Content of prior Court orders: art 810 CCC and the Suspension and Probation orders

 

[54]    It is important to review the offender’s file documents and criminal record, as these informed or should have informed the probation service about the offender.

[55]    Ms. Brochu, the offender’s first common-law spouse, lived with the offender for approximately 14 years from 1980 to 1994.  She has two daughters: the offender is the father of one daughter.

[56]    The offender was verbally aggressive towards her, making threats and in fact, making a death threat as well.

[57]    Ultimately, an order was issued under article 810 of the Criminal Code of Canada requiring the offender to keep the peace following his threats against Ms. Brochu.

[58]     The offender’s second common-law spouse, Ms. Lanteigne testified as to the incident which involved the incarceration and the criminal conviction of the offender referenced above in paragraphs 52 and 53.

[59]    Ms. Lanteigne was a forthright witness who had only ever spoken to the Mother three weeks prior to the present trial.  She testified that she had been very relieved when she had learned that the offender was dating the Mother (after Ms. Lanteigne and he had separated) since this meant that he would stop harassing her.

[60]    Ms. Lanteigne lived with the offender from January to September 2000.  They both worked for the same employer.  At the time, she had a nine-year-old son.  She openly admitted that she had consumed cocaine with the offender and that this was an important part of their life together.

[61]    When she and the offender separated, she permitted him to stay in her apartment and she left.  When she went back on one occasion to recover some possessions, she found a hunting rifle on a table with photos of herself.  She was very frightened and got rid of the rifle.

[62]    The offender’s assault on her occurred at 5:30 AM one morning while she was at work.  She was in the office doing her job, with one other dispatcher, dispatching vehicles for her employer.

[63]    The offender jumped her from the back and put a knife to her throat and said he was going to kill her. She indicated that she was prepared to go with him as a means of saving herself.  She could see clearly that the offender was under the influence of cocaine.

[64]    He dragged her through the office keeping the knife to her neck.  After she said she would get back together with him, the offender let her go and then left the office himself.  She called the police and he was arrested.

[65]    Ms. Lanteigne indicated that she met with a probation officer/agent concerning the offender and told the probation officer/agent the following:

a)    the offender once threatened that he would go to her son’s primary school, find her son and kill him.  She contacted the director of the school regarding the threats, the school instituted protective measures and nothing further happened;

b)    after their separation, the offender would call her daily on the telephone to harass her;

c)    he broke into her apartment, took her chequebook and falsely endorsed a cheque which he cashed at her bank; and

d)    the offender laid a criminal complaint against her accusing her of death threats to which she ultimately pleaded guilty.

[66]    She was contacted by another probation officer/agent when the offender was eligible for parole.  She was so frightened of what the offender would do to her that she moved to her mother's house outside of the City of Montréal and hid out there for a year.  During this period, she remained unemployed and “in hiding” simply to avoid any further threats from the offender.  She learned through common friends that the offender had started to go out with the Mother. This information came as a great relief to Ms. Lanteigne who correctly believed this would focus the offender’s attention away from her. 

[67]    As a result of the aforementioned attack, the offender spent six months in custody prior to trial.

[68]    Thereafter, on December 12, 2001, his Honour Judge Tarasofsky of the Court of Quebec, District of Montréal, issued a suspended sentence granting the offender a conditional release from detention for a period of two years less a day.^[30]

[69]    The conditions imposed on the offender by the Court at that time required the offender, among other things: not to disrupt public order and to maintain good behaviour; to respond to any summons issued by the Court; to advise the Court with haste of any change of address or name, or any change in his employment status; to take all necessary measures to find employment; not to consume alcohol or drugs; not to be present in any bars or licensed establishments and not to consume alcohol at any restaurant; not to possess any firearms or imitation of firearms, explosives, or ammunitions; not to communicate with or be in the presence of his victim, Linda Lanteigne; and to attend and complete a reintegration program for men with conjugal violence problems.

[70]    In the same judgment, Judge Tarasofsky issued a probation order that would take effect on December 11, 2003 and remain in effect for a period of two years, until December 10, 2005.^[31]  This probation order imposed the same conditions with the exception of the requirement to attend the program for violent men.^[32]  The Judge also issued a similar probation order for three years on a related charge. Accordingly, at the time of the tragic events of August 27, 2004, the offender was subject to probationary conditions, the breach of which could lead to criminal prosecution.

Relevant Probation Conditions

 

[71]    In summary and for the purposes of the present proceedings, the relevant conditions attached to the probation were:

                                                i.    not to be found within 300 meters of Ms. Lanteigne's home or workplace nor to communicate with her, her family or friends;

                                               ii.    take the necessary steps to find employment;

                                             iii.    abstain from consuming alcohol or other illegal substances and from being found in bars, discotheques or other licensed establishments including restaurants with alcohol permits, except for the purposes of having a drink over supper;

                                              iv.    own or carry any offensive weapon or restricted weapon or arms including starting pistols and handguns, firearms, crossbows, prohibited weapons, restricted weapons, ammunition, prohibited ammunition, explosives substances, and knives ;

                                               v.    to reside at […], St-Joseph-du Lac; and

                                              vi.    to present himself to the probation officer/agent in the manner and at the times fixed by the probation officer/agent.

[72]    The same conditions applied to the suspended sentence as the probation order with the exception that the requirement to follow a therapy for violent men was required for the probation.  The offender did successfully participate in such a program.

Need for Expert evidence re: reasonable actions required of reasonable Probation Officer

 

[73]    The Court turns now to analyze the governing law on the duty of a probation officer/agent, including the use of expert evidence to establish the limits of any duty. The Court adopts the governing principles in matters of experts as stated by Madam Justice Suzanne Hardy-Lemieux [33]:

[48]   Le rôle de l'expert est d'aider le Tribunal à comprendre la technicité du problème soumis[10].  L'opinion de l'expert ne saurait lier le juge d'instance.

[49]   Il revient au Tribunal de décider de la crédibilité qu'il doit accorder à un expert.  Celle-ci s'apprécie en prenant en considération le sérieux des démarches faites par l'expert à l'étape de la cueillette des données, le lien entre l'opinion de l'expert et la preuve factuelle recueillie lors de l'audience, l'objectivité et l'impartialité dont fait preuve l'expert[11].

[50]   Monsieur le juge Gendreau résume ainsi le rôle du juge de première instance à ce sujet:

                     « [20] Cela dit, le témoignage du témoin ordinaire est une preuve au même titre que celui de l'expert.  Le juge doit donc la recevoir comme telle, en évaluer la légalité, l'utilité et la force probante comme il le ferait pour toutes les autres.  Il peut donc lui accorder un poids plus ou moins grand selon le contexte de son analyse.  Cela découle du principe général que j'ai évoqué plus tôt suivant lequel le juge est le maître des faits.  Dès lors, de la même manière qu'il peut rejeter une expertise, il peut donner à une preuve profane un rôle prédominant ou négligeable.

 

                     [21] Je conclus donc que le juge a le devoir d'examiner toute la preuve pour former son opinion et que, dans le cadre de son analyse, il peut retenir ou rejeter tout témoignage, qu'il soit scientifique ou ordinaire, et doit déterminer l'importance relative des preuves qu'il retient pour dégager sa conclusion.  Il n'y a donc aucune preuve qui soit, par définition, prioritaire ou qui doit être privilégiée.»[12]

 

Overview of Expert evidence in the present case

 

[74]    Both sides produced expert evidence. For the Plaintiffs, Mr. Roch Tremblay was qualified as an expert in addiction and in criminology while, for the defence, Mr. Denis Lévesque was qualified as an expert in criminology.

[75]    Neither expert developed their opinions using as headings the three main duties of the Probation Officer as drawn from the relevant legislation:

a)    initial assessment and record keeping;

b)    supervision and counselling of the offender; and

c)    reporting potential probation breaches to the Crown and assisting in any prosecutions for breach of probation.

[76]    However, the Court determines that the appropriate paradigm within which to analyze the Probation Officer’s and the probation service’s actions should focus on whether these three duties were met. The Court will also analyze whether there was a fourth duty to inform the Mother of any danger she faced from the offender.

[77]    Mr. Tremblay is a long time "chargé de cours" at the University of Montréal. He holds a Masters in Criminology and had done the course work for his doctorate. He had extensive consulting experience in dealing with young offenders and with persons facing addiction issues but had never himself worked as a probation officer/agent.

[78]    His expertise focused on the overall psychological state of the offender.  He concluded that the mixture of cocaine and antisocial personality as well previous threats made by the offender should have caused the Probation Officer to have very serious reservations. He concludes that the escalation of the frequency of the harassment and threats by the offender towards the Mother required that the Probation Officer tighten up her supervision of him and report to the authorities the events of which the Probation Officer was aware and which might have lead to either the modification or the revocation of the probation.

[79]    Mr. Tremblay questions the efficacy of supervision meetings for the offender who he classified as anti-social and who was in a period of crisis.  This premise was questioned by counsel for the defence and rightly so, since there was no evidence that the offender was a psychopath or a sociopath but rather that he had personality troubles with tendencies towards dependent behaviour and antisocial behaviour.

[80]    However, the Court is persuaded by one particular expert opinion of Mr. Tremblay and that is that the Probation Officer should have suggested to the City police that consideration be given to obtaining an article 810 CCC order to have the offender not contact or approach the Mother. Since there were no supervision meetings - in May and June 2004 - between the offender and the Probation Officer, the Probation Officer only found out about the definitive separation of the couple in her conversation with the Mother on July 7, 2004. Learning what she did from that conversation, the Probation Officer should have seen the offender’s same pattern of rejection-jealousy-violence unfolding anew as had played itself out with both Ms. Brochu and Ms. Lanteigne in the past. 

[81]    It must be remembered that the offender’s file with the probation service noted that an order under article 810 CCC had been obtained to protect Ms. Brochu and her family. The Court understands that Ms. Brochu was not harmed after this. There is no evidence as to why the Probation Officer did not suggest this approach, which had a probability of producing positive (and protective) results.

[82]    On the other hand, the expert evidence of Mr. Lévesque was more focused on what he considered to be the principal objectives of a probation officer/agent: foreseeability, prevention and protection.

[83]    In this regard, his experience is more directly relevant than that of Mr. Tremblay.  While his academic background was less advanced: he had completed his course work for a Masters in criminology but had not earned the degree, his professional life has been spent working for Corrections Canada.  He was a probation agent from 1977 to 1982 and a supervisor of probation agents from 1982 to 1989.  From 1996 to 2000, he had been involved in therapy for men who had problems with conjugal violence.  His career path was one with increasing levels of responsibility for the federal probation service, including training federal probation officers/agents.

[84]    As the Court will explain shortly, certain of the premises upon which Mr. Lévesque based his report have not been proven and this will reduce the probative value of his conclusions accordingly. The same applies for some of Mr. Tremblay’s testimony.

[85]    Mr Lévesque concludes that the nature and intensity of the supervision provided by the Probation Officer were congruent with the risk and needs of the offender.  He also found that the Probation Officer's supervision - as far as information, assistance, and counselling to the offender for the purpose of social reinsertion - was adequate.  He found that when the risk increased in September 2003 and then in July 2004 that the probation agent increased her level of supervision and involved the police "dans la surveillance". 

[86]    The defence expert Mr. Lévesque opines that based on the Ministry of Public Security's website and its Internal Policies that "the offender remains the principal actor regarding his social insertion for which he has an important responsibility both for his social reintegration and his behaviour."

[87]      The legal context makes it clear that both the offender and the Probation Officer have important roles and it does not advance the present legal debate to seek to try to put more importance on one actor as opposed to the other.  In fact, in another Public Security Ministry document, the Ministry says that the responsibility for social reinsertion is shared between the convicted person, the correctional interveners, managers of the government departments and the community organizations that offer activities and services.[34] Accordingly and with respect, the Court is not convinced by Mr. Levesque's opinion. On the contrary, the Court determines that the important role of the probationer does not diminish the important role of the Probation Officer regarding social reinsertion.

Duty #1: Obligation to make initial assessment on file of the offender beforehand, develop an intervention plan and keep notes throughout period of probation of all relevant incidents

 

Governing Law

 

[88]    The Internal Policy requires that the probation agent collect a minimum of objective and measurable data which may serve to support her evidence in any Court proceedings.[35]  As the Internal Policy says :

" De fait, ces données servent de garantie, aussi bien pour l'agent de probation que pour le probationnaire concernant la nature et la qualité des services fournis d'une part et reçu d'autre part."

Whether this obligation has been breached

 

[89]        The burden of proof rests on the Plaintiffs to prove on the balance of probability that the Probation Officer failed to record relevant information in the offender’s file and that any such failure led to a breakdown in the Probation Officer’s requirement to supervise.

[90]        This analysis begins with the testimony of Ms. Lanteigne, who, the Court found to be truthful. She admitted to drug abuse and that she had pleaded guilty to an offence against the person following a complaint by the offender. She testified in detail as to what she had told a member of the probation service when she was interviewed prior to the offender’s sentencing hearing. The offender had threatened to harm her 9 year old son. The school authorities were advised to take precautions and the son was not allowed to go or come from school unaccompanied. There is no mention of this important threat in any of the records filed for the offender in relation to the probation service.

[91]        The probation records[36] indicate that the offender threatened to kill Ms. Brochu and her two children (01/06/11). Besides, Ms. Brochu complains of continuing harassment by the offender. The records do indicate that the offender says that "if I can’t have her, no one else will» and «it does not matter if I get 25 years in jail" (01/07/06) (this Court’s translation).  The offender threatens suicide (01/07/13).

[92]        The Probation Officer confirmed that she read the Court file for the offender before being given his case to supervise.  This included the psychiatrist's pre-sentence report.  Having such background information was necessary for her to develop the individualized intervention plan for the offender.

[93]        The Probation Officer was responsible for the offender’s file from February 8, 2002 to January 2003 and then there was a hiatus during which he was considered to require less direct and less monitored supervision and was under what was called “technical supervision”[37].  After his threatened suicide in September 2003, the Probation Officer was again assigned as the primary probation officer/agent for the offender.  She continued in this role up to the time of the tragic incident and the self-inflicted death of the offender on August 27, 2004.

[94]        The probation order obliged the offender to advise the court “with haste” of any changes of address or name or any change in his employment status and to take all necessary measures to find employment.

[95]        The Internal Policy establishes a variety of means for a probation officer/agent to meet their record-keeping obligation. First of these means is the keeping of a specific file in which the probation officer/agent notes the nature and chronology of their interventions and the events which concern the offender as a means of facilitating the application of the probation order and also to facilitate the following goals:  to confirm the nature and quality of services furnished by the probation officer/agent, to evaluate the application of the practices and policies of the "Direction" , to constitute a constant record of the probation services and for future research purposes. In addition, the Internal Policy requires that if a probation order does not provide for a specific frequency of supervision meetings between offender and probation officer/agent, the probation officer/agent must fix such a frequency which may be formalized by an undertaking signed by the offender.[38]

[96]        The burden of proof rests on the Plaintiffs to show on the balance of probability that the Probation Officer failed to record relevant information in the offender’s records and that this lead to a breakdown in the Probation Officer’s duty to supervise. As has been noted, the Plaintiffs have the obligation to prove what the Mother told the Probation Officer, whether the offender’s file properly records this information and whether the Probation Officer acted appropriately on this information.

[97]        There are major contradictions in the testimony between the Mother and the   Probation Officer as to what the Probation Officer was told.

[98]        In addition to her testimony, the Mother filed into evidence a diary which she said that she started to keep because it was good therapy for her.[39]

[99]        There are 21 pages filed from this diary which run discontinuously from September 14, 2003 up to August 19, 2004.

[100]     The Mother testifies to three extraordinary incidents in which she was threatened by the offender.  Nowhere in her diary does she refer to the first two incidents and nowhere in her diary does she refer to advising the probation agent of any of the three incidents.

[101]     In summary form, these three incidents, as testified to by the Mother, are :

a)    the Victoria Day weekend [May 21, 2004], the "landscaping" incident. The Mother was having a mutual friend of the offender and her, a Mr. Ghislain Paquette, do certain landscaping work around her house. After completing the day's work, Mr. Paquette was chatting inside the Mother's house with her and Ms. Claudia Lapierre, one of the Mother’s girlfriends. Unannounced and uninvited, the offender comes in to the Mother's house and says to the three persons:" If I had a gun, I would shoot all three of you" or words to that effect. When Mr. Paquette testified, he had no recollection of this incident. Moreover, the Mother did not call her girlfriend as a witness to corroborate her testimony. The Mother testified that she told this incident to the Probation Officer but there is no record of this at all in the offender’s file. The Court determines that this incident was so important that it is inconceivable that the Probation Officer would not have noted it, had the Mother told her. Accordingly, the Court finds that Mother has not proven on the balance of probabilities that she notified the Probation Officer of this incident;

b)    the “rope incident": at a date in June, 2004 which the Mother does not specify, she testifies was in her home shower when the offender entered with a rope.  Without any clothes on, she was required to run out of her house to escape the offender who wanted to tie her up. She ran to a neighbour’s but unfortunately the neighbour was not there.  Fortunately, she was able to wait until the offender left the area at which time she returned to her home.  Again, the Mother said that she told the Probation Agent about this frightening incident.  There is no record of the incident either in the Mother’s diary or in the offender’s file.  The Probation Officer testifies that she was never told of this incident, just as she was never told of the landscaping incident.

The Court determines that this is also such a horrific event that if the Probation Officer had been told, she would have taken note of same.  The Mother's sister testified that the Mother told the sister about the incident.  However, there is no record of the Mother ever speaking to either the Probation Officer or the City police about this frightening behaviour by the offender.  Accordingly, the Court determines that the Mother has not proven on the balance of probabilities that she told the Probation Officer.

c)    the "dead dog photo incident": on July 21, 2004 the Mother testified - and also noted in her diary - that she left her employer’s office in Laval at 16:25 hours. When she arrived at her car in the parking lot, there was a photo of her dog-that had died the previous year in unusual circumstances- placed on her car. The Mother testified at trial that there was a note on the back of the photo -in the handwriting of the offender-saying that the Mother would suffer the same fate. Her diary mentions the photo but makes no mention of the note. The Laval police apparently checked for a car bomb - which was the main concern of the Mother - and there was none.  The report of the Laval police has a notation that the complaint was unfounded.  The Laval police were not called to testify. A police report was filed into evidence, stating that her complaint was “non-fondé.”^[40]  The report reads:

" […] suspect non-fondé, Mme Guylaine L’Écuyer (64-11-19) m’informe qu’il avait une photo de son chien décédé, il y a un an, selon Mme c’est son ex Stéphane Picard (67-04-02) qui l’a mise là mais aucune preuve, elle pensait qu’il y parraît [sic] avoir d’autres cons[???] suspect - NON FONDÉ "

[102]         The Mother asserts that she informed the Probation Officer about this incident by telephone on the same afternoon. In her diary, the Mother states that this call lasted 30 minutes. The cell phone records confirm that a call was made from the Mother’s cell phone to the Probation Officer’s office on July 21 at 16:39 hours, which lasted only one minute. ^[41] There is no corroborative evidence indicating whether or not another call was initiated by the Mother on a different telephone line.

[103]         The Probation Officer’s file on the offender does not mention the specific facts although they do note a call on an undisclosed date between the 20th and 21st of July, 2004 in which the Probation Officer spoke to the Mother.

[104]         That note mentions also that the Probation Officer spoke with Mr. Kessler of the City police who told her that the Mother should make a complaint even for an indirect threat.  The note says that the Probation Officer called the Mother and the latter said she would go to the police station.  The Probation Officer’s note also says that the Mother told her that the offender was consuming drugs again and that his friends were saying this "off the record" because they were afraid of him.

[105]         A critical piece of evidence was never put before the Court. Where is the dog photo with the offender's handwriting? If it had been provided either to the City police or to the Probation Officer by the Mother, it was evidence of a direct threat since it was in the handwriting of the offender.  This photo was not put into evidence before this Court and no explanation for this omission was given by the Mother or her counsel.

[106]         Nonetheless, there is sufficient corroboration to at least prove - on the balance of probabilities - that the Mother made the Probation Officer aware on or about July 21, 2004 that unnamed persons were saying that the offender was back to consuming cocaine and as well, that the Probation Officer was advised by the Mother of some "indirect threats" by the offender to the Mother.

[107]         The Mother and the Probation Officer’s testimony on whether the Mother informed the Probation Officer of the “dead dog incident” are contradictory. Since the Probation Officer would have probably noted such important information in the offender’s file, the Court determines that the Mother has not proven her alleged phone call regarding the dead dog incident to the Probation Officer on the balance of probabilities.

 

Additional evidence of the Probation Officer’s knowledge of threats by the offender against the Mother

 

(i) JULY 12, 2004

[108]         On July 12, 2004, the Mother alleges that she called the Probation Officer to tell her that the offender had stolen money from the Mother’s bank account. Telephone records indicate three calls from the Mother’s cell phone to the Probation Officer on that day.^[42]  The Mother had filed a complaint to the City police concerning this incident.^[43]  The Probation Officer testified that she did not report this as a breach of probation to the Crown because the police must investigate such an incident and report it themselves.^[44]  Accordingly, the Probation Officer did not contact the City police immediately about this allegation.^[45] 

[109]         The Mother also testifies that she informed the Probation Officer that the offender was threatening her indirectly, via a third party (as described below), and told her that “il prépare quelque chose”, i.e. the offender was preparing something in relation to the Mother.^[46]

[110]          Moreover, on the same day, July 12, the Probation Officer writes in her notes that, according to the Mother, the offender was terminated from his employment because his boss was frightened of him.  The Probation Officer testifies that the offender did not tell her this himself, but that it was merely information coming from the Mother, on which she was not entitled to act.

[111]         Plaintiffs' counsel notes that this information regarding termination clearly contradicts the excuse later volunteered over the telephone by the offender to the duty probation officer/agent that he could not attend the August 14, 2004 meeting as required by the Probation Officer, since he was too busy at work.^[47]

[112]         The Probation Officer did not discuss with the offender the Mother's complaint about the theft from her bank account because she did not want to anger him.^[48]  The Probation Officer also did not discuss with the offender the Mother’s claim that the offender had threatened her, or the offender’s assertion that he was “planning something.”^[49]

[113]          Furthermore, the Probation Officer did not take any steps to verify whether or not the offender had in fact lost his employment.  The Probation Officer testifies she did contact Detective Sergeant Kessler of the City police on or about July 20, 2004 concerning the offender’s alleged indirect threats. She was told that the Mother could make a complaint to the police even on a merely “indirect” threat i.e. Mr. Picard telling a third party that he intended to harm the Mother.^[50]

(ii) AROUND JULY 19, 2004

 

[114]         According to the Mother’s examination on discovery of July 19 2007, the offender’s former employer, Mr. B. Mercier, informed the Mother that he had fired the offender from his employ for stealing gasoline.  Mr. Mercier stated to the Mother that the offender had made numerous threats against the Mother, but Mr. Mercier told her that he did not personally believe that the offender would act on them.^[51]  Mr. Mercier refused to make a formal statement about this to the police.^[52]

[115]         The Mother recounts in both her personal diary and in her examination on discovery that she reported this conversation to both the Probation Officer and Officer Riendeau of the City police. She states that the Probation Officer advised her to consult a psychologist to help her deal with it.  No corroborating evidence of those two conversations was produced.

[116]         Again, the Court must ask itself why - if the Mother did make such calls - there were no written notes made either by the two recipients of the calls: i.e. the Probation Officer and the City police. The Court is left to infer that the Mother is mistaken in her recollection as to reporting these calls. Accordingly, the Court determines the calls were not proven.

Analysis

 

[117]         In the following respects, the Probation Officer failed in her duty to take reasonable steps to record information about the offender’s failure to respect the probation order.

[118]         Firstly, the probation order states that the offender was “not to disrupt public order and to maintain good behaviour”:

 

1.      On July 8, 2004, the Mother filed a fraud complaint against the offender with the City police.  The Mother's phone records corroborate her allegation that she called the Probation Officer on July 12, 2004. The offender’s file with the probation service also confirms on that date that the Mother had advised the offender that she had called the Probation Officer and the Mother also advised the Probation Officer that the offender had emptied her bank account and that she had filed a police complaint with the City police. The Mother also told the Probation Officer that he had indirectly threatened her on several occasions. The Mother also told the Probation Officer that she would communicate with the police as required; and.

2.      The offender’s file does not note that the Probation Officer made any direct inquiries either, to the offender or to the City police, concerning the alleged improper tampering with the Mother’s bank account by the offender. 

 

[119]         Secondly, the probation order states that the offender was obliged “…to advise the Court with haste of any change of address or name, or any change in his employment status; to take all necessary measures to find employment…” (this Court's translation):

                                                    (i)    the Probation Officer did not keep any employment records of the offender on file, nor did she know his employer’s name, address or telephone number; [53]

                                                   (ii)    the Probation Officer took no measures to determine whether the offender was still employed, even after the Mother told her on July 12, 2004 that the offender had been fired from his job at Rebut Mercier for stealing gasoline.  [54] This evidence contradicts the offender's own statement left in a message to the Probation Officer two days later that he was working “mixed-up hours”.[55]  The probation order was clear about the requirement to find work. The Probation Officer’s note in the offender’s file on July 12 indicates that the Mother told her that the offender was fired because the boss was afraid of him.  Whether the cause of the firing was theft or threats, both acts were in contravention of the probation order requiring good conduct and keeping the peace.

                                                  (iii)    The Court determines that the failure by the Probation Officer to follow-up on the work status of the offender was an important breach of her duty to keep proper records, particularly when the Probation Officer knew or should have known the offender's proclivity to not tell her the truth.

 

Duty #2: Obligation to supervise offender

 

(i)        GOVERNING LAW

 

[120]     The following interconnected system of provincial laws, internal policies from the probation service and provincial policies on conjugal violence, are all useful to establish the standard of care required of a Québec probation officer/agent, particularly since they come from the Probation Officer’s employer.

[121]     Article 210 of the Loi sur le système correctionnel du Québec, LRQ c S-40.1 (LQ 2002, c 24, which came into force after August, 2004, describes the two-fold objective of correctional services as: (1) protection of society and (2) social reintegration of the offender.

[122]     However, the job description that was in existence at all relevant times makes these two objectives also the duty of the Probation Officer during the relevant period of this case.  In addition, that job description required the following of a probation officer/agent:

a) to ensure the respect of the probation conditions imposed on the offender (paragraph 4.5);

b) while exercising authority, to be able to develop a relationship with the offender to assist in situations where there may be several serious complex personal problems and where the offender may otherwise resist the assistance offered (paragraph 8); and

c) to ensure that at all times the probation officer/agent agent seeks to be on the alert for serious situations which may affect the offender or extreme actions that the offender may commit, such as suicide (paragraph 10).

[123]         Under the Loi sur les services correctionnels, LRQ, c S-4.01 (LSC), s. 12(d), a Probation Officer must “supervise the offender while he is on conditional or supervised probation, ensure that he respects the conditions imposed upon him and, when necessary, report to the Court” (this Court’s emphasis).

[124]         To become a provincial probation officer/agent, one must have a bachelor's degree in one of the following specialties, amongst others: criminology, psychology, social work.[56]

[125]         The defence has filed a document entitled "Politique en Matière d'Information, Aide et Conseil", dated November 1985 and published by the "Direction de la probation". In its introduction, it sets out a new orientation for the probation services.  Their work is to promote: the positive evolution of the offender in preference to simple punishment; the individualization of measures taken in regard to the specific offender and the belief that the offender has the capacity for change.[57]  This philosophy is based on the mutual responsibility that the offender and society have to resolve the conflict that is constituted by his offense. The document notes: "En introduisant de façon formelle la notion de la responsabilité mutuelle, la Direction de la probation élargi son champ d'action. Sa conviction est que cette orientation favorisera l'enrichissement de la fonction d'agent de probation et entrainera un meilleur impact des divers programmes qu'elle met à la disposition de la Justice."[58]

[126]         From this, the Court understands that the probation officer/agent must exercise a more pro-active and individualized role with each specific offender.  A critical component of this relationship is the mutuality of responsibility of the offender and of the probation officer/agent (representing the interests of the greater Québec society).

(ii)     WHETHER THIS OBLIGATION TO SUPERVISE HAS BEEN BREACHED

 

[127]         According to the report submitted by the defence expert witness, Mr. Denis Lévesque,[59] the Probation Officer intervened appropriately, to a degree congruent with the risk and the needs of the offender.^[60] However, the report does not address several important factors in the present case, which are described in more detail below.

[128]         For the reasons set out in this section, the Court finds that the Probation Officer and certain of her colleagues in the probation service breached their duties to supervise and to satisfy the appropriate standard of a reasonable probation officer/agent in the circumstances^[61].  For the reasons that follow, the Court finds that their acts and omissions were unreasonable.

[129]         The obligation to supervise necessarily includes an obligation to take reasonable steps to become informed about the offender’s compliance with the terms of their probation order.

[130]         Supervision is one of the most critical roles of the probation officer/agent. By keeping in regular contact with the probationer, the probation officer/agent can ensure that the probationer is respecting the conditions of the probation order and at the same time, can make timely interventions to avoid the probationer being in breach. At the same time, the probation officer/agent is not "just a record keeper" but has the proactive role to provide information and counselling to ensure that the probationer continues to respect the probation order and works toward a successful re-integration into civil society. According to the Internal Policy, the probation officer/agent must collect any necessary information to support statements of fact in case the offender is required to appear in court.[62]

[131]         In the present case, it is important to understand the knowledge base of the Probation Officer. Based on this evolving knowledge base, the Probation Officer was required to adjust the nature and degree of her supervision. Evidence was adduced that the probation service prepares an individualized intervention plan for each probationer. Curiously, neither party put into evidence the plan prepared specifically for the offender.

[132]         From the offender's file, the Probation Officer, in the minimum, knew or should have known the following:

a.  in the original pre-sentence report of the psychiatrist, it was noted that the offender had a dependent personality with certain antisocial traits;

b.  criminal behaviour by the offender only seemed to occur as a result of conjugal breakups;

c.   that his antisocial tendencies involved both suicide threats as well as aggressive behaviour to the former spouse;

d.  in the case of the offender's first relationship, an order under article 810 CCC was required; in the second relationship, such an order was not obtained and the offender committed a break-in and also committed an assault, although not causing injury to Ms. Lanteigne and it was for this criminal behaviour that he was convicted;

e.  moreover, the offender’s file noted that he also threatened the children of the first spouse.  As well, the Court believes Ms. Lanteigne when she testified that she had told another probation officer/agent that the offender had threatened her nine-year-old son, and that she had been required to advise the school authorities as a means of protecting  her son;

f.    Ms. Lanteigne had also told another probation officer/agent that she came back to her apartment - after leaving it in the care and control of the offender - to find her picture on the coffee table with a long gun beside it.  She was so afraid that she threw the long gun into the snow and was subsequently advised by the police that the offender did not have the legal authority to possess this weapon.

[133]         The Court underscores that the Probation Officer was successful the first time that she supervised the probation.  It was for this reason that the offender was transferred out of her supervision and into the less strict "technical supervision" which nonetheless required that he report for a meeting once per week. The Court will now analyze the evidence concerning supervision in chronological order.

[134]         For the purposes of this section, the Court has reviewed the notes included by the Probation Officer in the offender’s file.  In the course of the following analysis, the Court will also analyze various opinions expressed by the defence expert, Mr. Lévesque.

[135]         In the period from October to December 2003, expert Lévesque opines that the relationship between the offender and the Mother was re-established and that the offender "was taking himself in hand" (this Court's translation).

[136]         The Court disagrees with this characterization based upon the notes in the offender’s file[63] kept by the Probation Officer.  In this period of time, there were two supervision meetings, one October 7 and the other on November 12, 2003 between the Probation Officer and the offender.

[137]         In the October 7, 2003 supervision meeting, the Probation Officer notes that the risk of suicide was still present.  In fact, the offender says that he will commit suicide if the Mother abandons him. The Probation Officer notes that she advised the offender that she sees this as a dangerous situation. In fact, the Probation Officer tells him that she fears that he is a “pressure cooker waiting to explode”. She notes that the offender has no comprehension of this whatsoever and pessimistically, the Probation Officer notes that "on n’avance en rien".[64] This meeting should have underscored the fragility of the offender's mental state when he feels abandoned by his "significant other".

The next meeting is on November 12, 2003.  The offender admits to the Probation Officer that he consumed drugs and went to bars - knowingly in contravention of the court order - throughout the period of his suspended sentence.  This "admission against interest" should have been a “red flag” for the Probation Officer.  It meant that the offender was lying and concealing facts from the probation authorities throughout the period of the suspended sentence. The Probation Officer should now have been very alert to the fact that the offender was manipulative and potentially deceptive in what he disclosed to her. In this meeting, the Probation Officer tells the offender that she cannot understand how the Mother would wish to continue their relationship in the circumstances.

[138]         It must be remembered that the Probation Officer had put in the offender’s file notes in August of 2002 - when the Probation Officer met with the offender and the Mother for the first time - that two of the Mother's statements that the Probation Officer found the most impressive were that the Mother had zero tolerance for drugs and zero tolerance for conjugal violence. 

[139]         At this November 12, 2003 meeting, the offender tells the Probation Officer that the Mother is the center of his universe!  Based on what the Probation Officer knew of the Mother, this statement should have made the Probation Officer realise that the offender was not being transparent with the Mother either concerning his drug and alcohol use.

[140]         Based on all that she knew, the Probation Officer should have realized that she could not rely on the offender to tell her the truth and that she needed to do further checking, particularly with the Mother. Importantly, the register next notes that the Probation Officer sought to speak with the Mother only on April 7, 2004, some 5 1/2 months later.

[141]         However, this is not all.  There was further confirmation that the offender could not be relied upon to tell her the truth. For example, in a telephone conversation on September 16, 2003, the offender told the Probation Officer one story about the suicide and when the Probation Officer subsequently spoke to the Mother, the story was totally different. The Mother told the Probation Officer on September 16, 2003 that the offender was abusing cocaine, had made death threats against her and told her that she was lucky to have a son because it was because of the son that she was still alive. This statement by the Mother put the Probation Officer on notice that the threat of violence to the Mother was also tied in with the Son, in the offender's mind.  Furthermore, the Mother advised the Probation Officer that he had called her on 15 September, 2003 saying that he was threatening to commit suicide. The Mother drove with him to the hospital and 12 hours later, he was discharged after speaking with several doctors.

[142]         Then during the October 7, 2003 interview between the Probation Officer and the offender, the offender’s file indicates that the offender admitted to her that he would not tell her everything, because he was afraid of "sinking himself" (this Court’s translation).

[143]         Given this context of inconsistencies and contradictions, the reasonable conclusion for the Probation Officer to reach is that she could not rely on what the offender told without her getting her own corroboration for important facts. Given the Probation Officer's own notes, the Court does not need any expert report to come to this conclusion. It is evident from what the Probation Officer herself wrote.

[144]         Accordingly, the Court does not agree with Mr. Lévesque, who opines that between October and December 2003, matters were re-establishing themselves between the Mother and the offender and the offender was "taking himself in hand".

[145]         In fact, the offender’s file notes an exchange of messages in December 2003 which show a deteriorating situation and yet, there is ultimately no supervision meeting fixed.  The last note in the record in December 2003 is a message left by the offender that he was moving back in with the Mother and that he will call back the Probation Officer.

[146]         In fact, he does not do so, and the offender’s file then notes - at an unspecified date in January 2004 - that he called the Probation Officer and told her that everything was going well and that he was definitively moved back with the Mother. A new supervision meeting was fixed for February 11, 2004.

[147]         Hence, from the situation in October 2003 where the Probation Officer knew or should have known that she was being given the “run-around” by the offender, she has no supervision meeting with the offender for two (2) whole months - December and January - and the next meeting, in fact, only occurs on February 11, 2004.

[148]         In the February 11, 2004 supervision meeting, the offender asserts that he never had any problems before his association with Ms. Lanteigne.  This is of course completely false and the Probation Officer knew this because the offender’s file had noted that he had threatened Ms. Brochu and her children, and that a article 810 CCC restraining order was obtained to protect Ms. Brochu and her children.  He then goes on to say that he does not know how the Mother could feel threatened by him.  The Probation Officer’s notes in the offender’s file indicate that she told him that he needed to reflect on his jealousy and what caused him to lose his temper. The next meeting was set for March 10, 2004.

[149]         On March 10, 2004 the offender fails to show up for the meeting with the Probation Officer. On March 11, he telephones her to tell her that everything is going well and that he had overslept.  Instead of setting a new meeting for March 2004 in fact, the next meeting is now set for April 14, 2004.

[150]         The defence expert Mr. Lévesque characterizes the behaviour of the offender between January and July 2004 as "plutôt erratique".  In fact, by an objective measure, the notes of the Probation Officer demonstrate that there is an escalation of unexplained and bizarre behaviour by the offender without there being any more stringent supervision or attempts by the Probation Officer to determine what was really going on.

[151]         In the April 14, 2004 supervision meeting, the Probation Officer starts off her notes with the phrase "attitude bizarre".  In fact, upon entering the Probation Officer’s office, the offender starts to flirt with the receptionist.  He then goes on to explain to the Probation Officer his sexual relationship with the Mother in a crude fashion, and when she says to the offender that she is worried, he tells her that he has no reproaches to make of the Mother and that he is not angry with her.  The Probation Officer warns him that the Probation Officer "has her eye on him.”

[152]         However, despite this promise of closer supervision by the Probation Officer, she does not seek to contact the Mother. In fact, the Court knows from the Mother's evidence at trial that the situation at home was seriously deteriorating to the point that she was throwing the offender out of her house.

[153]         Again, despite this troubling behaviour at the April supervision meeting, the Probation Officer simply sets another meeting forward for 12 May, and there is no note in the file that she did anything in the meantime.

[154]         On May 12, 2004 the situation at that supervision meeting, again, has an unusual twist.  This time, the offender comes up with the explanation that his medications had been changed and this is what was causing his unusual behaviour at the April meeting.  The offender tells the Probation Officer that now there is nothing to worry about.  The Probation Officer’s notes indicate that the offender told her that the Mother remained at the center of his world, that the Mother changed her shifts so they could spend more time together and that everything was going wonderfully well between them.  At the same time, he made flirtatious comments about the Probation Officer’s receptionist. The Court notes that this last comment was completely out of character with the professions of love that he was making with regard to the Mother.

[155]         This experienced Probation Officer seems not to have made anything more of these inconsistencies and strange behaviour.  She simply sets a next meeting for June 9, 2004.

[156]         On that date, a person identifying themselves as the dispatcher from the offender's workplace calls the Probation Officer to say that the offender is working too late and that he will not be able to attend the meeting.  The note in the offender’s file is cryptic.  There is no indication that the Probation Officer called the employer back or even knew who the employer was to confirm that, in fact, this dispatcher was who they claimed to be. Moreover, as the Probation Officer had no record of who the employer was, she was not in a position to do this.

[157]         Essentially, the Probation Officer was accepting what she was told without any critical mind or without in any way being pro-active to corroborate critical elements of what she was being told. The Court cannot find in the offender’s file any other occasion where the offender had a third-party call on his behalf to indicate he could not be present at a supervision meeting.

[158]         Instead of fixing a meeting for the next week, the next meeting is set for July 6, 2004, over a phone call on June 15, 2004. The offender tells the Probation Officer that everything is going well. Accordingly, this means that the Probation Officer will not have seen the offender for almost two months by the time the next meeting occurs on July 6, 2004.

[159]         On that date, she will be shocked to learn a variety of things, which she had not been able to learn in the preceding two months.

[160]         Mr. Lévesque qualifies this July 6, 2004 supervision meeting as one where the situation was "plutôt détériorée".  Such a qualification is an understatement as is proven by the following facts drawn from the notes of the offender’s file.

[161]         In the July 6, 2014 supervision meeting, the file notations of the Probation Officer prove that the Probation Officer found out the following information from the offender:

a) the Mother had left him two (2) months before and he had moved out of her residence.  In fact, the Mother testified that the offender had moved out of her house on May 11, 2004.  This was one day before the May 12, 2004 meeting between the Probation Officer and the offender, a meeting in which the offender told the Probation Officer that the Mother was the center of his universe and how good their relationship was.  Had the Probation Officer checked her own notes in the file, she would have been able to confirm to herself that two (2) months had passed since the couple had broken up , and since she had not had a meeting with the offender in June 2014, the offender had kept this information from her;

b) the offender had lost 40 pounds, but was neither drinking nor taking drugs.  Mr. Lévesque volunteers that this may have been caused by "un laisser-aller global, à un problème de santé, à une dépression ou à une consommation abusive de cocaïne".  In fact, the Probation Officer does nothing to determine what the cause might have been, although given the previous history of cocaine use by the offender, and the fact that his life was now upside down because of the end of his relationship, this conclusion might have been the most reasonable.  Her notes mention nothing of this;

c) the offender does not want to consult with anyone because "each time he does, he either winds up in prison or hospital (according to him), and this does nothing for him".[65] This refusal by the offender to accept help stands in stark contrast to his willingness to embrace help when this had been suggested to him on earlier occasions, notably after his threatened suicide in September 2003. This refusal to seek help - and the reason provided - should have caused the Probation Officer to recognize that there was a problem.  However, the next comment in the notes is the most critical;

d) the Probation Officer notes that the offender tells her he was waiting for a telephone call to "actualiser son projet".  He does not want to tell her what his “projet” is, but she deduces that it is a veiled threat against the Mother.  He also says that he knows very well, where and how he was going to commit suicide, but he is not sure when;

e) The Probation Officer then warns him that if he threatens the Mother, the Probation Officer would stop him immediately.  If he continues to advise her of his recurring suicidal ideas, she would refer him to a psychiatrist.  He replies that he would refuse all references to outside help.  She says that his threats are not the proper way to get sympathy and affection.  He replies that nothing was working and that he found himself back where he was several months ago when the Mother had first left him.  The Probation Officer then undertakes the following critical follow-up to the offender: she advises him that she must meet with him every week and that she would be thinking of what measures she would take.  She seeks to set up a meeting for July 14 at 8:30 P.M. in the evening and he responds to her, "une semaine c'est trop long pour planifier". 

[162]         Therefore, at the end of this critical meeting where the Probation Officer knows that the offender is in a state of disorganization and where the possibility of something serious happening is a real one in light of past experience, the meeting ends without any specific date being determined for a follow-up supervision meeting… despite her own advice to the offender that WEEKLY meetings were required.

[163]         Despite this critical assessment made by the Probation Officer as to the need for timely, regular interventions, she did not follow up. The Court finds this to be a critical omission by her.

[164]         On the other hand, there are other indications of some follow-up and confirmation that the Probation Officer does take this meeting very seriously:  her note in the file indicates that she will advise the City police as well as the Mother.

[165]         The next day, July 7, 2004, the Probation Officer telephoned the Mother and received a call back.  In that teleconference, the Mother advised the Probation Officer that she had terminated the relationship with the offender because he was back to consuming cocaine and because he owed a great deal of money.  The Mother also indicates that she was receiving indirect threats from the offender by way of third parties who did not wish to testify because they were afraid of the offender.  The Mother indicates that she is afraid of what the offender may do to the point that she is sleeping with a can of pepper spray at hand as well as a baseball bat to protect herself should the offender break into her home while she is sleeping.

[166]         Over the following two (2) days, July 8 and 9th, the offender leaves the probation agent 5 messages in one of which, the call back number is for the Bar.

[167]         On July 12, 2004, the Mother calls the Probation Officer to advise that she has told the offender that she has spoken to the Probation Officer.  The Mother advises the Probation Officer that the offender has "emptied her bank account", and that she has filed a complaint with the police.  Again, the Mother makes reference to indirect threats she has received from the offender on several occasions.  She says that she will call the police "if required".

[168]          The following important information is then given by the Mother to the Probation Officer: she advises that the offender has lost his job because his boss is afraid of him.

[169]         Two days later on July 14, the offender calls the Probation Officer and wants to know why the Probation Officer had called the Mother.  The notes in the offender’s file by the Probation Officer state that the Probation Officer has a discussion with the offender about his behaviour and the Probation Officer’s "inquiétudes".  The Court is perplexed that the Probation Officer does not make any notation of the address nor name of the presumed "new" employer, since she was informed, only 2 days previously, by the Mother that the offender had lost his job.  Since having employment is a condition of the probation order, this omission is an important one.

[170]         In the probation file on a date that is not indicated, but which is between July 20 and July 21, 2004 the Probation Officer notes a call to the Mother, without indicating the subject matter.  The Probation Officer then notes the Probation Officer's call to a City policeman, a Mr. Kessler, who indicates to the Probation Officer that the Mother can make a complaint, even for an indirect threat.  The Probation Officer then calls the Mother and the Mother now indicates should she will go to the police.

[171]         On July 21st and 23rd, 2014 the Probation Officer and the offender exchange calls for the purpose of setting up a next supervision meeting.  The file then notes only that the Probation Officer leaves a message for the offender on July 26 and on July 28 and on both occasions, the Probation Officer notes that the telephone line is no longer any good.

[172]         Accordingly, on July 28, 2004, in circumstances where the Probation Officer knows that the situation is deteriorating badly, she loses complete contact with the offender.  Had she kept proper track of the offender's place of employment, she could have used that as a means to contact him.  Instead, she writes him a letter dated July 30, 2004, which is annexed to this judgment as Annex A.

[173]         The Probation Officer testifies that she sent this letter because she was going on vacation.  The letter does not indicate this, but rather requires that the offender present himself for a next meeting on August 12, 2004 at 11 AM at the probation office in Ste-Therese.  The letter is clear: if the offender does not attend at that meeting, then the Probation Officer will have no alternative, without any further notice, but to demand "that criminal prosecution be taken against the offender as required by the criminal code”.  The specific phone number is given to the offender to call in case he cannot attend the meeting for any reason.

[174]         The Probation Officer testifies that she explains this whole situation to her supervisor, Mr. XY.

[175]         The Probation Officer then leaves for one month's vacation, which she is spending at her nearby residence.

[176]         This is the last communication she will seek to have with the offender before he kills himself in the incident of Friday, August 27, 2004.

[177]         What does the offender’s file then show concerning that all important meeting of August 12, 2004?   There is nothing indicated at all. The Court is perplexed.

[178]         In fact, the probation service did nothing when the offender did not show up for the meeting.

[179]         It did not:

a.  seek to contact the offender and determine whether there was any valid excuse for his not attending the meeting;

b.  advise the Crown Attorney's office, in view of such a "significant breach", and contrary to the Probation Officer’s July 30, 2004 letter; nor

c.   seek to warn the Mother that anything was amiss.

[180]         The appropriate witness to have explained these omissions would have been Mr. XY, the supervisor to whom the Probation Officer had reported, and to whom a status report had been given before she went on her one-month vacation.

[181]         Mr. XY was in fact on the defence witness list in the parties' Joint Declaration.  The Court was advised that he was retired.  But other than that, no explanation was given as to why he was not called as a witness.

[182]         In fact, the next reference to the offender does not come from anything done by the probation service, rather by results from a call received on August 20, 2004 by the duty probation officer/agent at 10:49 PM.  The duty probation officer/agent notes the following [the Court's English translation] in the records: the offender says he only received the July 30, 2004 letter on August 19, 2004 i.e., 20 days after it was sent.  The offender indicates that he was a trucker who was working a great deal, and that this is what made it difficult for him to attend his supervision meeting with a probation officer/agent at this time. 

[183]         Be that as it may, the duty probation officer/agent recognizes the importance of a supervision meeting because she seeks to determine when the offender could present himself for a supervision meeting with the duty probation officer/agent, but he indicates he has no availability in the week.  However, he did undertake that he would contact the Probation Officer 13 days later on September 2, 2004, when she returned from her vacation.  He also indicates that “the situation was stable” (the Court's English translation).

[184]         This notation, without any further explanation, either by Mr. XY, or in particular, the duty probation officer/agent (who likewise was not called as a witness by the defence), leaves the Court perplexed.  In this situation, which even defence expert Lévesque described as deteriorating, why was no attempt made to closely supervise the offender? In fact, it is he that "calls the shot", both with regard to arranging a next meeting and with regards to his unchallenged statement that his work prevented him from attending an earlier critical supervision meeting.

[185]         Ms. Louise Bastien, Mr. XY's supervisor, is called as a witness for the defence.  She has very little direct knowledge of this situation except having reviewed a report prepared by Mr. XY on August 31, 2004, 4 days after the incident.  Ms. Bastien is also retired at the time she gives her testimony.  She could add nothing further to the brief report of Mr. XY (of which more will be said shortly), which she had reviewed.

[186]         She confirms that the Policy regarding conjugal violence required information be provided by the probation services to the former spouse (against whom the conjugal violence had been committed that lead to the criminal conviction). However, there was no such policy requiring disclosure to any subsequent spouse with whom the probationer might be having a relationship of some permanence, while on probation.

[187]         The Court will now analyze more fully whether the duty to supervise has been breached.  In particular, the Court will review the evidence of the defence expert Mr. Lévesque on the nature and level of supervision required in this case.

[188]         Starting in April 2004, when the offender started to adopt an unusual pattern of behaviour - particularly regarding matters of a sexual nature - Mr. Lévesque concludes that the Probation Officer had several indications that the offender was falling back into a cycle of "infraction" i.e. breakup of his relationship, social disorganization, irrational thoughts, indications of drug consumption, and possible threats of violence.[66] 

[189]         Mr. Lévesque opines that the Probation Officer needs to gauge the level and intensity of intervention based upon the risk at the time.

[190]         He concludes that the nature of the interventions by the Probation Officer were congruent with the risk.

[191]         In particular, he notes that in July 2004 when the greater disorganization of the offender increases the risk, the Probation Officer increased the intensity of her interventions and the frequency of her contacts with the offender.

[192]         With respect, this opinion is not supported by the evidence adduced before the Court. Furthermore, if this were the standard for probation officers/agents, it would not bind the Court. The Court refers to the well-known statement of law of Madam Justice Claire L'Heureux-Dubé in Roberge v. Bolduc[67]:

       "Il ressort de cette brève revue de la doctrine et de la jurisprudence que les tribunaux ont le pouvoir discrétionnaire d'apprécier la responsabilité, malgré l'existence d'une preuve non contredite quant à la pratique professionnelle courante à l'époque en question.  La norme doit toujours être, compte tenu des faits particuliers de chaque espèce, celle du professionnel raisonnable placé dans les mêmes circonstances.

 

     Il se peut fort bien que la pratique professionnelle soit le reflet d'une conduite prudente et diligente.  On peut, en effet, espérer qu'une pratique qui s'est développée parmi les professionnels relativement à un acte professionnel donné témoigne d'une façon d'agir prudente.  Le fait qu'un professionnel ait suivi la pratique de ses pairs peut constituer une forte preuve d'une conduite raisonnable et diligente, mais ce n'est pas déterminant. Si cette pratique n'est pas conforme aux normes générales de responsabilité, savoir qu'on doit agir de façon raisonnable, le professionnel qui y adhère peut alors, suivant les faits de l'espèce, engager sa responsabilité."

 

[193]         To the extent that the analysis conducted by Mr. Lévesque is put forward by the defence as confirming the standard of care for the Quebec probation services, the Court cannot agree that this norm is prudent and diligent.  The Court underscores that the Probation Officer and the Quebec probation service knew that the offender was capable of extreme conjugal violence.  In the case of his previous spouse, he was convicted in circumstances where he entered her office premises at 5:30 AM, put a knife to her neck, and dragged her by the hair out of those office premises.  The fact that this offender was capable of this level of violence and the fact that his level of social disorganization was deteriorating in a pattern similar to that when he committed previous conjugal violence, were clear warnings that should have caused the Probation Officer and the probation service to implement a much stricter and vigilant supervision, something that they failed to do.

[194]         The Court determines that the Probation Officer and the probation service breached their duty to supervise the offender in the following ways.

[195]         Firstly there was the disturbing meeting between the Probation Officer and the offender on July 6, 2014. This constituted an alarm regarding the degree of disorganization of the offender. Despite this, there was no increased supervision until the Probation Officer lost contact with the offender on July 28, 2014, the date when her only telephone number for the offender was no longer in service.

[196]         Secondly, prior to going on her vacation, the Probation Officer sent the stern letter of July 30, 2014 setting up the mandatory supervision meeting.  Since that letter was not sent by registered mail with a pink card requiring a signature on receipt [or service by bailiff], the probation service had no documented proof of when it was received by the offender.

[197]         Thirdly, the probation service did no follow-up to find the offender after the departure of the Probation Officer on vacation from August 1, 2014 onward. Accordingly, there were no supervision meetings, no phone calls, nor any contact between the probation service and the offender until the offender himself called the duty officer on August 20, 2004 at 10:49 PM.  The late hour of this phone call should have alerted the probation service that something was not right.

[198]         Fourthly, the Probation Officer testified that on the day before her departure for vacation, she informed her supervisor, Mr. XY about the status of the offender’s file.  No one in particular was appointed to actively monitor the file during her absence.  There is no evidence that anyone was left responsible to ensure the offender’s compliance with the mandatory terms of the July 30 letter or, should he fail to comply, to execute the notice to the Crown regarding breach of probation.

[199]         In these circumstances, the resulting critical lack of supervision of the offender in the month of August, 2004 is not surprising.

[200]         When the offender did not attend the meeting on August 12, 2014 and the probation service had, at this time, no excuse as to why he was not there, there was no follow-up with the Crown Attorney's office as the July 30^th letter required.  Hence the threat in the letter of the institution of court proceedings would be perceived as a hollow one by the offender.

[201]         When the offender did call the duty probation officer/agent on August 20, 2014, everything that the offender said by way of explanation was accepted by the duty probation officer/agent, without any verification.  In the circumstances, it is inconceivable why clear instructions were not given to the duty probation officer/agent to get even the minimum information from the offender, including his new telephone number, confirmation of his new address, an explanation as to why he only received a letter on July 19, after it had been sent 20 days previously, and the name and telephone number of his new employer.

[202]         There is no evidence that the duty probation officer/agent contacted Mr. XY regarding this telephone call.

[203]         Furthermore, there is no evidence that Mr. XY made any inquiries on the status of the offender’s file with the duty probation officer/agent.

[204]         The Court emphasizes that the duty probation officer/agent’s notes concerning this August 20 telephone call make no reference to the content of the offender’s file or to the strict terms of the July 30 letter. 

[205]          The Defendant’s expert Mr. Lévesque told this Court that a failure to appear at a meeting is frequently used to prove a violation of probation conditions in situations where other breaches cannot be documented by facts directly observed by a probation officer/agent or by the police.^[68] However, he noted that, in this case, the duty probation officer/agent was convinced by the offender’s explanation and by his statement that he was currently stable.^[69]

[206]          Nevertheless, this Court observes that there is no evidence that the duty probation officer/agent was aware of the history of the offender’s file, and particularly, the Probation Officer’s grave concerns about the offender's stability, or of the context of the offender’s phone call on August 20.

[207]         Had the duty probation officer/agent known about the Probation Officer’s documented view of the file before the Probation Officer left for her vacation, the duty probation officer/agent would likely not have been so easily convinced of the offender’s stability. Moreover, Mr. XY, the only on-duty probation service official aware of the circumstances surrounding the offender’s file, was not consulted as to his view of the next steps for the intervention plan for the offender as the situation with the offender deteriorated.

[208]         In light of this analysis, it is not proven to this Court that the duty probation officer/agent on August 20 understood what was at stake in accepting - without further questioning - the offender’s assurances and in omitting to take further action.

[209]         The late-evening August 20 telephone call was the last communication between the offender and any probation services officer before the tragic events unfolded on the night of August 27, 2004.

[210]         Soon after those events transpired, Mr. XY’s own supervisor, Ms. Louise Bastien, contacted Mr. XY requesting information about the offender’s file.  His brief report was noted in the file[70].

[211]         Mr. XY’s response offered little detail.^[71] In his short note, he records merely his knowledge that the offender “était désorganisé depuis quelques mois” and repeats three times in a formulaic manner that the Probation Officer “a fait toutes les démarches” to help both the offender and the victim.

[212]          He states that the events of August 27 were totally unforeseeable.

[213]         He makes no mention of the fact that, according to the terms of the July 30 letter, there was sufficient evidence as of at least August 12 to advise the Crown of a breach of probation and that the Probation Officer had expressly contemplated doing so in her July 30^th letter. There is also no mention by Mr. XY of the fact that, as indicated in the Probation Officer's notes, the probation authorities had clear reasons to be concerned about the offender’s deteriorating condition as of at least July 6, 2004.

[214]         Without any testimony from Mr. XY to explain his brief report further, the Court determines that his report is self-serving and of little probative value.

[215]         Ms. Bastien testifies at trial and not Mr. XY. There is no evidence that Ms. Bastien knew anything more about this file than the brief report of Mr. XY.

[216]         Yet, with so little information to make her own assessment, Ms. Bastien testified she was satisfied with the XY report and undertook no further investigation herself.

[217]                 Based on all the above, the Court finds that by failing to ensure that the offender’s file was supervised while the Probation Officer was on vacation, pursuant to the terms of the July 30^th letter, the Probation Officer, her supervisor Mr. XY  and the duty probation officer/agent, all breached the duty to supervise  the offender.

[218]         The Plaintiffs' have made out a prima facie case that supervision was lacking generally throughout the month of August 2004. Accordingly, the Court is entitled to draw the inference that if Mr. XY and the duty probation officer/agent had been called as witnesses, their evidence would not have helped the defence case or would at least not support it.[72]

[219]         The Probation Officer testified that, prior to going on vacation, she was very concerned about what the offender might do to the Mother, particularly in light of his past history of extreme domestic violence.

[220]         The Plaintiffs’ expert Roch Tremblay opined that the events since July 2004 should have shown the Probation Officer that the social reinsertion process was no longer working.[73]

[221]         In the context of the specific facts of this case, it is clear that there was a distinct relationship that gave rise to a duty of care owed by the probation service to the Mother, in particular, because the Probation Officer testified that the Mother’s relationship with the offender was an important element in the plan for social re-integration of the offender:  one of the objectives of the probation order. This duty has been breached for the above noted reasons.

[222]         If - as the circumstances of this case indicate -the offender’s file was effectively held in abeyance during the Probation Officer’s month long vacation, the systemic issue presented for the Ministry is that there needs to be in place a system of coverage whereby the entitlement of a Probation Officer to go on vacation does not create undue risks for the public since the proper level of supervision for a particular probationer is not undertaken in her absence.  In the present case, the increased supervision that the defence’s own expert, Mr. Lévesque confirms is required because of the increased risk, was absent.  This is not solely the fault of the Probation Officer, but rather a systemic fault that needed to be addressed by the probation service.

[223]         Later in this judgment under the heading "Causation", the Court will analyze whether the breaches of the duty to supervise had any direct and immediate effect in causing the damages alleged.

Duty #3: Obligation to report to Court any breaches of judgments imposing a suspended sentence or probation

 

[224]         The Politique concernant l’application de l’ordonnance de probation (“Internal Policy”)  states that the s. 12(d) duty of supervision includes a duty to keep detailed records of supervision and interventions, and to provide an offender with information and advice.  For present purposes, the probation officer/agent has the duty to intervene and report to  the Crown prosecutor  in certain circumstances  (1) if a new accusation is brought against the offender or (2) when the probation order was “significantly breached” (as noted in the Internal Policy and in accordance with art. 733.1 of Criminal Code),

[225]         What is relevant to the present case is the second circumstance.  Firstly, it requires an exercise of professional discretion by the probation officer/agent to determine whether there has been a "significant breach" of the probation order[74]. To make this determination, the Internal Policy requires that the Probation Officer weigh  the following factors:

a.    the presence of a new criminal accusation;

b.    the gravity of the breach;

c.    the probability of a new offense occurring;

d.    the repetitive nature of the breach;

e.    the circumstantial or premeditated character of the breach; and

f.      the way in which the offender will interpret the probation agent’s actions and whether or not this will have an impact on his social reintegration.

[226]         The Internal Policy makes clear that when the Probation Officer contacts the Crown prosecutor to inform the latter of a "significant breach", this necessarily means that the Probation Officer is recommending a prosecution taken under article 740, Criminal Code of Canada ("CCC").  Accordingly, the probation officer/agent must be satisfied that the offender, at the moment of the presumed infraction, had the physical capacity to respect the probation order i.e. they were not sick or in detention etc.

DISTINCTION BETWEEN SUSPENDED SENTENCE AND PROBATION

 

[227]         This distinction is important, since for the initial sentence, the offender was under a suspended sentence and then for a second period of time, the offender was on probation.  The level of evidence required to prove breach is different for each instance. 

[228]           In the case of a breach of a suspended sentence, the Crown has the civil burden of proving that the accused person committed the alleged breach.

[229]         However, in case of an allegation of a breach of probation under article 740 CCC, the Crown has the criminal burden of proof beyond a reasonable doubt to show that the mens rea and actus reus for the material elements of the offence of breach of probation have been committed.

WHETHER THIS OBLIGATION HAS BEEN BREACHED

 

(a) DURING PERIOD OF SUSPENDED SENTENCE

 

[230]         The offender’s probation file provides very clear evidence on September 15, 16th and 17th 2003 of information that was disclosed (a) to the St-Eustache Hospital[75] where he was taken following the threatened suicide and thereafter, (b) to the probation service either by the Mother or the Probation/Officer, which could have constituted potential breaches of the Court of Quebec's suspended sentence.

[231]         On September 15, 2003, the offender was admitted to the St-Eustache Hospital.  The Court understands that the probation service did have access to these hospital records.  Those records note that the offender admitted to the physicians that he had been consuming cocaine, which had lead him to lose weight.  In fact, the medical records noted that he had been consuming cocaine over the past 3 weeks and that he had lost 10 pounds.  On the other hand, the offender indicated to the doctors that he wished to quit his use of cocaine and to reform.  He pleaded for their help to quit.

[232]         The Mother confirmed to the Probation Officer in a telephone call of the following day, September 16, 2003 that the offender had in fact been using cocaine.

[233]         This use of cocaine would certainly have been a breach of the order concerning the suspended sentence as well as a breach of keeping the peace.

[234]         The Probation Officer indicated that she discussed bringing such a prosecution with the Crown attorney and in the end, had been told by the Crown that because of the indirect nature of the evidence, the Crown would not prosecute.

[235]         She also indicated that she herself did not feel it appropriate to prosecute, since there was only three (3) weeks left in the suspended sentence.

[236]         The Court finds that in the circumstances, this was a reasonable exercise of the Probation Officer’s professional discretion.  However, what the Probation Officer should have retained from this experience was that either the offender was prepared to undertake antisocial behavior despite a court order [i.e., the consumption of cocaine] or that he was prepared to manipulate and lie [since she had told the medical authorities that he had been consuming cocaine so as to get their attention while he had subsequently denied cocaine use to the Probation Officer since he knew this would breach the suspended sentence].

(b)      DURING PERIOD OF PROBATION

 

[237]         However, during the subsequent probation period, the Probation Officer did fail in her duty to report to the Court through the Crown attorney where the circumstances required it under s.12 (d) of the Loi sur les services correctionnels. As noted earlier, the offender had breached his probation order by missing his supervision meeting with the Probation Officer on at least three separate occasions in 2004: May 12, July 14, and August 12. Although the Probation Officer possesses a certain level of discretion in her decision to report a breach to the Crown, the Internal Policy notes that the repetitive nature of a breach is a factor that must be considered.[76]

[238]         The Mother’s allegations of fraud and then harassment (possibly amounting to death threats), and the allegation by the Mother that the offender had been fired from his employment[77], should have alarmed the Probation Officer and caused her to be ready to report, if not on all these potential breaches, then at least on the missed supervision meetings to which she could testify directly.

[239]         One missed meeting may not be a “significant breach” of a probation order. However, the three missed supervision meetings should have been viewed in the context of the offender's escalating antisocial behavior.

[240]         These circumstances - even without evidence beyond a reasonable doubt or formal accusations being brought - created a context:

a)  where there was  the probability of a new offence occurring; and

b)  where if nothing was done, the offender could interpret this as a slackening of supervision and this could impact negatively on his social reintegration.

[241]         In light of all these circumstances, the breach of the probation order (constituted by the missed supervision meeting(s)) should have been reported to the Court shortly after August 12^th 2004 when the offender failed to attend the third supervision meeting.  The fact that the Probation Officer was on vacation at this time was no excuse.  The probation service should have ensured adequate replacement during this absence which could include: a protocol for the substitute probation officer/agent replacing the Probation Officer; being fully briefed on the status of the file and being informed of the next steps in the intervention plan, including the report of any breaches in a timely manner to the Crown prosecutor - in the event of an unexcused absence from the supervision meeting by the offender on Thursday, August 12, 2004.

[242]         The uncontradicted evidence is that if the Crown brings a breach of probation proceeding, all prior breaches are alleged and so the potential criminal prosecution could have involved the three missed supervision meetings, including that of August 12, 2004.

[243]         The Court emphasizes that proper communication, attention and timely responsiveness to a probationer’s file evaluation is crucial in a conjugal violence case such as this and particularly in light of the extent of the documented difficulties arising with the offender. 

[244]         As to whether this breach of the duty to report was a direct and immediate cause of the damages will be discussed under the heading of Causation.

Duty #4: Whether there was a duty for the probation service to inform the mother of the danger she faced from the offender

 

[245]         While the Plaintiffs argued strenuously the existence of such an obligation, they provided few authorities. However, this question has been carefully reviewed in other Canadian Provinces as well as Commonwealth jurisdictions, as the Court will now analyze.

Law in other jurisdictions

 

A) New Zealand

 

(i) COUCH v. ATTORNEY GENERAL[78]

 

[246]         It is very important to note that this Supreme Court of New Zealand case dealt with the issue of a special duty - not in the context of a trial on the merits - but rather concerning an interlocutory motion which had dismissed the plaintiff’s action for lack of a cause of action.

[247]         In appeal, the majority decided that an arguable case could be pleaded that the plaintiff, Ms Couch was the subject of the necessary distinct and special risk of being physically harmed by the wrongdoer, a Mr. Bell, who had caused injury while on probation.

[248]         The Court in Couch decided the following facts:

"   [124]...The defendants (Ed. note: the probation authorities) knew that Bell was classified as posing a high risk of re-offending. [The offence for which he had originally been convicted] was arguably marked by a particularly dangerous and unusual feature in the form of what appears to have been an attempt by Bell to inflict gratuitous and random violence on a person present at the robbery scene. Bell was known to be in constant need of money to feed his alcohol addiction. He was allowed to work at premises in which significant amounts of cash in the form of bar takings were likely to be present. He was able, while engaged on the premises, to find out about the security systems and arrangements which were in force. His ability to do this made [these] premises a predictable target for any further robbery he might be minded to commit. Hence anyone who might be present in the premises at the time of such robbery was at greater risk than members of the public generally and those present were particularly vulnerable because Bell had exhibited a tendency to commit random violence during a robbery. "

(this Court’s emphasis)

 

[249]         Mr. Justice Tipping  on behalf of the majority  ruled at paragraphs 112 and 113:

"   [112]… The probation officer and the Department did not owe Ms Couch any duty of care simply because she was a member of the public. To establish a duty of care Ms Couch must demonstrate that, either as an individual or as a member of an identifiable and sufficiently delineated class, she was or should have been known by the defendants to be the subject of a distinct and special risk of suffering harm of the kind she sustained at the hands of Bell. The necessary risk must be distinct in the sense of being clearly apparent, and special in the sense that the plaintiff's individual circumstances, or her membership in the necessary class rendered her particularly vulnerable to suffering harm of the relevant kind from Bell.

 

     [113] If the necessary special and distinct risk can be established the plaintiff will thereby have demonstrated the proximity criterion for the imposition of a duty of care. It then becomes necessary to examine Policy issues to determine whether they militate against the imposition of a duty, despite proximity having been established. If the necessary special and distinct risk cannot be established, there will be no proximity and therefore no need to examine Policy issues, because without proximity there can be no duty of care. "

(this Court’s emphasis)

 

The Supreme Court of New Zealand granted the appeal and permitted the litigation to proceed.

 

B)  Scotland, a Civil Law Jurisdiction

 

[250]         On the contrary, no “distinct or special risk” was found to exist in the following recent Scottish case and as a result, the claim against prison authorities for releasing the wrongdoer from prison, was dismissed since no duty of care arose.

(i)  ANN THOMSON v. SCOTTISH MINISTERS ^[79]

 

[251]         In this case, a woman was murdered by a man who had had been temporarily released from prison. The victim’s mother sued for damages, alleging that her daughter's death was caused by the negligence of the responsible prison officers who had made the decision to release the wrongdoer. The plaintiff mother also contended that the responsible prison officers had failed to protect her daughter's life in contravention of art. 2 of the European Convention.

[252]         The Scottish Court of Session, Outer House, ruled that something more than foreseeability was required to establish liability against the public authorities.  In this case, there was no sufficiently proximate relationship - i.e. no special risk of harm that was not shared with other members of the public - between the prison officials and the plaintiff to create a duty of care.  The Court quoted extensively from the leading English case of Dorset Yacht (discussed later in this judgment).

C)  Canada: Common Law Probation Cases

 

D.H. v. J.H., 2008 BRITISH COLUMBIA

 

[253]             In D.H. v. J.H.,[80] the British Columbia Court of Appeal, citing the Supreme Court of Canada’s decision in Hill v. Church of Scientology, 2007 SCR 41, held that the test for a reasonable police officer in the circumstances should apply in determining the liability of a probation/officer/agent: “… the appropriate standard is that of the reasonable probation officer in similar circumstances.” The determination must be “tailored to reflect the realities of the case” and is “parallel to the standards applied in other negligence cases and in particular to cases concerning the negligence of professionals.”

[254]             The British Columbia correctional legislation relied upon was similar to Quebec’s Loi sur les services correctionnels.  Like the Québec legislation, the BC Corrections Act also was intended to protect the community and both jurisdictions required the probation service to supervise the individual on probation (the "probationer") and ensure compliance with the probation order.

[255]             Unlike Québec, the B.C. policy directives were more specific: they required that, when a third party was to be given information "to enhance safety", the specific information had to identify the offender by name, and provide his general residential area, criminal history, modus operandi and other information needed to identify why there was a risk.  The British Columbia Court of Appeal notes in its judgment that the policy however "is couched in terms that leaves the degree of disclosed detail in any particular case to the Probation Officer".[81]

[256]             In the D.H. case, the probation officer advised the mother of the assaulted child that the male sexual offender was:

a.           on probation for a sexual offence;

b.           should not have unsupervised contact with persons under the age of 18  years; and

c.           that the parent should not leave her children alone with the sexual offender even for a few minutes.[82]

[257]         In the facts of this case, the sexual offender had become the Mother’s live-in boyfriend.

[258]         The British Columbia Court of Appeal determined that the test for the trial judge was whether the probation officer/agent had made an unreasonable error of judgment in the exercise of the broad discretion the officer was given.  The following passage from that appeal judgment is particularly significant:

"        The Act (Ed. note: B.C. Corrections Act) gives a Probation Officer a broad mandate that may, on occasion, pit long-term and short-term objectives against each other and may lead to genuinely-held but differing views on the wisdom of a particular course of action.  These differences were described by Lord Reid in Dorset Yacht as leaving much room for differences of opinion and errors of judgment (p.301) ".^[83]

[259]         In the D.H. case, the probation officer/agent had advised the mother that the sexual offender should never be left alone with children. The Mother had argued that this was an insufficient warning and that she should have been advised by the probation agent of the specific offences that the sexual offender had committed i.e. sexual assaults on young boys.

[260]         The British Columbia Court of Appeal disagreed with her.

[261]          In the particular context of that case, the British Columbia Court of Appeal found that the particular warning given to the mother -not to leave young children with the sexual offender at any time - was sufficient:  in other words, it was a reasonable exercise of the probation officer/agent's discretionary obligation to provide information.

D.N. v. OAK BAY (DISTRICT) [84]

 

[262]         This next case is an important trial decision from the British Columbia Supreme Court, in which a probation officer/agent was successfully sued in negligence.[85] In this case, the probation officer/agent was found negligent for not warning a hockey association that a convicted sex offender under his supervision was coaching a team of young boys playing under the auspices of their hockey association. Ultimately, the sex offender molested a 13-year-old player (the plaintiff) on his team.

[263]         The defendant probation officer/agent testified that he called the association to tell them about the sex offender’s history, but there was no evidence of that call. The plaintiff's claim was successful. The trial court found the probation officer/agent was in a sufficiently proximate relationship with both the plaintiff and his parents and the officer/agent therefore owed the plaintiff a duty of care. The harm was foreseeable. The breach of duty of care was direct and was the material cause of damages ultimately suffered by the plaintiff. The trial judge concluded:

“[79] I am satisfied on a consideration of all the evidence, the relevant law, and the arguments of both the Plaintiff and the Defendant, that [the Probation Officer] owed a duty of care, not only to the public, but also to individual members of the public. He was a person in a proximate relationship with the Plaintiff (and his parents) and he therefore owed him a duty of care. I conclude this primarily because of the foreseeability of harm. What would the parents of the Plaintiff have considered their relationship to be in these circumstances? There can be no question that parents in this situation would have expected that the Probation Officer would be obliged to provide them with some information. Exactly how much information they should be provided with, and how it should be conveyed to them, is found in the answer to the question: "What is the standard of care”?

(this Court’s emphasis)

 

[264]         The trial court in that case allowed evidence from several members of the hockey association executive.

[265]         They testified concerning what they would have done if they had been properly informed of the wrongdoer’s criminal past.

[266]         It is useful to note the B.C. Supreme Court’s extensive discussion of the duty of care of a probation officer/agent, including its use of the leading English common law cases of Anns v. Merton London Borough Council, [1978] A.C. 728 and Dorset Yacht Co. Ltd. v. Home Office, [1970] A.C. 1004, and in particular, the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R.537 at para. 46 and following.

[267]         The B.C. Supreme Court found that a duty of care was owed by the probation agent both because of the proximity of the relationship - the probation officer's use of the hockey association as an "agent" in the re-insertion of the sex offender back into society - and the foreseeability of harm: the parents would have expected the probation officer/agent to provide some information.

[268]         Hence, a duty was found and whether the duty was breached was to be determined by how much information should have been provided.

[269]         The successful trial outcome for the plaintiffs in this case was not appealed. 

B.M. c. B.C. (ATTORNEY GENERAL) ^[86]

 

[270]         Finally, in a related case, the BC Court of Appeal has ruled that a "special relationship of proximity" was created between an abused woman and the police as a result of the following factors:

a)  it was made known to the police that she was in fear of a violent conjugal abuser;

b)  the existence of a provincial Domestic Violence Policy, which encouraged police investigation in domestic violence complaints; and

c)  the Provincial Court judge gave assurances at the sentencing hearing that the police would respond to the victim's safety needs.

Quebec Civil Law as the governing Law

 

[271]         In the present case, the first two of the above factors are present. In addition, the probation service considered the Mother:

a)  as a "répondant social" i.e. a civilian directly involved in societal reintegration of a convicted criminal and

b)  that the Mother was integral to the objective of the offender’s reintegration - an objective at the heart of the probationary sentence for the offender.

[272]         Art. 1457 CCQ states: "Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law so as not to cause injury to another".

[273]         In the present case, the Court is satisfied that the Probation Officer and probation service had a legal duty, categorized as one of means and not result, to work towards the social reintegration of the offender in concert with the overall aim to protect the public.  For the purposes of the present case, the Court determines that the Mother, and her Son with whom she and the offender lived, were one of the means used to achieve the offender’s reintegration.

[274]         As shown earlier, the legislative context, as informed by various government policy directives, placed the following duties on the probation office/agent and the probation service to achieve the legislative objectives:

a)  the keeping of records to provide an evidential basis for the evaluation of the offender's progress during the probation and for any potential court prosecutions in the face of breaches of probation conditions;

b)  supervision of an offender to ensure respect for probation conditions; and

c)  reporting any breaches of probation conditions to the Crown prosecutor to permit the latter to determine whether any criminal proceedings should be undertaken for these breaches.

[275]         Based on the foregoing analysis and in particular the direction of the Quebec Court of Appeal at paragraph 142 of the Ducharme case, this Court must also determine whether the exercise of professional discretion by the Probation Officer and the probation service were "unreasonable or irrational".  If the Plaintiffs are only able to prove a difference of opinion on specific operational decisions or even if such decisions constitute errors in judgment, neither is sufficient to create legal liability for the defence.

[276]         The Plaintiffs made several references to the recent Court of Appeal case of Ducharme in which their counsel also participated on the plaintiffs' side.  That case has marked differences from this one including the main distinguishing feature that that case turned on the duty to protect owed by the police. 

[277]         In the present case, the defence argues that the probation service had no duty to protect the Plaintiffs and that any duty to protect was the exclusive responsibility of the City police.  The Court agrees.

[278]         The defence expert, Mr. Denis Lévesque confirmed that the Probation Officer intervened directly with the Mother to make the Mother aware of the risks she was facing and to orient her towards the protection afforded by the City police.

[279]         The Court agrees with Mr. Lévesque that the general prohibition against the probation service sharing nominative information about the offender with the Mother did not apply because of the exemption under article 59(4), Loi sur l'accès aux documents des organismes publics et sur la protection des renseignements personnels^[87].  This exception permits the communication of nominative information where there is an urgent situation which puts a person's life or security in danger.  The Court finds that the Probation Officer assumed an obligation to inform the Mother of the reasonable risks of which the Probation Officer was or should have been aware involving the Mother and the offender. Mr. Levesque confirms that the Probation Officer assessed that the offender was creating a real and present danger to the Mother's life and security.

[280]         Such an obligation is entirely consistent with the directives arising under the Québec government's 2002 Politique d'intervention en matière de violence conjugale.

[281]         Such government policies do not have the force of law and are not normative but rather informative.  Nonetheless, such policies can provide a clearer understanding of the exercise of the discretionary power - without determining the precise content of that power.[88]

[282]         As one of its 57 objectives, that Politique includes objectives # 36 and # 37 regarding the requirement for the probation officer/agent to inform victims of the content of a probation order affecting their spouse (or former spouse), and if necessary to keep the victim informed on an ongoing basis with regard to the Probation Officer's intervention with their spouse (or former spouse).

[283]         Specifically, the Politique refers to victims being provided with "all other information which would be relevant to assist the protection of those victims" (this Court's translation).

[284]         The Court must answer the question whether this obligation to inform was met and if it was not met, whether any judicial consequences flow from this failure. In doing this, the Court:

a)  must not expect perfection from the Probation Officer;

b)  must not equate "errors in judgment" with negligence; and

c)  must be careful not to allow the benefit of hindsight to create too high a standard for a Probation Officer who is working in the field.

QUEBEC SEEKS TO COMBAT CONJUGAL VIOLENCE

 

[285]         The  Court highlights the provincial government's commitment to combat conjugal violence by noting the following critical statements from the Introduction to the Politique:

a)  before the 1970’s, conjugal violence was considered part of a family's own personal affairs.  Since that date, there has been a consciousness-raising that the problem is a societal one;

b)  the government commits itself to take measures to combat conjugal violence and to mobilize the population around this common objective;

c)  conjugal violence is exercised, in the main, against women, and so requires a preventive and curative intervention that is tailored to this specificity;

d)  the government underscores that, whether as a professional or in one's personal capacity, everyone must engage in the prevention and systematic uncovering of cases of conjugal violence; and

e)  the four directions that the government has chosen to intervene include: prevention, detection, adapting to particular realities and intervention in psychosocial, judicial and correctional areas.[89]

[286]         As noted above, the Politique d’intervention en matière de violence conjugale aims to protect victims of conjugal violence and requires that correctional intervention consider the needs of these victims. This Policy calls for identification and careful monitoring of conjugal violence cases.[90]

[287]          Specifically in this Policy, the Ministère de la sécurité publique has required that victims of conjugal violence be informed of where and when their partners or former partners are released and on what conditions.[91]

[288]         What can be the purposes of this obligation to inform? The policy is concerned with mitigating the effects of recidivism in conjugal violence situations, and with sensitizing government authorities to the threat to the security of former victims and their families[92].

[289]         Consistent with this Politique, on June 14, 2001 - the probation officer/agent at the time, Julie St-Germain - arranged a meeting with the offender’s former partner and previous victim, Ms. Linda Lanteigne to discuss the offender’s release from detention.[93]

[290]         As noted, the Politique also states that the right to life takes priority over considerations of confidentiality under s. 59(4) of the Loi sur l’accès aux documents des organismes publics et sur la protection des renseignements personels.^[94] Thus, where a risk to life is at stake in the context of conjugal violence, an offender’s confidentiality interests will not prevent the disclosure of information necessary to preserve the safety of another.

[291]         The Court notes that the Politique is also consistent with the Philosophie d’intervention en matière de réinsertion sociale aux Services correctionnels du Québec^[95], which affirms that the best way to ensure the long term protection of society is the social re-insertion of offenders.    This Politique also recognizes that successful reintegration of offenders back into civil society requires: (a) an exchange of information between “concerned partners” and (b) careful risk assessment.

[292]         It is also significant that, according to the Probation Officer’s notes, she in fact relied on the Mother to help her monitor the offender and to facilitate his reintegration. As indicated in her notes of August 29, 2002, the Probation Officer cites several factors as reasons for her confidence that “[l]e risque de récidive est contrôlé”[96] including the offender’s relationship with the Mother; the Mother's knowledge of the offender’s past; and the Mother's willingness to set clear limits on the offender’s behavior.

[293]         This approach is consistent with the Probation Officer’s statement in her testimony that the probation services generally rely on the public’s assistance for the reintegration of offenders into the community.

[294]         As far as the Court understands it, the Politique does not draw a fine line between Ms. Lanteigne, who is the "prior victim" of the original assault for which the offender was convicted and the Mother who became the "present victim" as a result of her contemporaneous breakup(s) with the offender. Any danger posed by the offender in the summer of 2004 did not involve Ms. Lanteigne but rather involved the Mother. Since the Politique has the very clear objective of preventing recidivism of conjugal violence[97], the Court determines that the Politique, by inference, extrapolates the Probation Officer's duty to inform Ms. Lanteigne, to a duty also to inform the Mother in these circumstances, since it is the Mother who is in danger.

[295]         Quebec law imposes no distinct statutory duty on a probation officer/agent to disclose any information concerning an offender to others who happen to have a close personal relationship with that offender. Certainly, an offender’s right to privacy must be weighed in the balance. However, this Court determines that, in the particular circumstances of this case, the existence of a special duty to disclose certain information concerning the offender to the Mother arises from multiple sources.

Was there a breach of any duty to disclose information to the mother

 

[296]         In the Court’s view, the duties set out above, in combination with this reliance on the fact that the Mother would play an active role in the fulfillment of the public mandate of correctional services, created a reasonable expectation in the Mother that she would be provided with as much information as was necessary to ensure her own safety. At the same time, this expectation was encouraged by the Probation Officer in at least two respects:

a)  she required to meet the Mother in  the presence of the offender at the beginning of the couple’s relationship; and

b)  after her ultimate break-up with the offender, the Probation Officer took the Mother’s phone call complaints and counselled her.

[297]         The Court does not find that the Probation Officer owed a duty to disclose any information at the initial meeting in 2002, particularly in light of the Mother's response that she was aware of the offender's criminal past.

[298]         Between August 29, 2002 and September 14, 2003, the Mother spoke to the Probation Officer about the offender either four or five times, all of which except one[98]  were in cases of emergency as a result of harassment from the offender. In or about September 16, 2003, the Mother made the Probation Officer aware that the offender had threatened her.[99] At this time, the Probation Officer did not give her advice on how to protect herself and did not give her any further insight into the prior conjugal violence for which the offender had been convicted. The Mother was only to find this out on her own when she searched through the offender's possessions after their final separation in May, 2004. [100].

[299]         However, as of the middle of July, 2004 and based on all the information that had come to her knowledge in the interim wherein the Probation Officer knew or should have known that the offender was in a jealous, violent pattern that was “déjà vu”, the Probation Officer owed a special duty at that time to ensure that “what the Mother knew” was in fact “what she needed to know” to protect herself.

[300]         Had the Probation Officer inquired, she would have learned that the offender had lied to the Mother: leading the Mother to believe that he had been “set up” by a malicious former lover and that there was no validity to the conjugal violence conviction.

[301]         The Court determines that, in light of all the circumstances in this case, two distinct duties of disclosure arose as of mid-July 2004:

a) the Probation Officer had an obligation to correct the Mother’s erroneous belief that the offender’s past conviction for conjugal violence was “a judicial error” and to ensure that she understood the risk that existed; and

b) the Probation Officer had a duty to disclose the details of the offender’s record to the Mother, once it became clear that the Mother was likely in immediate danger. It is now appropriate to discuss in further detail a case discussed earlier that is comparable to the case at bar:  D.H. v. J.H.^[101]

[302]         In that case, the British Columbia Court of Appeal dealt with the question of a probation officer/agent’s duty to disclose certain information about a probationer to the probationer’s new partner. Specifically, in that case the B.C. Court of Appeal was asked to determine whether, by not informing that mother of a young boy (hereinafter the "parent") that her boyfriend (who had been given permission to reside with her by a probation officer/agent) had been convicted of sexual offences committed against young boys, was a breach of a legal duty owed to her by the probation officer/agent. The mother knew about the probation, and the officer told her that the boyfriend was not to have any unsupervised contact with children or to be left alone with them at any time. However, the parent asserted that if she had known the sexual nature of the offences, she would not have allowed any further contact between her son and the sexual offender/boyfriend.

[303]         The British Columbia Court of Appeal held that the probation officer/agent involved in that case disclosed everything that was necessary to ensure compliance with the probation order, and that the decision not to disclose any further information fell within the probation officer/agents’ professional discretion. In that case, the probation officer/agent expressly warned the parent not to leave her children alone with the probationer, and if she had followed this instruction, the risk of sexual abuse would have been greatly reduced. For those reasons, the B.C. Court of Appeal found that failure to provide information was not “a proper basis upon which to found liability", even though the probation officer/agent did not tell the parent of the specific risk of sexual abuse to young boys.

[304]         In D.H., the policy at issue was the British Columbia Notification Policy relating to child abuse offences. That document requires that information regarding probation orders and other restrictions be disclosed to “an at-risk person’s guardian as to the risk and the criminal history of the offender as it pertains to children.”  The B.C. Court of Appeal highlighted the need to balance the “immediate safety of the community in contact with the offender” with the “long-term objective of a safe community through rehabilitation of the offender and his successful integration into the community […]”[102]  At the heart of that policy is a recognition that certain members of society may be put at risk by the process of reintegrating offenders, and that the interests of all involved parties must be carefully balanced in that process.

[305]         Similarly, in the province of Quebec, this same principle is reflected more broadly in the Philosophie d’intervention en matière de réinsertion sociale aux Services correctionnels du Québec, where, as noted above, effective reintegration is said to involve exchange of information between “concerned partners” and careful assessment of the risks an offender poses to society.

[306]         Furthermore, in Quebec the Politique d’intervention en matière de violence conjugale attempts to articulate a balance between the risks that recidivism poses to victims of conjugal violence with the need to reintegrate convicted offenders.

[307]         The reasoning of the BC Court of Appeal, while not binding on this Court, is persuasive in view of the direct similarity of the policies of the two provincial correctional authorities.

[308]         The Court finds that, in cases such as this, where a common law spouse is being directly relied upon to aid with an offender’s reintegration, and where the probation officer/agent knows that this partner is not in possession of accurate information regarding the probationer’s past that would be important to enable her to protect herself, the obligation to inform past victims of conjugal violence of the conditions on which offenders are released, should extend to other foreseeable potential victims, such as the Mother. Where this obligation arises, it should extend to informing these reasonably foreseeable potential victims of conjugal violence of the existence of the criminal history and the presence of a risk.

[309]         In summary, the Probation Officer did have a duty to inform the Mother of the risk she was facing because of the offender, so that the Mother could take appropriate measures to protect herself and her family, which measures might include her involving the police, installing an alarm system, improving exterior night lighting and enhancing the security of her doors and windows.

[310]         This duty arose as a result of the following factors:

a)  The Probation Officer had developed a special relationship with the Mother. This began when the Probation Officer required the Mother to be interviewed with the offender when they started living together. The Mother was not just any member of the public: she was being used as an "agent social" to assist in the re-integration of the offender. The Mother was not simply a transient acquaintance but because of her strong values: zero tolerance for illegal drug use and zero tolerance for conjugal violence, she was being used by the Probation Officer to promote and enhance the ongoing re-integration of the offender; and

b)  In early July, 2004, the phone calls back and forth between the Probation Officer and the Mother showed an increasing reliance by the Mother on the Probation Officer. The Probation Officer was using the Mother to obtain information for her recording function as part of the Officer’s supervision of the offender. At the same time, the Mother was relying on the assistance of the Probation Officer to control the offender.

[311]             Specifically, the Court determines it was unreasonable that the Probation Officer :

a)  did not warn the Mother  that  the offender had committed a very serious act of conjugal violence against the woman with whom he had been living prior to the Mother;

b)  more particularly, the Probation Officer did not provide the Mother with certain critical details of the past history of the conjugal violence of the offender so that the Mother could better protect herself:

                                                                                          i.    the fact that the offender had threatened the children of his first spouse and that the first spouse (Ms. Brochu) had been required to obtain an article 810 CCC order to protect she and her children from the offender;

                                                                                        ii.    the fact that the attack on his second girlfriend had involved a break-in at her work place when the offender appeared to have been under the influence of illegal drugs; and

c)  did not explain the previous situation of jealousy, self-medication through cocaine and ultimately, impulsive gestures of extreme violence while under the probable influence of cocaine.

[312]             Under the next heading, the Court will determine whether these breaches were the direct and immediate cause of the alleged damages.

CAUSATION

 

Fault causing direct and immediate damages

 

Governing law

 

[313]         Liability in the present case, if any, is delictual under article 1457 CCQ.

[314]         Had the Probation Officer and probation service fulfilled their duty by alerting either the police or the Crown Prosecutor of a breach of probation, what would have ensued is highly dependent on the discretionary power of other public authorities, including Crown, judiciary and peace officers.

[315]         The Plaintiffs argue that the negligent behavior of both the Probation Officer and the City police began on September 15, 2003, in so far as they failed to ensure the Mother’s safety.

[316]         The House of Lord’s reasoning in a famous common law case raise similar issues worth considering. In Dorset Yacht v. Home Office, [1970] AC 1004, the House of Lords established key principles in three relevant areas: (1) the liability of public authorities, (2) a person’s liability for the acts of third parties that he has facilitated, and (3) liability for omissions.

[317]         In Dorset Yacht, a group of convicted young offenders were doing supervised work on an island as part of their sentences. One night, the supervising officers went to bed and left the boys unsupervised. While unsupervised, the group of boys escaped the island, boarded a yacht, and later collided with another yacht causing damage. The owners of the second yacht sued the Home Office in negligence for damages.

[318]         At the Court of Appeal, Lord Denning dismissed the action for damages, writing that:

“Many, many a time has a prisoner escaped - or been let out on parole - and done damage. But there is never a case in our law books when the prison authorities have been liable for it.”

 

[319]             However, the House of Lords overturned this decision and found the Home Office liable. Lord Reid applied the famous “neighbor principle” and wrote that the taking by the trainees of a nearby yacht and the causing of damage to the second yacht ought to have been foreseen by the officers as likely to occur if they failed to exercise proper control and supervision.  In the 2012 common law negligence case of Clements v. Clements, the Supreme Court of Canada decided:[103]

“46 […] A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss.  Scientific proof of causation is not required.”

[320]             The author Gardner notes that because of the indefinite meaning of these two words “immediate” and “direct” in article 1613 CCQ, Quebec law has a “coexistence de plusieurs théories de la causalité” and underscores “la très large discrétion laisse aux tribunaux en ce domaine”^[104].

[321]             The authors Jobin and Vézina note also from their study of the jurisprudence that it is difficult, if not impossible, to generalize regarding causation other than to say that the courts look at the specific circumstances of each case and that the matter is a question more of fact than of law - which provides a large discretion to the trial judge.^[105]

[322]             In 1997, the Quebec Court of Appeal^[106] provided more guidance by referring to the following principles from the 1996 Supreme Court of Canada case of Athey v. Leonati, [1996] 3 S.C.R. 458:

                

«  14. Le critère général, quoique non décisif, en matière de  causalité est celui du «facteur déterminant» («but for test»), selon lequel le demandeur est tenu de prouver que le préjudice ne serait pas survenu sans la négligence du défendeur: Horsley c. MacLaren, [1972] R.C.S. 441 . 15. Comme le critère du facteur déterminant n’est pas applicable dans certaines circonstances, les tribunaux ont reconnu que la causalité était établie si la négligence du défendeur avait «contribué de façon appréciable» au préjudice:  arrêts Myers c. Peel County Board of Education, [1981] 2 R.C.S. 21 ; Bonnington Castings, Ltd. c. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee c. National Coal Board, précité.  Un facteur concourant est important s’il a eu une incidence plus que minimale: arrêt Bonnington Castings, Ltd. c. Wardlaw, précité; voir aussi R. c. Pinske (1988), 30 B.C.L.R. (2d) 114 (C.A.C.-B.), conf. par [1989] 2 R.C.S. 979 .

16. Dans Snell c. Farrell, précité, notre Cour a récemment confirmé que le demandeur doit prouver que la conduite délictueuse du défendeur a causé ou contribué à causer le préjudice.  Le critère en matière de causalité ne doit pas être appliqué de façon trop rigide.  La causalité n'a pas à être déterminée avec une précision scientifique.  Comme l’a dit Lord Salmon dans Alphacell Ltd. c. Woodward, [1972] 2 All E.R. 475, à la p. 490, passage cité par le juge Sopinka  à la p. 328, il s’agit «essentiellement [d’] une question de fait pratique à laquelle on peut mieux répondre par le bon sens ordinaire».  Bien que la charge de la preuve incombe au demandeur, une inférence de causalité peut être tirée, dans certaines circonstances, même en l’absence de preuve scientifique positive. »

Proving causation is a critical element in personal injury cases, as is  underscored by the legal authors:^[107]        « Dans le cadre de la préparation d’un procès où de telles questions se soulèvent (N.D.R. : Question de causalité) il est primordial pour l’avocat de s’assurer d’approfondir tous les éléments de preuve disponibles qui peuvent avoir une pertinence sur la détermination du lien causal et, le cas échéant, l’incidence d’une condition préexistante sur l’évaluation du dommage, notamment avec les experts qu’il fera témoigner lors du procès.  Au procès, l’avocat devra s’assurer de mettre en preuve tous les éléments qui soutiennent sa thèse quant à ces questions et d’en souligner adéquatement l’importance lors de la plaidoirie.  Une preuve insuffisante ou autrement déficiente sur la question de la causalité peut avoir un impact déterminant sur l’issue de la cause ».

[323]             Finally, the Supreme Court of Canada undertook an extensive review of the issue of causation in the well-known case of Laferrière v. Lawson[108] (involving medical malpractice):

o    « Pour résumer, je formule les brèves observations générales suivantes: Les règles de la responsabilité civile exigent la preuve de la faute, de la causalité et du préjudice.

o   Les actes et les omissions peuvent constituer une faute et les deux sont soumis à la même analyse pour ce qui a trait à la causalité.

o   La causalité en droit n'est pas identique à la causalité scientifique.

o   La causalité en droit doit être établie selon la prépondérance des probabilités, compte tenu de toute la preuve, c'est à dire la preuve factuelle, la preuve statistique et les présomptions.

o   Dans certains cas, lorsqu'une faute comporte un danger manifeste et que ce danger se réalise, il peut être raisonnable de présumer l'existence du lien de causalité, sous réserve d'une démonstration ou d'une indication contraire.

o   Une preuve statistique peut être utile à titre indicatif, mais elle n'est pas déterminante.  Plus précisément, lorsqu'une preuve statistique n'établit pas la causalité selon la prépondérance des probabilités, la causalité en droit peut quand même exister lorsque l'ensemble de la preuve étaye une telle conclusion.

o   Même si la preuve statistique et la preuve factuelle ne justifient pas de conclure à l'existence de causalité, selon la prépondérance des probabilités, à l'égard d'un préjudice particulier (c'est à dire le décès ou la maladie), ces mêmes preuves peuvent justifier de conclure à l'existence de causalité à l'égard d'un préjudice moindre (par exemple, un léger abrègement de la vie, une augmentation des souffrances).

o   Il faut analyser la preuve avec soin pour déterminer la nature exacte de la faute ou du manquement à un devoir et ses conséquences de même que la nature particulière du préjudice subi par la victime.

o   Si après considération de ces facteurs, le juge n'est pas convaincu, d'après son évaluation de la prépondérance des probabilités, que la faute a causé un préjudice réel quelconque, il doit rejeter la demande d'indemnisation. »

[324]             Regarding the concepts of fault, causation, presumptions and burden of proof, the Supreme Court of Canada has further confirmed the following relevant principles established in the 2002 judgment of St-Jean v. Mercier^[109]:

a)  The determination of fault by the trial court is a mixed question of fact and law;

b)  On the contrary, the determination of causation by the trial court - in other words, whether the breach of contract caused the damage - “legally significant in an evidentiary sense” - is a question of fact;

c)  Presumptions may be used to prove causation but, as required by article 2849 CCQ these presumptions must be “serious, precise and concordant”.  If the plaintiff cannot meet these criteria for the presumptions they assert, “the plaintiff must actually establish the unknown facts rather than the trier of fact permit it to draw an inference from the known fact to the unknown fact”;

d)  Presumptions of fact  can establish both fault and causation; and

e)  Presumptions of fact are of little use to a plaintiff where expert evidence is disputed “since it will not be sufficient to assert that the fault is one of the possible causes” (this Court’s emphasis).

Causation: Two step test established by the Court of appeal in Ducharme^[110]

 

[325]             The criterion of reasonable foreseeability has occasionally been used in Quebec jurisprudence as part of the causation test, particularly in contexts involving multiple actors, intervening causes, and faults by omission. All three of these factors are present in this case.

[326]             In such cases, determining causation involves two steps. First, the injury must be proven to have been a direct, normal and immediate consequence of an act or omission, as appears from the analysis in the previous section.  Secondly, the Court then determines whether the injury was reasonably foreseeable by the defendant.

[327]             The Court of Appeal confirms this two step test as applied by the trial judge in Ducharme:

"[156] Il [the trial judge] retient d'abord à bon droit que la responsabilité des policiers n'est engagée que si le préjudice est une suite immédiate et directe de la faute. Il opine que l'analyse de ce lien tient compte des critères de la causalité adéquate et de la prévisibilité raisonnable. Il cerne ainsi ce qui doit le guider : 1) s'assurer que le dommage causé soit une suite logique, directe et immédiate de la faute reprochée; 2) s'assurer par la même occasion d'une prévisibilité raisonnable, soit que l'auteur de la faute pouvait raisonnablement prévoir la survenance du dommage. "

[328]             In Ducharme, the trial judge^[111], Mr. Justice Steve Reimnitz, notes that reasonable foreseeability has normally been utilized in Quebec in order to limit liability, in cases where a strict application of the theory of objective “causalité adéquate” produces disproportionate results:

"[320] L’application du système de la causalité adéquate est parfois critiquée en jurisprudence. Elle peut mener à la responsabilité d’un agent fautif pour un préjudice d’une gravité beaucoup plus élevée que la faute qu’il a commise et, par conséquent, à une responsabilité disproportionnée. La jurisprudence québécoise applique parfois le critère de la prévisibilité dans l’analyse de la causalité; le but étant de diminuer les effets que pourrait avoir l’application mécanique du concept de la causalité adéquate. "

[329]             Applying this approach, Mr. Justice Reimnitz found liability on the grounds that:

« [339] La prévisibilité découle ici de la nature même de la menace proférée. Par cette menace on réfère implicitement à l’utilisation d’une arme à feu lors de l'exécution de ses menaces. On pouvait raisonnablement s'attendre à ce que des dommages soient également causés aux gens qui accompagneraient Gélinas (Ed. note: the female victim)».

 

Reasonable foreseeability defined

 

[330]             Authors Baudouin and Deslauriers^[112] elaborate on the reasonable foreseeability criterion and its application in Quebec jurisprudence:

"d) Utilisation de la prévision raisonnable

1-627 — État de la jurisprudence — Même si théoriquement le système de la causalité adéquate et celui de la prévision raisonnable sont antinomiques, la jurisprudence a parfois cherché à utiliser le critère de la prévisibilité raisonnable dans la détermination du lien de causalité. En d'autres termes, cette adaptation revient à poser la question suivante : quels sont les faits qui rendaient objectivement possible la création du préjudice, et dont les conséquences étaient normalement prévisibles pour l'agent ? Cette combinaison des deux critères n'est pas sans soulever des difficultés, puisqu'elle tente d'allier une analyse objective à une analyse subjective et qu'il est parfois malaisé, dans des espèces particulières, de déterminer lequel d'entre eux a eu l'influence déterminante. Il paraît plus exact d'affirmer que les tribunaux utilisent ces deux tests comme deux processus séparés de filtrage de la causalité. Dans un premier temps, n'est retenu que l'événement objectivement susceptible de causer le dommage. Dans un second temps, lorsque cet événement se rattache à une conduite fautive, on se demande alors si les conséquences de l'acte ou de l'omission pouvaient être raisonnablement prévues ? Le premier délimite le champ de la causalité, le second le nombre des responsables. "

(this Court’s emphasis)

Analysis

 

[331]             How is the two step test applied to the case at bar? First, the Probation Officer’s failure to meet the standard of care of a reasonable probation officer/agent in the circumstances must be proven to have directly and immediately resulted in the injuries suffered by the Mother and her Son.

[332]             The second step is to determine whether the injuries claimed were "reasonably foreseeable" to the Probation Officer and the probation service. In other words, in addition to determining whether there is direct causation, the Court may still find that the Probation Officer is not liable to the extent that the injury was not reasonably foreseeable to her or the probation service. By way of example, in Ducharme there was clear evidence of reasonable foreseeability, including the wrongdoer's prior threats specifically mentioning the use of a firearm, and prior threats generally against persons accompanying the female victim.

[333]             In the present case, there is conflicting testimony concerning what precisely the Probation Officer knew and at what time. The Court will now make those findings of fact and then apply the two step test of reasonable foreseeability to the breaches of duty to (a) supervise the offender, (b) report to the Crown and (c) inform the Mother.

Causation and the breach of duty to supervise

 

[334]             The Court is aware of two other Quebec cases where there was a direct duty to protect life, the first regarding the police and the second regarding prison authorities:

a)            In the previously mentioned Ducharme case, there was the statutory duty of the defendant police force to protect the lives of the female victim and the injured men;  and

b)            In Papatie v. PGQ^[113], the case involved an incarcerated individual who had complained to prison authorities about threats to his life from a second inmate, which the second inmate ultimately carried out in the correctional facility.

[335]             In the present case, the Court recognizes that there is no such direct statutory duty to protect life upon the probation service and in particular, the Probation Officer. However, for the reasons that follow, the Court determines that the breach of the duty to supervise was a direct cause for the damages claimed by the Son. The evidence proves that based on the previous history of proper behavior by the offender when strict supervision was carried out, the Plaintiffs have proven that the breach of this duty to supervise caused the offender to spin further and further out of control.

[336]             The Court infers that the lack of proper supervision in July and August 2004 had the direct effect of allowing the offender to delude himself: not only could he avoid supervision and he was not accountable to the probation service, but also to delude himself that no matter what the Probation Officer said, the probation service would not follow up on her promised sanction against him. The direct consequence of this lack of supervision was the self-delusion and acting out by the offender of his rage and jealousy through his shooting of the son once, and then a second time.

[337]             Defence expert Lévesque gave the opinion that the act against the son was unforeseeable. The Court does not agree. The evidence proves that the probation service was aware of threats made by the offender regarding Ms. Brochu's children (and herself) and Ms. Lanteigne's 9 year-old son.  They were aware of the jealously of the offender and his ability to use indirect means to revenge himself for his perceived slight of being "abandoned". The offender's fraudulent activity in relation to the Mother's bank account is another example. Threats against the Mother could have and should have been perceived as also constituting a risk to her only dependent, the 15 year-old son with whom she lived, and, with whom the offender had also lived when he was with the Mother.

[338]             The offender was repeating old patterns: rejection, drug abuse, difficulties in social and work relations, harassment of a former spouse or girlfriend and threats of violence.

[339]             In fairness, expert Lévesque did not have the benefit of hearing all the evidence. However, he does recognize that the Probation Officer  in early July 2004 encouraged « […] madame L'Écuyer à se protéger contre M. Picard et à ne pas hésiter à contacter la police si besoin est ».^[114]

[340]             Given what the probation service knew about the offender's history, it is reasonably foreseeable that the offender - left effectively unsupervised by the probation service - would commit an act of violence against the Mother, her immediate family (her Son), or both.

[341]             The offender had confirmed in the July 6, 2004 supervision meeting to the Probation Officer that he “had plans” for the Mother and that he was going to commit suicide: his actions on the night of August 27, 2004 being his execution of these intentions.

[342]             To state the obvious, the Probation Officer cannot be held responsible for the breach of supervision while she was on vacation. However, in the parallel context of a correctional institution, the Court of Appeal has recognized that a breakdown of communication and the transmission of information from one employee to another can create "institutional responsibility^[115]. This principle applies equally to the present circumstances of the probation service in relation to Mr. XY and the duty probation officer/agent, and the lack of effective communication with the probation Officer before she left for vacation.

[343]              Granted, the offender had made threats only to the Mother or about the Mother, and had made no direct threats to or about the Son.  However, the probationary service was well aware of the offender's propensity to jealousy and to the use of violence when he felt abandoned. It is reasonably foreseeable that the probation service should have known that the offender would commit an act of violence to revenge himself against the Mother - or the logical extension of her persona - her dependent Son. The probation service was also aware that the offender self-medicated with cocaine in times of stress and that, as with Ms. Lanteigne, he was capable of senseless brutality while under the influence.

[344]             In the Ducharme case, the wrongdoer had made threats that he would harm the victim and anyone that she was with. 

[345]             The present case does not have such a direct and specific threat by the offender against the Son. At the same time, there was a limited pattern of violence towards children: the offender had threatened to harm to Ms. Lanteigne's 9 yr old son and the offender had, when all three were living together, thrown the Son out of the house and into the snow in winter, after the Son had played a prank. In view of the proximate relationship between the Mother and the Son (since he was a 15-year-old dependent living with her),  the probation service and the Probation Officer could  have reasonably expected revenge violence by the offender against the Mother and by reasonable  extension, against her more vulnerable Son.

[346]             The probation service and the Probation Officer in particular were well-aware of the offender having disproportionate feelings of dependency and abandonment at the end of a relationship, including: great feelings of insecurity, turning to cocaine abuse as a means of self-medication, intense jealously and a need to lash back at the person who “abandoned him”. The Probation Officer had certain variables which were beyond her control: the offender obtaining drugs or illegal weapons and his threats to harm or kill. However, she did have important tools in her arsenal to control such antisocial behavior, including regular supervisory meetings to help restore a sense of security for the offender and the threat of imprisonment if probation conditions were breached. Since the offender had expressed to the probation service that he did not wish to return to prison, such an aversion to prison was a useful lever for the probation service.

[347]             If the Probation Officer felt overwhelmed by the situation, she should have been able to turn to peer help or peer consultation. There was no evidence that she consulted with anyone in the probation service concerning how to handle this very risky situation nor that such consultation was available. In fact, the only evidence of any discussion was her briefing the supervisor, Mr. XY, prior to her vacation and as we have seen, the probation service response was essentially to do nothing until the Probation Officer returned from her one-month vacation.

Causation and the breach of duty to report

 

The events surrounding the threat to commit suicide, September 15, 2003

 

[348]             The Court will now consider the causation implications for the breach of the duty to report on the damages suffered.

[349]             The Plaintiffs allege that the Probation Officer breached her duty to report when she found out on September 16, 2003 not only that the offender had threatened to commit suicide, but also that he admitted to prolonged cocaine use during the time of the suspended sentence.  Also, the Probation Officer testifies that she had brought the issue of these breaches of the suspended sentence to the attention of a Crown attorney and that the Crown attorney had indicated there was insufficient evidence to prosecute. 

[350]             The Probation Officer indicates that one of her own professional reasons for not pursuing the matter further was the timing: there were only three (3) weeks left before the end of the suspended sentence and the beginning of the new probationary period.

[351]             The Plaintiffs have not proven on the balance of probabilities that these actions taken by the Probation Officer were unreasonable. The Court concludes that the Probation Officer did report to the Crown as required. The reasons why she did not pursue the matter further were reasonable. The evidence regarding the drug use was conflicting and the final decision on whether to prosecute was not in the hands of the Probation Officer, but in the hands of the Crown.

[352]             However, what the Probation Officer should have retained for future reference from this experience in September 2013 was the following:

a)            the hospital admission records following the suicide threat indicated the offender confessed to a physician that he had been taking drugs and going to bars throughout the time of the suspended sentence.  He appears to have made such a confession in a context where he was looking for rehabilitation help.  However, shortly after, when he spoke with the Probation Officer, he denied any such substance abuse.  Clearly, these conflicting stories indicate that the offender was prepared to lie to suit his own purposes and that he could not be believed without corroboration; and

b)            that the offender was manipulative and prone to antisocial behavior.

The offender’s failure to attend supervision meetings, culminating in the failure to attend the August 12, 2004 meeting

 

[353]             The present case has an important distinguishing feature from the Ducharme case.

[354]             In Ducharme, the police had a clear duty to protect the female victim who was killed. The breach of this duty was an immediate and direct cause of the shooting since the wrongdoer (an RCMP policeman on disability leave) was left in possession of his service revolver which he used in the shooting.

[355]             In the present case, once the duty to report was met, there was an intervening discretion that had to be exercised - not by the probation service - but by the Crown to actually institute a criminal prosecution for breach of probation.

[356]             Since no evidence was put before the Court as to the probability of such a prosecution or the likely timeframe within which any prosecution would be instituted, this Court cannot find that the breach of the reporting duty was a direct and immediate cause of the Plaintiffs' damages. The causal connection is too remote, for the following reasons.

[357]             The Plaintiffs have proven on the balance of probabilities that there was an unreasonable breach by the probation service (including Mr. XY and the duty probation officer/agent) to report the offender's failure to attend the August 12, 2014 meeting. The question now for the Court is:  did this unreasonable breach contribute directly to the offender inflicting the damages on the Son.

[358]             The probation service had been informed that the offender had a past history not only of threatening the women he had broken up with, but also threatening their children.

[359]             The Plaintiffs raised the following as potential breaches that should have been reported in the period of July-August 2014:

a)            the indirect threats made by the offender,

b)            the continuing harassment of the Mother by the offender;

c)            the indirect evidence of the offender's drug use including the advice from the Mother that the offender had failed a urine test as a result of which he had lost his trucker’s job and the Probation Officer's own observations of the 40 lb weight loss by the offender within a short timeframe and without explanation; and

d)            the Mother had also made the Probation Officer aware that the offender was no longer working.  Again, this is indirect evidence but the Probation Officer did nothing to corroborate whether in fact the offender was respecting the probation condition regarding employment.

[360]             While the Probation Officer has a reasonable discretion not to report any of these events in view of the difficulties with the evidence, what she did know and did admit was that following her early July 2004 meeting with the offender, she knew he was very unstable, was making indirect threats to the Mother and in view of his past pattern, the potential for violence was high.

[361]              When all these elements are analyzed together - which is the only reasonable thing for the probation service to do - it is evident that to not report to the Crown the breach of probations constituted by the 3 missed meetings of May 12, July 14 and August 12, 2004, is unreasonable.

[362]              The Probation Officer's July 30, 2004 letter to the offender underscores her intention to report a missed August 12, 2004 meeting, but the probation service failed to carry out this express intention.  This was not a simple error in judgment or a judgment call made within a reasonable spectrum of judgment calls; it was an unreasonable breach of a duty owed.

[363]             The Plaintiffs have proven that the probation service should have made a report to the Crown's office of the breach of probation: being the failure to attend the August 12, 2004 meeting and the two prior missed meetings.

[364]             However, the Plaintiffs burden does not end there, They must also   prove that even if these matters had been reported to the Crown, the Crown would have prosecuted in a timely fashion and this would have probably prevented the incident. The Plaintiffs did not meet this burden. Instituting a prosecution is entirely a matter of Crown discretion, the probable exercise of which was not put in evidence at trial.[116]

[365]             Neither side called any evidence on the exercise of Crown discretion regarding the alleged breach constituted by the missed August 12 meeting (and two prior meetings).

[366]              Based on this lack of evidence and for the reasons that follow, the Plaintiffs have not met their burden of proof to show that even if the probation service had made a report, that the Crown would probably have used its prosecutorial discretion to take proceedings.

[367]             To begin with, the uncontradicted evidence is that if the Crown decides to take a prosecution for breach of probation, all previous probation breaches of whatever gravity are put into the charge.

[368]             At the outset, the Court has analyzed what would have been required to undertake a prosecution for breach of probation in the important case of Regina v.  Bryden Bingley,[117]  a decision of His Honor Judge E.C. Blake of the B.C. Provincial Court.

[369]             In that case, the accused had missed one appointment with his probation officer in late February, for which he had been admonished by the probation officer. He was charged criminally after he missed a second appointment on April 25. In his defence, the accused’s uncontradicted testimony was that he had tried unsuccessfully to reach his probation officer after that second date and that subsequently, he did in fact attend all his probation meetings. Furthermore, the accused argued that he was under a lot of stress due to emotional difficulties in dealing with the death of his infant son, that these difficulties made it hard for him to cope with new employment and that ultimately, he had lost the slip of paper upon which the date and time of his probation appointment had been noted and, to cap it all off, that he had forgotten the appointment.

[370]             The defining words of the offence of breach of probation are set forth in s. 733.1 of the Criminal Code:

"      733.1(1). An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of:

 

       (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

       (b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both. "

 

[371]             Judge Blake noted the important penalties provided for this offence:

"  (19) I note that in the revised legislation, Parliament has not only changed the wording, but also varied the status of the offence. The offence of breach of probation is no longer a purely summary conviction matter. Instead, it can now be prosecuted either by indictment or by summary conviction, in the Crown's discretion. If the Crown elects to prosecute the offence by indictment, the accused is liable upon conviction to a term of imprisonment of as much as two years. If the matter is prosecuted by summary conviction, the maximum term of imprisonment is eighteen months. In a summary conviction prosecution, there is also the possibility of a fine being levied in an amount up to two thousand dollars, either in addition to or instead of the term of imprisonment. "

 

[372]             Following a detailed consideration of earlier versions of the law and earlier jurisprudence, Judge Blake determined that the usual mens rea is still required for this offence. He stated the following as the question he had to answer:

"  (40) I must address myself to the issue of whether it has been established beyond a reasonable doubt that the Defendant acted "deliberately and intentionally". Was he “deliberately disobedient"? If the answer on that issue is in the negative, I must still consider whether the Defendant was reckless in his behavior."

 

[373]             While he said that the accused was "careless", Judge Blake found that the accused was not guilty of breach of probation as the Crown had not proven the requisite mens rea.

[374]             What are the implications for the present case?

[375]             The excuse given by the offender was that he was too busy with work to make the August 12 appointment and that he had received the July 30 letter from the Probation Officer on August 19, 2004, i.e. after the scheduled meeting.

[376]             The Plaintiffs have not proven that the Crown had evidence of the necessary mens rea to convict the offender on his failure to attend any of the three missed supervision meetings. The Crown had no documentary proof of the date of delivery of the July 30 letter since it was sent by regular mail.

[377]             Not only have the Plaintiffs not proven that the Crown would have exercised its discretion, there is no evidence of when such a prosecution would have been undertaken. It must be remembered that from the missed Aug. 12, 2004 meeting which was a Thursday, the shooting was only 15 days later on Friday, August 27, 2004.

[378]             Accordingly, the Plaintiffs' have not proven the final link in this syllogism: would the Crown have taken a prosecution against the offender for breach of probation and if so within what timeframe?

[379]             Based on this analysis, this issue is closed. However, for the sake of completeness, the Court will analyze what it would have found if it had been proven that charges would probably have been laid by the Crown on a timely basis.

[380]             There is evidence that at an earlier point in the offender’s supervision by the probation service, the offender had admitted that he wanted to reform and he never wanted to go back to prison. There is no evidence to prove that his strong desire to avoid another term in prison had changed.

[381]              The Court finds it probable that if the Crown had prosecuted for breach of probation within a very short period, say 7 days from the August 12 breach[118], the following would probably have happened.  The probation service would have scheduled regular even weekly supervision meetings with the offender, which he would have attended for fear of having additional charges laid. In such circumstances, the Probation Officer (or her colleagues before she returned from vacation), would have had a closer opportunity to be in contact with the offender and be able to influence his actions so as to avoid the shooting.

Causation and the breach of duty to inform the mother

 

[382]             The Court determines that a duty to inform the Mother of the danger presented by the offender arose in early July, 2004, when the Probation Officer was advised by the Mother of her break-up with the offender and of the indirect threats by the offender.

[383]             The issue of causation in relation to this breach needs to be looked at in the context of the information the Mother already knew about the offender to determine whether having the additional information that the Probation Officer should have provided to her would have had a causal effect on her actions to protect herself (and her Son).

[384]             The Plaintiffs’ expert criminologist, Mr. Roch Tremblay was of the view that a person with antisocial tendencies, such as the offender, should not be allowed to have his irresponsible behavior "put his entourage in danger" (this Court’s translation).

[385]             In particular, he was critical that the Probation Officer did not "show more compassion and take actions to protect" the Mother.

[386]             Based on the evidence before it, the Court determines that further information, while useful, would not materially have altered the Mother's approach and accordingly, would not, of itself, have prevented the damages. 

[387]             Why? The Mother knew the offender's unstable, jealous and violent background because she had found the probation reports in May 2004.  At the same time, these documents made the Mother aware that the conjugal violence conviction was not a legal mistake (as misrepresented to her by the offender) but arose out of violent conduct by the offender to a previous common-law spouse.

[388]             On her own testimony, the Mother had been exposed to the offender's violence directed toward her, as the following examples from the evidence demonstrate:

a)  the "landscaping incident" in May 2004;

b)  the frightening "rope incident" in June 2004;

c)  the dead dog photo on her car in mid-July 2004 with the offender's message to her;

d)  the continuous harassing phone calls;  and

e)  the indirect threats, including the evidence that Mr. Brian Mercier, the offender’s former employer had told the Mother on or about July 19, 2004 that the offender was looking for a handgun.

[389]         Furthermore, not only was the Mother aware of the danger posed by the offender, she had taken certain measures to protect herself, such as:

a)  during a two-week period in the summer of 2004, she had moved out of her own residence and, with her son, moved into accommodation owned by her cousin in another community.  She could not stay there because the cousin needed to return; and

b)  not only did she sleep with a can of pepper spray and baseball bat in case of a break-in by the offender, she also altered her sleeping arrangements so as to sleep on the same floor of the house as her Son.

[390]             The Mother was clearly aware of the real threat posed by the offender.

[391]             The error in judgment she made was to assume - when the harassing phone calls stopped in the two week period before the August 27 shooting - that the offender was going to leave her alone. As a result, she let down her guard and this may well have been the offender's intent. It must be remembered that he had told the Probation Officer at their last supervisory meeting of July 7, 2004 that "he was planning something".

[392]             In these circumstances, the Court determines that the Plaintiffs have not proven on the balance of probabilities that having the additional information from the Probation Officer would have probably prevented the shooting.

Novus actus interveniens and apportionment of fault

 

[393]             Is there a novus actus interveniens in this case?  The Court determines there is not.  In this analysis, the Court has been guided by Mr. Justice Clement Gascon (as he then was) while sitting on the Court of Appeal in the Ducharme decision.  In determining whether a causal link had been broken, he noted that there had to be a complete break between the initial fault and the ultimate damage such that a new intervening cause, without any direct relationship to the initial cause, in fact produced the ultimate damages.[119]

[394]             In the present case, the Attorney General argues that the damages resulted from more than one fault which requires the Court to apportion the responsibility among the alleged wrongdoers: the offender, the Mother, and the City police.

[395]             The Plaintiffs only claim damages from the Attorney General.

[396]             The Court agrees that this apportionment exercise must be undertaken if the Court finds that more than one wrongdoer is responsible.[120]

[397]             However, the Court determines that the combined effects of the actions by two actors played a part in causing the damages suffered by the Plaintiffs.

[398]             C.C.Q. Article 1478 regarding apportionment of liability states:

"Where an injury has been caused by several persons, liabilities are shared by them in proportion to the seriousness of the fault of each. The victim is included in the apportionment were the injury is partly the effect of his own fault."

 

 

Did any contributory fault by the City police cause the alleged damages?

 

[399]         The written defence asserts that the Probation Officer spoke with City police officer Kessler who told her that the Mother should report even indirect threats. However, there is no evidence that the Mother ever did so nor that the Mother ever laid any complaint with the City police in relation to harassment by the offender.[121]

[400]         Police Officer Kessler admits that he spoke to the Probation Officer since his file indicates this but, he has no present recollection of such a conversation.

[401]         As noted earlier, the Mother has alleged that she advised the city police of the harassment and threats made by the offender.

[402]         The Court accepts the evidence of the Probation Officer that the Probation Officer did speak to Officer Kessler who advised her that the Mother should contact the police even if there were indirect threats.

[403]         The Plaintiffs filed the transcripts of examinations on discovery both of Officer Kessler and of Police Chief Frenette of the City police.[122]

[404]         Officer Kessler had no direct recollection that he had spoken to the Probation Officer.  He confirmed that he would have both written down and followed up any complaint regarding conjugal abuse, had it been received by him either from the Mother or the Probation Officer.  He has no recollection of ever speaking with the Mother.  There was no police record of any such complaints. 

[405]         He confirmed that complaints concerning conjugal abuse were treated seriously. 

[406]         Police Chief Frenette undertook to verify the police records up to July 27, 2010 and there were no other reports (other than the bank fraud complaint) either from the Mother or any reports concerning the suicide threat of the offender in or around September 15, 2003.

[407]         Based on the evidence, it has not been proven on the balance of probabilities that any complaints were made to the City police either by the Mother or by the Probation Officer concerning specific instances of conjugal harassment or abuse by the offender.

[408]         The fact that there is no record whatsoever of any complaints is sufficiently probative that the burden to prove the complaints has not been met. Hence, the Court cannot find that the police breached any duty to protect the Mother or the Son.

Did any contributory fault by the Mother cause the alleged damages?

 

[409]             The Mother has already suffered a great deal as a result of the reprehensible actions of the offender. However, the Attorney General argues that her fault was contributory.

[410]             In Ducharme, the victim was not found to have committed any contributory negligence by keeping contact with the wrongdoer as a means of seeking to keep him calm.[123]

[411]             The Court determines that, based upon all that she knew, the Mother made an error in judgment in attending at the Bar on the evening of August 27, 2004 but for the following reasons, this error did not constitute contributory fault. The Court will now review the relevant actions of the Mother.

[412]             Firstly, the Mother was completely exasperated by the offender’s harassing behavior, particularly as result of late-night telephone calls.  She testified that she noted such calls each day in her personal diary.

[413]             Secondly, on July 21, 2004, she found the photo of her dead dog on the windshield of her car with a note from the offender indicating that she would face the same fate as her deceased dog.

[414]             Thirdly, having seen the psychiatrist’s report on the offender that was provided to the Court for sentencing, she was aware that the offender was capable of serious acts of conjugal violence

[415]             Fourthly, she was so afraid of the threat of violence that prior to August, 2004 she had taken the following preventive actions at various times:

a.    she moved her bed into the same room as her Son;

b.    she slept with a baseball bat as well as a can of pepper spray;

c.    she moved out of her own house to live at the residence of a relative because she was afraid of being attacked at home. Her sister Christine had offered to let the Mother move in with her. City policeman Caron had advised her to move from her present residence and change her phone number; and

d.    she had been told by Mr. Mercier, the offender's former employer that the offender had been trying to obtain a handgun.

[416]     Fifthly, in addition to her own personal safety, she knew that the offender had physically roughed up her Son in the past.  Although this occurred on only one occasion, the offender, after the Son had played a prank, physically took the Son from the Mother's house and threw him in the snow in the middle of winter.

[417]     Sixthly, she was aware that the offender continued to frequent the Bar:

a.    she herself attended at the Bar on July 14, 2004 and the offender arrived later.  Her diary notes that she vocalized her extreme displeasure with the offender and that he overheard this;[124]

b.    on July 20, 2004, she saw his truck parked beside the Bar when she drove by; and

c.    on July 26, 2004 her girlfriend told her that the offender was at the Bar that evening.

[418]         Seventhly, when the Mother left her house in the evening of Friday, August 27, 2004, she left her Son alone in the house without ensuring that all the doors were kept locked.  Granted, she had received no harassing phone calls from the offender since August 19, 2004 but this still did not mean that she could "let her guard down" as she did, particularly in light of all the previous circumstances.

[419]         The Mother thought that the danger from the offender had passed; she was relieved and went out to have a drink with a girlfriend. While her assessment was proven incorrect by subsequent events, the Court concludes that the Mother went to the Bar on the basis she would not see the offender there.

[420]         The Court cannot accept the defence argument that the Mother’s conduct was negligent.

[421]         Just as the female victim in Ducharme thought her actions might calm the ultimate shooter, the Mother sought a moment of relaxation after months of stress and tension. These decisions were costly but they did not reach the level of contributory fault.

Is there extra-Contractual Solidary liability?

[422]             Article 1525 CCQ states that "solidarity between debtors is not presumed; it exists only where it is expressly stipulated by the parties or imposed by law" (this Court's emphasis).

[423]             Article 1526 CCQ states: "The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra-contractual". 

[424]             This second article requires two conditions to ensure that defendants are solidarily liable pursuant to this article: there must be several extra contractual faults and the faults must all cause one and the same prejudice.  The faults are not required to be simultaneous either in time or in space.[125] In the present case, these conditions are met by the actions of the offender and the Probation Officer and probation service.

[425]             For the reasons that follow, the Court determines that the offender bears 70% of the apportionment for the fault but that the Attorney General must bear the remaining 30%. These two actors are solidarily liable for the fault and resulting damages. This apportionment is established based on the earlier success the Probation Officer and probation service had after the suicide threat of September 2003. By undertaking their duties of recording and close supervision, the Probation Officer was able to bring the offender back into line at that time. The failure to undertake those duties from mid-July 2004 onward permitted the shooting to occur. However, as between the two actors, fault is not equal: the offender is clearly more at fault. While mathematical precision in such an apportionment is not possible, the Court determines that the 70/30 split is reasonable and is supported by the evidence.

 What Are the Legal Consequences of This Finding of Solidary Liability

[426]             Under article 1523 CCQ, the Plaintiffs are able to sue one of the solidary co-debtors to perform the whole obligation.  Accordingly, the Plaintiffs are entitled to sue only the Attorney General who, irrespective of the apportionment of liability, is solidarily responsible for all of the damages, with whatever recourses the Attorney General may be able to exercise elsewhere.

Is there Any Legal Effect on the Present Action of Plaintiffs' Out Of Court Settlement with the City?

 

[427]             The following is the relevant excerpt from the settlement between the Plaintiffs and the City:

" En considération du paiement de la somme de [caviardé], Guylaine l’Écuyer et Steven l’Écuyer donne quittance complète, finale et définitive à la Ville de Deux-Montagnes, ses employés, ses successeurs, ayants droits et assureurs, de toute réclamation, action et demande plus amplement décrits dans l’action portant le numéro de Cour 500-17-032667-068 […]

   La présente quittance et transaction vise la totalité de la part de la défenderesse Ville de Deux-Montagnes dans toute responsabilité solidaire pouvant résulter des faits  décrits dans l’Action, part que les demandeurs reconnaissent avoir reçue divisément en considération du consentement de la part de la défenderesse Ville de Deux-Montagnes à ce que la présente cause soit réglée hors Cour et les demandeurs font expressément remise de solidarité à la défenderesse Ville de Deux-Montagnes; "

 (The Court's emphasis)

[428]         The relevant article is art. 1690 CCQ.

[429]         The Attorney General argues that the Plaintiffs would be indemnified twice if they are allowed to keep the settlement monies received from the City without having this amount deducted by the Court from any ultimate damage award to the Plaintiffs in the present action.

[430]         The Attorney General relies on the 2013 Québec Court of Appeal decision in Attorney General of Canada v. Hinse.[126]

[431]         However that case stands for the proposition that - for a defendant to fix responsibility on a creditor who has provided a "release of solidarity “remise de solidarité)" pursuant to article 1690 CCQ - there must be a finding that the co-debtor to whom the “remise” was given, did in fact bear a portion of responsibility for the damages.[127]

[432]         As required by the Hinse case, this Court did undertake to determine whether there were multiple parties legally responsible for the damages alleged and what percentage responsibility each might bear.[128]  The Court of Appeal calls this a "very delicate exercise" especially when there may have been several actors causing faults over a period of time and with different effects.[129]

[433]         Accordingly, the Court must reject the Attorney General's argument since it has found that the City had no liability for the Plaintiffs' damages on the basis of the evidence put before this Court.

[434]         The fact that the City settled the case out of court does not imply any admission of liability. Accordingly, the release of solidarity granted by the Plaintiffs to the City has no effect on this judgment since the City was not found to be a co-debtor by this Court.  The Court qualifies the settlement amount as an ex gratia payment made to the Plaintiffs by the City to avoid further litigation and potential exposure.  Accordingly, no deduction will be made by the Court from this judgment.

[435]         The Declaration of Settlement was filed into the Court record in a sealed envelope.

[436]         The Court heard arguments from all parties, including counsel for the City, regarding whether the amount of the settlement could and should be kept confidential.  The City took the position that it should be kept confidential.[130]

[437]         As a result of making the earlier finding of no liability for the City, the Court is not required to rule on whether the actual amount of the settlement-which was contractually agreed by the Plaintiffs and the City to be confidential - is required to be disclosed into the public record.[131]

[438]         The only evidence before the Court concerning the solvency of the estate of the offender came from the testimony of the first common law spouse of the offender, Ms. Dominique Brochu and the daughter of she and the offender, Ms. Karen Brochu Picard. The uncontradicted evidence is that the daughter - the offender's sole legal heir - renounced by notarial deed[132]  to any right she might have in the intestate succession of her late father (the offender) because all that remained were debts ($34,000 of debts according to Ms. Dominique Brochu).

[439]          For the purposes of this judgment only, the Court finds that the estate of the offender is insolvent within the meaning of article 1690 CCQ.

[440]         As noted, the Court has apportioned liability 70% to the late offender and 30% to the Attorney General. However as a result of the insolvency of the estate of the offender and the application of article 1690 CCQ, the Attorney General is responsible to pay the full judgment awarded in favor of the Plaintiff Son.

DAMAGES

 

[441]         In matters of civil responsibility, article 1457 CCQ requires the wrongdoer to compensate the plaintiff for bodily, moral or material injuries.

[442]         The Court must, as far as can be done by a monetary award, try to return the personal injury victim to their situation as it would have been before the incident. This legal principle is called ''restitution intégrale". The authors Baudouin and Deslauriers state this objective is an ideal and the jurisprudence confirms the role of the Court in practical terms is to seek to arrive at a just and reasonable indemnity considering all the circumstances of the case[133]. In relation to non-pecuniary damages, the monetary award permits the victim to better cope and deal with the difficulties they will now be required to better cope with in their daily lives by providing them with the money to enjoy other amenities which are still available to them.[134]

The Mother’s Claim

 

[443]             In the December 3, 2013 final amendment to the Introductory Motion, the Mother's final claim was:

« 41.  Ces dommages non-compensés par l’IVAC se détaillent comme suit:

En ce qui concerne les dommages non-pécuniaires;

Douleurs, souffrances, inconvénients et perte de jouissance de la vie :

Indemnité calculée sur la base d’un montant per diem équivalent à un D.A.P. de 15%, soit une indemnité quotidienne de 15.00 $:

Pertes non pécuniaires passées         39 841.00 $

Pertes non pécuniaires futures :         112 890.00 $

Frais de gestion    n/a

Total des pertes non pécuniaires :      152 731.00 $

 

Sous total (dommages non- pécuniaires)     152 731.00 $

En ce qui concerne les dommages pécuniaires :

-Perte de bonus annuel d’environ 1 800.00 $/an pendant deux ans payable normalement par son employeur Hydro-Québec :

Total :           4 635.00 $

Perte de deux années de participation à son fonds de pension chez Hydro-Québec calculée sur la base d’une rente annuelle de 1 395.00 $ :

Total 6 021.00 $

Total des pertes pécuniaires :   10 656.00 $

Sous-total (dommages - pécuniaires)           10 656.00 $

GRAND TOTAL POUR GUYLAINE L’ÉCUYER       163 387.00 $ »

 

[444]         Both the Mother and the Son were indemnified as victims of crime by the Province's IVAC legislation. The Superior Court has described this state-run indemnification regime as follows:

Suivant cette loi, la victime d’un crime est une personne qui au Québec est blessée en raison d’un acte d’une autre personne et résultant directement de la perpétration d’une infraction (article 3), telles des voies de fait.  Cette victime peut bénéficier des avantages prévus à cette loi (article 2), soit une indemnité pour incapacité permanente, une indemnité pour incapacité temporaire, l’assistance médicale et la réadaptation en vue de faciliter son retour à la vie normale et sa réinsertion sur le marché du travail (article 5, qui renvoie aux bénéfices prévus aux sections III, IV et V de la Loi sur les accidents du travail.).

[445]         Further to the Mother’s IVAC claim[135] (whose governing law incorporates by reference the indemnification scheme under the CSST), she has received and will continue to receive IVAC indemnification.  This indemnification must be deducted from any civil damage award she receives for the same injury[136]. The Mother alleges that it was impossible for her to return to work immediately after the incident because she was required to take care of her Son and because of the psychological trauma caused by the incident.

[446]         The Mother left school after completing Secondary IV.

[447]         The Mother was an occasional employee for Hydro-Québec for which she worked from the age of 24 up to August, 2004. She worked mostly as a meter reader and although she was an occasional employee, she worked regularly. She became a permanent employee of Hydro-Québec in 2006.

[448]         The Mother claims that because of the time she took off work and during which she cared for her Son following the incident, she lost two years of contributions that she could have made to her pension plan and so, she must work two (2) years longer to obtain the same pension benefits she would have had if she had been able to work without interruption. Moreover, she alleges that she lost the annual bonus she would have otherwise received during her absence from work.

[449]         The defence argues that it "is astonishing" that the Mother received her full salary through IVAC during her absence and yet still is claiming for her loss of bonus and participation in the pension plan for that forced absence. Both claims must be proven by the Mother on the balance of probabilities.

[450]         According to the evidence, IVAC paid and pays temporary revenue replacement to the Mother equivalent to 90% of her net retained revenue.[137]

Pecuniary Damages Claim

 

Claim for two years of lost bonus from employer ($4,635.00) that the mother did not receive for the period she was absent from work as a result of the incident.

 

[451]         The Mother's testimony was the only evidence on the claimed bonus. She said she had previously received approximately $1,800.00 as an annual bonus in the past.

[452]          No evidence was called on behalf of the Mother from her employer to confirm that she would probably receive this bonus for 2005 and 2006, the two years in issue.

[453]         The Mother did not prove that a guaranteed bonus was part of her remuneration with her employer and did not prove that she would probably receive such bonus in 2005 and in 2006.

[454]         Accordingly, this claim is not proven.

Claim for two years of missed participation in pension plan: $6,021.00

 

[455]                 The Court understands that - while the Mother was absent from work and receiving IVAC benefits following the incident - she was not able to contribute to her employer's pension plan. Therefore, to receive the same pension benefits as if she had not been absent from work, she would have to work approximately two years longer to compensate for the amount of contributions not made during her absence.

[456]         Actuary Carolyn Martel on behalf of the Mother [138] calculated the alleged loss of two years of participation in the Mother's pension plan based on an annual estimated pension loss of $1,395.00. She calculated the loss to the pension fund as:

a.    value of loss of additional pension: $11,507.00

b.    minus premiums Mother would have had to pay: $5,486.00

c.    equal to a loss of $6,021.00.

[457]         Accordingly, by retiring at the usual age (and foregoing working the two extra years), the Court understands that the Mother will receive less of a pension than she would have otherwise.

[458]         As the Court seeks to put the victim back in the position they would have been if the incident had not occurred, this loss of pension may be a real loss and, if the evidence in support of this claim is proven on the balance of probabilities, such a loss may be compensated.

[459]         The Court of Appeal in Mont St-Sauveur has confirmed that there are certain situations where an actuarial expert can base an opinion on "easily ascertainable" facts without the direct evidence being adduced into the Court record where, as in that case, the expert actuary had consulted two financial institutions regarding the lowest management fees for administering the potential damages award.[139]

[460]         In the present case and distinguishable from that Court of Appeal case, Ms. Martel provides no reference as to where she obtained these figures: was it from the Mother, was it from the employer? Counsel for the Plaintiffs chose not to provide this critical factual foundation. Exhibit P-48 which is a statement from the Mother's employer regarding her pension plan up to December 31, 2008 is of no assistance.

[461]         Accordingly, the Court is not able to evaluate the reliability of the figures used in Ms. Martel's report.

[462]         In the circumstances, this claim is also not proven.

Mother’s non-pecuniary damages claim

 

[463]         The Court of Appeal has emphasized that the determination of an award for pain, suffering and inconvenience by the trial court is an exercise in careful balancing of the evidence rather than a “rigorous calculation”.[140]  The Court must use an approach that is both individual to the case as well as functional to arrive at a case-centered determination. 

[464]         To seek guidance, trial judges find it useful to consider similar cases.[141]

[465]         Actuary Martel makes reference to the Court of Appeal decisions in Brière v. Cyr[142] and Villeneuve v. L.F.[143] to come up with a comparable to attribute a daily amount for both the Mother and the Son.

[466]             In Brière, the court awarded 7% DAP and found non-pecuniary damages of $10 per day. In Villeneuve, for a DAP of 17 %, the amount of $17 per day was awarded.

[467]         Accordingly, the Mother, based on these comparables, uses the DAP determined by psychiatrist Dr. Louis Morrissette who himself uses the IVAC scale of 15% to claim $15 per day for the Mother’s non-pecuniary damages[144].

[468]         Where payments have been made by IVAC (or the CSST), Québec law requires that these amounts be deducted from the corresponding heads of damages that are being claimed in the civil proceeding, i.e. amounts paid for past lost earnings, amounts paid for future lost earnings, and any amounts paid for non-pecuniary loss.

[469]         Under article 1608 CCQ, the creditor who sustains physical injuries is entitled to cumulate “prestations” received from third parties for these injuries except where the third party is subrogated to the rights of the creditor. In the case of IVAC, there is a statutory subrogation.[145]

[470]         Exhibit P-42 from IVAC confirms that the Mother received an IVAC DAP of 7% for partial permanent incapacity from May 8, 2006 to May 31, 2008 and a capital amount of 23,137.97 on June 5, 2008 (Total: $27,191.88).

[471]         From May 8, 2006 onward for the rest of her life, the Mother receives an indemnity equal to DAP 15% based on the IVAC scale. As of the end of October 2013, this amount was in the order of $400 per month.

[472]         In fact, this was also the percentage used by Dr. Louis Morrissette, the Mother's expert psychiatrist in his report of July 15, 2008. [146]

[473]         On the other hand, the Defence expert psychiatrist, Dr. Jacques Gagnon, uses the American Medical Association (AMA) scale to find 5% DAP global permanent disability for the Mother. His opinion is that she suffers from a minor after-effect of chronic post-traumatic stress syndrome.

[474]         The Court is convinced by the reasoning in Dr. Gagnon’s conclusion, particularly since the Mother was capable of returning to work and having an active social life while still suffering certain anxieties and avoidance behavior. Dr. Gagnon notes that she no longer requires psychological or pharmaceutical treatment. Dr. Gagnon also finds that there was a substantial interpersonal conflict between the Mother and her own mother which pre-existed the incident. As for that relationship post-incident, the Mother testified that her own mother had blamed her for what had happened to the Son.[147]

[475]         The majority jurisprudence supports that percentages of permanent disability should be based upon the AMA scale and not the guides used for Quebec government indemnification programs, such as with IVAC or the CSST.[148] As the parties did not provide any detailed argument as to which scale is to be preferred and why, the Court determines that the principle of stability of the law must prevail and so, the Court determines that the AMA guidelines are to be preferred since they are preferred in most civil cases.

[476]         Because of the Mother’s underlying condition, Dr. Gagnon attributes to the incident a percentage of 2%, which is 60% of the Mother’s global DAP which Dr. Gagnon determines is of 5% on the AMA scale.

[477]         Given all the evidence, the Court is satisfied that the lifelong monthly indemnification that the Mother already receives from IVAC[149] constitutes proper damages under article 1611 CCQ to the Mother for her direct and immediate non-pecuniary loss. No further damages are proven.

The son’s claim

Pecuniary damages claim

 

[478]         In the December 3, 2013 final amendments to the Introductory Motion, the Son's final claim was advanced as follows:

À ce jour, ces dommages non-compensés par l’IVAC se détaillent comme suit :

a) En ce qui concerne les dommages non-  pécuniaires :

Douleurs, souffrances, inconvénients et perte de jouissance de la vie :

Indemnité calculée sur la base d’un montant per diem équivalent à un D.A.P. de 70%, soit une indemnité quotidienne de 70.00 $;

            Pertes non pécuniaires passées :        185 925.00 $

            Pertes non pécuniaires futures :          644 685.00 $

            - Frais de gestion : 65 687.00 $

            Total des pertes non pécuniaires :       896 98.00 $

            Sous-total (dommages non-pécuniaires)            896 298.00 $

b)     En ce qui concerne les dommages pécuniaires :

          -Perte de salaires :

            Valeur des pertes de salaire passées :             283 420.00 $

            -Valeur des pertes de salaire futures : 1 392 897.00 $

            - Frais de gestion : 69 645.00 $

   -Total des pertes de salaires : 1 745 962.00 $

Dépenses pour soins reliés à sa condition, incluant soins à domicile, aide personnelle et domestique, aide technique & aide à la mobilité :

            -Valeur des dépenses passées : 0.00 $

            - Valeur actuarielle des dépenses futures :             315 582.00 $

            - Réserve d’impôt : 110 454.00 $

            - Frais de gestion : 37 870.00 $

            - Total des dépenses passées et futures :             463 906.00 $

            Sous total (dommages-pécuniaires)    2 209 867.00 $

GRAND TOTAL POUR STEVEN L’ÉCUYER :            3 106 165.00 $

[479]         Similar to the situation with his mother, the Son had claimed under IVAC. In 2004-2005, he received an amount of $9711.08 for total temporary incapacity and continues to benefit from an IVAC program providing adaptations to home and vehicle. Also, as of October 1, 2005, he receives lifelong monthly compensation based on lost annual income of $15,538.00, the indexed wage that the Son was earning as a part-time gas attendant at the time of the incident. That compensation award was upheld in an appeal taken by the Son under the IVAC legislation. [150]

[480]         Before this Court, the Son claims for loss of future income on the basis that but for the incident, he would have worked as a plumber.

[481]         Under para. 2, article 1611 CCQ, future injury is compensable if it is certain and able to be assessed.  As Professor Daniel Gardner states, this means that the alleged future loss of income must be proven on the balance of probabilities.[151]

[482]         Prof. Gardner notes that in Quebec, the jurisprudential tendency where the victim is a very young child or where the proof is vague on the child's future career prospects, is to use the average income in Quebec. [152] However, he also notes that where the child is older, and a fuller and more personalized proof (school grades, aptitudes, parents’ education and background) is put in evidence, then the courts can and should look at other than the Quebec average income where the evidence is sufficiently probable that the victim would have a higher than average future career income were it not for the injury. [153]

[483]         In the recent decision of Stations de la Vallée de St-Sauveur Inc. v. M.A.,[154] the Court of Appeal approved a non-exhaustive list of subject areas considered by the trial judge in her determination of the appropriate salary scale for future earnings of an injured child:

a.    academic record

b.    sense of discipline and other personal qualities before the accident;

c.    family background including emphasis placed on higher education and work ethic and intelligence of other family members; and

d.    business and academic accomplishments of the parents.

[484]         There was virtually none of this type of evidence put before the Court in the present case.

[485]         The evidence is to the effect that the Mother did not complete high school but did complete a secretarial course after high school.

[486]         Plaintiffs’ counsel asserts that the Court should attribute future loss of income on the basis that the Son would have become a plumber had it not been for the incident.

[487]         The defence asserts that there is insufficient evidence to prove that the Son would have become a plumber. The defence argues that only the average of salaries earned in Quebec should be used to calculate the loss of future earnings.

[488]         The only evidence regarding plumbing as a potential future career comes from the Son’s own evidence. When he was a young teenager, his maternal grandfather contracted to have a small apartment building constructed on a piece of property the grandfather owned. During the construction, the Son had the opportunity to visit the construction site with his maternal grandfather and expressed an interest at that time that the plumbers’ work looked interesting.

[489]         Subsequent to this limited experience, there is no evidence of any further enquiries made by the Son on how to get into the plumbing trade. There is no evidence of anyone else in his immediate family being in any construction trade.

[490]         Furthermore, in view of the early age at which he saw plumbers working, it is likely that he would have been equally, if not more, influenced by other career choices that may have presented themselves during his later teenage years.

[491]         The Court understands the difficulty for the Son seeking to prove evidence of a probable future career on the basis of his life experiences up to the incident when he was only 15 years old. Unfortunately, the limited evidence provided on his behalf does not prove that a plumbing career was a probable one for his future.

[492]         As a result, the Court determines that the Quebec average income is the appropriate basis on which to consider future earnings for the Son.

 

[493]         The Court agrees with the following statement on the law of damages by Madam Justice Lise Matteau of the Superior Court:

Les paramètres applicables

[673] Les paramètres applicables en pareil domaine peuvent se résumer ainsi :

§  Le dommage doit compenser le préjudice subi, sans aller au-delà du préjudice réellement subi (article 1607 et 1611 C.c.Q.);

§  Le dommage doit être certain (article 1611 C.c.Q.);

§  Le principe de la réparation intégrale doit être appliqué en fonction du critère de la raisonnabilité[155];

§  L’article 1608 C.c.Q. prévoit que les demandeurs peuvent cumuler des indemnités, sauf dans la mesure où le tiers est subrogé aux droits du créancier;

§  La Loi sur les services de santé et services sociaux[156], la Loi sur l’assurance maladie[157] de même qu’une multitude de programmes particuliers administrés notamment par la Régie de l’assurance-maladie du Québec prévoient une clause subrogatoire.

[674]  Partant, le Tribunal partage l’avis que l'auteur Me Daniel Gardner émet sur cette question :

« (…)

Dans un tel contexte, nous apparaissent sujettes à caution les décisions qui permettent à la victime d’un préjudice corporel de réclamer aux défendeurs le coût d’un équipement ou d’un service offert par la RAMQ, sous prétexte d’un doute quand à la pérennité du service ou quant aux nombreuses démarches nécessaires pour l’obtenir. Les décisions en sens contraires nous semblent davantage respecter la règle interdisant le cumul. (…) » [158].

 

[494]             These principles will be applied to this case.

[495]             Preliminary to its analysis of the Son’s claim, the Court must determine certain issues for the updated actuarial evidence.

Updated actuarial evidence

 

[496]         When the trial concluded in early December 2013, the actuarial evidence in the file was calculated up to January 1, 2014. 

[497]         The Court is required to render its judgment on the damages evaluated up to the date of the judgment so as to ensure, in the minimum, conformity between the damages actually suffered and the compensation awarded by the Court (GARDNER, note 139 at para 262 and following).

[498]         The Court issued a Judgment dated September 3, 2014 and a Rectified Judgment dated September 19, 2014 to re-open the hearing to permit actuarial calculations that were updated to October 31, 2014.

[499]         By Motion dated October 14, 2014, the Plaintiffs sought re-rectification of the Rectified Judgment as well as the re-opening of the hearing. The claim for the latter relief was abandoned at the hearing of the Motion.

[500]         Judgment on this Motion was rendered on November 4, 2014.

[501]         Amongst other things, that judgment admitted into evidence two Exhibits, P-51 B and P-51 C.

[502]         Exhibit P 51 B consists of updated actuarial calculations to October 31, 2014 but which were modeled using the 2013 IVAC payments with a 2% gross up for 2014.  The defense actuary asserted that these were the proper calculations since this was the appropriate actuarial methodology which placed the actuaries' calculations as if they were being prepared as of the last day of trial in December, 2013, extrapolating forward.

[503]         The Court is mindful to ensure that the Son receives the proper indemnification based on the real damages that he is suffering. Accordingly, it is the actual payments made by IVAC up to October 31, 2014 that should be used and in this regard, the Court relies on exhibit P-51 C.

[504]         Exhibit P-51 C consists of the actuarial calculations also to October 31, 2014 but which were based on the actual payments by IVAC to the Son up to October 31, 2014.  There was no modeling or extrapolation involved.  The Plaintiffs' actuary asserted that these were the appropriate calculations since they were what the son actually received.  She also indicated that, on the contrary, if the calculations in exhibit P-51 B were used, the Son would receive over $100,000 - less - in damages.

Additional Evidence Proposed by the Defence

[505]         At the hearing of the motion, the defense requested to file additional evidence if exhibit P-51 C was admitted into evidence.

[506]         The Court granted this request with the right of response by the Plaintiffs.

[507]         As a Result, the defense by letter dated November 13, 2014, proposed to file an Exhibit P-42 A, which was a Decision from IVAC rendered on February 17, 2014 which decided the actual payment to be made to the Son from February 22, 2014 to December 31, 2014 and discussed a change in the Son's condition.

[508]         In a 6 page letter dated November 14, 2014, Plaintiffs' counsel objected to the production of this Exhibit, amongst other things, because this decision is not final since the Son is seeking a "reconsidération", a review procedure specifically permitted in Ex P-42 A.

[509]         The Court determines that this Exhibit should not be permitted into evidence for the following reasons:

a)            For the determinations that this Court must make, what is relevant from IVAC is solely the amount that it pays to the Son.  These amounts have already been put before the Court in Exhibit P-51 C;

b)            The reasoning of IVAC to review the amount that it awards is not binding on this Court, nor relevant, since the IVAC decision is not res judicata before this Court; and

c)            Furthermore, since this decision is under reconsideration, it is not a final decision.

[510]         Since the Court will not be taking this Exhibit into consideration, there is no requirement for the Plaintiffs to file any additional evidence.

Decision of the Court on Ex. P-51 B and P- 51 C

 

[511]         With due respect to the alternate position, the Court determines that the appropriate calculations are those contained in Exhibit P-51 C. The damages that the Son has suffered in respect of loss of income relate to the amount awarded by the Court minus the mitigation income and whatever the Son receives from IVAC.  The Court recognizes that whether paid by IVAC or the Defendant, the funds will ultimately be paid by the Québec taxpayer.

[512]         The Court is mindful to ensure that the Son receives the proper indemnification based on the real damages that he is suffering. Accordingly, it is the actual payments made by IVAC up to October 31, 2014 that should be used and in this regard, the Court relies on exhibit P-51 C.

Costs for future care

 

[513]         The Son details his claim as follows:

Dépenses pour soins reliés à sa condition, incluant soins à domicile, aide personnelle et domestique, aide technique & aide à la mobilité :

          -Valeur des dépenses passées : 0.00 $

          - Valeur actuarielle des dépenses futures :    315 582.00 $

          - Réserve d’impôt : 110 454.00 $

          - Frais de gestion : 37 870.00 $

          - Total des dépenses passées et futures :      463 906.00 $

 

[514]         He does not claim for past expenses.

Exhibit D-54: joint report on son's additional expenses

 

[515]     A joint report[159] was prepared after each side's expert witnesses had an opportunity to meet and discuss their differences.  This report is dated November 12, 2012 and was prepared by Ms. France Verville, MBA and occupational therapist acting on behalf of the Son and Ms. Monique Martin, occupational therapist and ergonomist acting on behalf of the defence.

[516]     The Court's analysis will proceed on the basis of the various categories of damages considered in this report.

[517]     Help at home: the experts agreed that such help would be required for 17 hours per week up to the time that the Son was 80 years old.  The estimated average cost was $18 per hour [at 2012 rates].

[518]     The Court agrees and this amount is awarded.  It has been included by the actuaries in their calculations.

[519]     Mobility assistance to get around:  both experts agreed that the Son would require - either at age 50 or at age 60, depending on which expert - a wheelchair for assistance in getting around, particularly over longer distances.  They confirmed that the full cost would be totally paid either by IVAC or RAMQ and accordingly no damages are awarded.

[520]     Adapted vehicle:   both experts noted that IVAC paid the amount of $8500 for adapting a motor vehicle to meet the Son's needs.  The Court understood from other evidence that this subsidy was available every 7 years.  The experts agreed that nothing further should be paid for the adapted vehicle if the Son was receiving an amount equivalent to a regular salary, since if the Son had been receiving a regular salary, he would normally have purchased a vehicle for himself.  

[521]     As the Son will receive the equivalent of a regular salary as a result of the damages and other compensation he receives, nothing is awarded under this particular head of damages.

[522]     Adapting his home environment: both experts agreed that the following adaptations should be purchased in view of the Son’s special needs:

a.    a system for automatically locking doors and windows;

b.    adaptations to facilitate access to kitchen cupboards;

c.    adaptations to ensure the autonomy and safety of the Son when he walked, including handrails and special rails in the bathroom;

d.    a bidet  to ensure proper personal hygiene; and

e.    a wheelchair accessible exterior entry.

[523]         The experts estimated that the cost of making these adaptations could vary between $10,000.00 and $20,000.00 but would not require the assistance of an architect.  These estimates were based on figures in November 2012.  The Court is mindful of the Son's evidence that he has had difficulty with IVAC in terms of obtaining certain adaptations he feels are necessary.  In view of the one-time nature of this payment, the Court determines that the sum of $18,000 is reasonable and is awarded. 

[524]         Technical aids: since these are provided by IVAC, the experts do not recommend that any amount should be awarded and the Court agrees.

 

Should his expenses be awarded to 80 years of age or for the rest of the son's life?

 

[525]     In their original joint actuarial report, additional expenses for the Son are calculated from January 1, 2014. The Court took this case under advisement on December 6, 2013. The time for the Court to complete the judgment required that calculations be updated to October 31, 2014. Hence, the calculations to October 31, 2014 as provided in Exhibit P-51 C updated will be used.[160]

[526]     The evidence discloses that additional expenses will be incurred going forward over and above IVAC.

[527]     In their report, the parties’ actuaries have provided the base amount to be received from IVAC for future expenses from November 1, 2014 for the Son’s lifespan.

[528]     The actuaries originally considered two scenarios for the future additional expenses to be incurred by the Son as a result of his permanent injuries. In the original consensus report, the fees based on “la vie durant” are approximately $15,000.00 higher than the expenses up to age 80. The parties' attorneys agreed before the Court on September 12, 2014 that up to age 80 was appropriate.

[529]     The Court also agrees since all equipment and needed expenses will be incurred by them. Hence, the amount awarded for future expenses is $381,179 per Exhibit P-51 C.

[530]     The scenario for additional expenses up to age 80 calculates future additional expenses at $295,659.[161] The Court determines these damages are owed.

 

Gross-up for taxes to pay on interest earned on the investment of the indemnity required to pay additional expenses

 

[531]     The jurisprudence is clear: the Son is entitled to recover as damages an additional amount to cover the income taxes payable on the amount awarded for future expenses. According to the joint actuarial report, this amount is $103, 481.00 and it is awarded.

ANATOMICOPHYSIOLOGICAL DEFICIT

 

[532]     As a result of the Interlocutory Order of Madam Justice Geneviève Marcotte in the present case, three (3) medical experts for the parties met to seek to reconcile their different reports.[162]

[533]     The reconciliation of their reports was a useful exercise since the three experts examined the Son at different times and hence at different points in the evolution of his medical condition over several years.

[534]     The experts were: (a) on behalf of the Plaintiffs: Dr. Suzanne Rousseau, neurologist, and Dr. Gilles-Roger Tremblay, orthopedist and (b) on behalf of the defence: Dr. Normand Moussette, neurologist. The consensus conclusions of the three (3) expert physicians, as excerpted from their combined report, are:

“En conséquence de tous ces déficits, la recombinaison mathématique selon les tables de l'Association médicale américaine donne donc un déficit anatomo-physiologique de 64 %.

Le calcul s'effectue ainsi

n   50 % pour l'atteinte du membre supérieur gauche + 5 % du membre supérieur droit, au combiné donne 53 %.

n   À ce taux combiné de 53 %, nous ajoutons 15 % pour l'atteinte des membres inférieurs comprenant la fonction de locomotion, ce qui donne 60 %.

n   À ce 60 %, nous avons attribué 2 % pour l'atteinte hémi-diaphragmatique, ce qui donne un total de 61 %.

n   À ce 61 %, nous avons attribué 2 % sur la douleur régionale complexe amenant le déficit à 62 %, et finalement le 5 % pour l'ankylose de l'épaule gauche nous permet d'obtenir un total de 64 %, et ce, de façon recombinée.”

 

[535]     All three (3) doctors agreed that a functional evaluation of the Son’s capacities for work needed to be reviewed by an expert in occupational therapy, which was accomplished with the combined report discussed next.

Functional analysis

 

[536]     Opposing experts in different fields, including occupational therapy and adult re-training, met and to a large degree, were able to come to a consensus on certain aspects regarding jobs that the Son could hold, even with his functional limitations. For any of these jobs, the consensus opinion of those experts was that the Son is capable of a 20 hour work week.

[537]     These experts were:

a.     on behalf of the Plaintiffs, Ms Christiane Larivière, adult education specialist and career counselor; and

b.     on behalf of the Defence, Ms Lucie Denoncourt, occupational therapist and Ms. Nathalie Tremblay, occupational therapist and professional rehabilitation consultant.

[538]     Their combined report is dated November 22, 2012.[163]

[539]     Based on this report, the Son is capable of holding part-time employment of 20 hours per week: either as a non-technical sales representative or a clients’ service representative.

[540]     Between the two part-time employments, the evidence proves the clients’ service representative is more probable. Why?

[541]     Firstly, the Son has some limitations on his stamina. The Son was a regular and attentive participant at the eleven-day long hearing. His absences were limited but the Court understood they were due to fatigue as a result of the courtroom process.

[542]     Secondly, the Son shows resilience. The evidence is clear that one important example involved a promise being made by the Mother’s then brother-in-law who owned an auto-parts business. At some point following the incident, this brother-in-law promised the Son that if the Son obtained a DEP in automobile parts sales, he would employ the Son in his business.

[543]     Based on this representation, the Son successfully completed the course but when he went for the job, the mean-spirited brother-in-law revoked the offer with words to the effect of “how did the Son think he could work in such a business when he was handicapped”? This shocking rebuke by a relative by marriage did not prevent the Son - showing considerable initiative - from going back to school and obtaining a second DEP in sales.

[544]        Thirdly, since the incident, the Son has shown initiative, including learning to drive an adapted motor vehicle, and has overcome challenges which are not of his making.

[545]     Fourthly, the Son is well-spoken. As he already holds two (2) DEP in various aspects of sales, the Court believes, on the balance of probabilities, that he is more suited to the occupation of clients’ service representative since:

a.    the job of clients’ sales representative would mean that he would be able to work from an ergonomically adjusted chair answering the phone through the use of a headset;

b.    he would be required to move less and not have to be getting into and out of a vehicle (which would require additional effort and would be more tiring and, in the winter, more dangerous); and

c.    he has already done such work for a couple of months.

[546]        The evidence shows that the Son has the capacity to make a part-time contribution in the workforce. Beginning at the Son’s 18^th birthday, the part-time (20 hours per week) salary for a clients’ service representative ($22,284 annually⁵⁰) should be attributed to him up to the age of 60[164] and the appropriate deductions made from any final damage award for: (a) amounts he has received from IVAC and (b) amounts attributed as mitigation income i.e. the income the Court attributes to the Son that he could have earned in mitigation. From November 1, 2014 onward, figures for (a) and (b) have been calculated by the actuaries.

[547]        According to Exhibit P-51 C, the actualized total award for lost earnings is $379,416.00 as of October 31, 2014. The Court understands the parties agree on this date as the deemed date for these calculations, to avoid further actuarial calculations. This is the total reached by cumulating the average annual salary (18-60 years) minus (a) the deductions for IVAC payments actually received up to and including October 31, 2014 and extrapolated thereafter and, (b) mitigation income revenues.

Management fees: should the Son be awarded them?

 

Governing law

 

[548]        The Defence asserts that the requested management fees to manage any final damage award should not be awarded to the Son.  They cite Professor Gardner for the proposition that Quebec jurisprudence has only awarded such fees where the intellectual capacities of the victim have been diminished by the alleged wrongful conduct.[165]

[549]        In its 2010 decision[166], the Quebec Court of Appeal decided:

“There is no dispute here that a child whose cognitive abilities are adversely affected by the fault of another is entitled to compensation for the cost of professionally managing the lump sum he or she receives by judgment”.

[550]     The Court of Appeal supports this proposition by citing Madam Justice Marie Deschamps in the 2004 Supreme Court of Canada judgment of Townsend v. Kroppmanns.[167]

[551]     The real question is: can such management fees be considered direct and immediate damages pursuant to article 1611 CCQ in the specific case of the Son?

[552]     Professor Gardner cites only one case where an adult male victim - who did not have his intellectual faculties impaired - was nonetheless awarded management fees since he had not completed primary school and hence, was not deemed capable of managing the large sum awarded as damages.[168]

[553]     The starting point for this analysis is the rationale for awarding management fees given by Madam Justice Deschamps, then of the Supreme Court of Canada:

“The purpose of this segment of the award [the management fees] is to ensure that amounts related to future needs are not exhausted prematurely due to the inability of the victims to manage their affairs.  Depending on the needs of the victims, more or less extensive help is required.  The assessment is made on a case by case basis”.[169]

(This Court’s underlining)

[554]     While this statement was made in relation to an intellectually-handicapped victim, this Court determines it is also applicable in other situations where, despite no intellectual handicap, the victim is judged not capable to properly invest the capital being awarded. The governing principle remains “restitution intégrale”: this objective is not accomplished if the victim - by reason of a lack of education or experience in such investment matters - is not in a position to ensure the capital is properly invested to achieve the long-term goal of the damages: be it income replacement, future expenses or both.

[555]     For example, sometimes in the case of a structured damage settlement, the management of the capital is undertaken by professionals.  In such a case, there is no need for the victim to administer the large capital sum necessary to pay out the annual indemnity over a lengthy period. Such a result in the case of a structured damage settlement is consistent with the principle “restitution intégrale”.

Analysis

 

[556]     The Defence in this case cannot have it both ways: argue for a lower level of income replacement since the Son has not proven the likelihood he would have been employed in a skilled trade but at the same time ask the Court to infer the Son is capable of making sophisticated investment decisions

[557]     The Son is a high school graduate with a DEP ("Diplôme d’études professionnelles) in the sale of auto parts and a second DEP in "vente conseil" but has never held a full time job to this point. In addition to his lack of any experience related to investments, there is no evidence that he has any knowledge or interest in investment. On any reasonable consideration, the evidence discloses on the balance of probabilities that the Son requires professional financial management services.[170]

[558]     As in other matters involving personal injury damages, the defence must take this victim as they find him. 

[559]     The jurisprudence has not closed the door to awarding management fees based on specific facts where “the inability of the victim to manage their affairs” is shown. As Professor Gardner says, there is a substantial difference between managing “the average salary of a Quebecer” and managing a portfolio in excess of one-million dollars to ensure that it provides sufficient return to model an annual income of $52,500.00 (minus deductions in this judgment) for the rest of the Son’s deemed working life.

[560]     In one recent case, the management fees awarded out of the damages amount amounted to 26.7% of the damages.[171]

[561]      The Court of Appeal has confirmed that comparing the percentage amount of management fees in different legal proceedings is not a useful guide and that it is better to examine the evidence for those fees in the particular case. [172]

[562]     For past and future pecuniary damages, the Son makes two claims for management fees: $65,687.00 for management fees for the non-pecuniary claim of $830,611 and $48,502.00 for management fees for the alleged actuarial value of future expenses of $404,186.00.

[563]     In their original joint actuarial report[173], the actuarial experts agree that the appropriate manner to calculate management fees is:

a)            5% of the balance arrived at by deducting from the projected future salary (had the incident not occurred), the following two (2) amounts:

                                                                                                          i.    the future indemnities received from IVAC by way of income replacement; and

                                                                                                         ii.    the salary that the Court imputes for mitigation purposes; and

b)            12% of the total amount awarded for future expenses (which is the net amount after taxes).

[564]     As for the alleged future expenses, the amount of $381,179.00 has been granted and for net loss of future income, the amount of $379,416.00 has been awarded. In Ex P-51C, the actuaries calculate management fees to manage loss of revenue for a customer service representative and additional expenses at $80,722.00. This amount is awarded.

[565]     The management fees will be awarded from the date when the damages are to be paid i.e. as of the date of this judgment since this is when management of the relevant amounts is required.[174]

Non pecuniary damages claim

 

Life before the Incident

 

[566]     The Son testified that he lived a fairly unstructured and carefree life of a normal 15-year-old before the incident.  While he was not motivated at school, he had excellent results in his physical education courses.  He had immersion education and was bilingual.

[567]     He was very popular amongst his friends and was very active in sports, including soccer, snowboarding and badminton.

[568]     He enjoyed riding his motor scooter and had a permit since he was able to ride, as of the age of 14.

The incident

 

[569]     He remembers being shot once and then while he was crawling to seek to escape, he was shot a second time in the neck at close range.  He remembers having difficulty breathing and in fact having a sensation that he had a bullet in his mouth.

[570]     In fact, the Son still has one of the bullets in his neck which it was too dangerous to remove surgically.

[571]     He remembers being rescued by the police and the police lifting him up by his arms and his legs.  He remembers being lifted up and put down on the ground four (4) times before he actually reached a final safe destination on a neighbour’s nearby property.  He recalls having great difficulty breathing.

Hospitalization and rehabilitation

 

[572]     When he was at St. Justine Hospital, he remembers seeing his grandfather crying by his bedside in the emergency department.  At the time, the Son was on a respirator.

[573]     He recalls that his Mother visited every day while he was in hospital.

[574]     At first, the doctors said that the Son would always be in a wheelchair.

[575]     The bullets caused damage to his spinal cord.  To aid his recovery and for a period of time, he was put on an inversion table, which while he was lying flat, allowed the table to be tilted so that his feet were higher than his head.

[576]     He was a patient at the hospital for 3 months and then from November 2004 through to April 2005, he was at a rehabilitation center.  After he left the rehabilitation center, his mobility never got any better. However, he was able to walk.

Education subsequent to the incident

 

[577]     While he was at the rehabilitation center, the Son completed his Secondary IV.

[578]     In 2006, he successfully completed the courses necessary to pass his Secondary V.

[579]     From September 2006 to July 2007, he attended adult education courses and successfully obtained a DEP in parts sales and thereafter did a stage with an automobile dealer. He subsequently obtained a second DEP in sales.

[580]     When the Mother's then brother-in-law refused to make good on his earlier offer to hire the Son to work in his auto parts business, the Son went into a depression for approximately 2 years, according to the Mother.

[581]     The Court understands that the Son has never held a full-time job since the incident except during a stage program related to his courses of study. In fact, the Son has never worked part-time since the incident except when he worked in a call center for 20 hours per week from December 2010 to February 2011.

Physio and occupational therapy

 

[582]     Following his rehabilitation, the Son has continued to have physiotherapy and occupational therapy on and off.

[583]     The Court understands that the Son has taken physiotherapy up to twice per week. 

[584]     After leaving the rehab center, the Son went once per week to physiotherapy in St. Jerome.  However, he discontinued this after a time since it took one hour each way to drive there from his residence.

[585]     As noted, he has been left with paralysis down his left side.  When he walks, he drags his left foot and suffers from a medical condition called "drop foot".

Ongoing physical and emotional challenges

 

[586]     Prior to the incident, the Mother testified that the Son never took any medications.  Following the incident, he has been prescribed antidepressants, in part to help him sleep.  Unfortunately, he developed an addiction to this medication.

[587]     According to the Mother, the Son also began to smoke non-prescribed marijuana.

[588]     As a result of the paralysis on his left side, everything must be adapted for the Son so that he can operate using his right side and specifically using his right hand, arm and leg.  Various adaptive equipment was installed by IVAC firstly in his Mother's house when he was living there and now into his own condominium, purchased as of August 15, 2013, to allow him to cope.  IVAC purchased for him the equipment that they feel he needs. The Court understands that such purchases are on a five-year cycle.

[589]     The Son testified that there has been friction between himself and IVAC regarding getting what he feels are necessary adaptations to his environment.

[590]     While he now lives on his own in his own community condominium, his Mother undertakes the following weekly essential tasks: washing, grocery shopping, and housecleaning.  She even assists in matters of his personal hygiene.

[591]     The Son admits he went through a period of approximately two (2) years of rebellion because of his frustration at being so dependent on his Mother.  Given the normal quest for independence of young people, the Court understands how demoralizing this was for the Son.

[592]     The Mother's evidence confirms this.

[593]     In the psychiatric expert report filed on behalf of the Mother dated July 15, 2008, the expert quotes the Mother as follows in regards the Son :

« Madame le décrit comme étant très égocentrique, méprisant avec elle, peu respectueux, peu capable de se responsabiliser. Puisque madame se sent coupable, elle n’ose pas lui mettre des limites et le confronter à son mal fonctionnement ».[175]

[594]     However, in certain areas since the accident, the Son has shown initiative and has overcome challenges which were not of his making.

Life at home

 

[595]     When he turned 18 and became an adult, IVAC no longer provided him with support for home assistance.  He has been living alone in his own condominium since August 15, 2013.  As noted, his Mother continues to assist him greatly, doing tasks that would formerly have been done by an assistant paid for by IVAC such as the washing and housecleaning.  She does this without any remuneration and in solidarity for her Son's situation.  While she testified that she feels very guilty for what happened to her Son, the Court is mindful of the substantial efforts made by the Mother, which were not always appreciated by the Son as much as they are now.

[596]     As a result of his drop foot, the Son testified that he normally has two (2) "good falls»[176] each year.  He trips easily because of his having to drag his left leg and foot.  This risk is enhanced when he is walking downstairs and in icy conditions in the winter.

[597]     He also confirmed that all movement is difficult for him and that his mobility in the winter, because of his lack of balance, is particularly problematic.  He noted he is especially fearful during the winter because he can fall easily. 

[598]     Since one of his lungs is paralyzed, he has no endurance and gets tired very easily.

[599]     He is sensitive to climate change because of the effect the incident has had on his nervous system.  According to his testimony, he often finds the summer too hot and the winters, too cold.

[600]     As a result of the tendency of muscles in his left hand and his left leg to seize up, he is required to take Botox shots.  For example, his left hand has a tendency to curl up and the Botox injections loosen the muscles to prevent this.  He also has Botox injections in the calf of his left leg for the same reason.

[601]     He testified that he gets five (5) Botox shots every three (3) months and that they are very painful but that he will need to get them for the rest of his life.

[602]     The Court observed the Son sitting in court and walking in and out of court during the trial. His paralyzed arm and hand are apparent. He often cradles his paralyzed arm with his functional arm and hand. The wounded demeanour and loss of self esteem for a person with this visible paralysis, is evident.

 

Social life and leisure activities

 

[603]     The Son was an active sportsperson before the incident, playing soccer, badminton and snowboarding.

[604]     He testified that because he no longer has a sense of balance, there is no sport that he can do.  He has tried horseback riding and did not like it.  He did some scuba diving but it was too far to attend.

[605]     Before the incident, he always enjoyed riding his motor scooter and before the Court, indicated his interest in acquiring a motorcycle that would be specially adapted for him to drive.  Such a motorcycle would cost in the order of $19,000.00, he claimed.  No legal authority was provided to justify a separate claim for this amount.

[606]       While such a claim is not acceptable for damages, the Court does appreciate that the Son's inability to participate in an activity such as riding a motor scooter or motorcycle is very frustrating for him.

[607]     The Son testified that his social activities are limited and that one of the principal activities that he can appreciate with friends is going to films.  The Mother testified he also plays cards and board games.  He testified it is not easy for him to develop relationships with members of the opposite sex and that he has no sex life.

[608]     The Son testified that he can only type with one hand but that he is still very interested in computers and can spend up to 5 hours before a computer.  Such a capacity further supports the possibility that he could work in a call center - as he did briefly in the past - as a customer service representative.

[609]     The Son complained that he is lethargic and without motivation.  One of the things that he said sapped his motivation was that he is in a continual battle with IVAC to seek to obtain adapted modifications for his living surroundings.  No representative of IVAC was called to contest this evidence.

[610]     The Son testified that the reality that he is paralyzed for the rest of his life has finally sunk in.  This makes him feel very despondent and causes him to fear for the future.  These feelings are reinforced by the fact that he feels abandoned by the system and in particular by IVAC, while at the same time feeling very dependent on his Mother.

Indexed Andrews’ ceiling and non-pecuniary damages: state of the law

 

[611]     For the Son, actuary Martel using the comparables mentioned earlier from Brière and Villeneuve, uses the DAP determined by orthopedic surgeon Gilles Tremblay of 67% factored in with the 70% of neurologist Dr. Suzanne Rousseau to claim $70 per day for the Son.

[612]     The Andrews $100,000.00 ceiling for non-pecuniary damages:

a.    is a maximum that cannot be exceeded;[177]

b.    this limit is a rule of law;[178] and

c.    in January 2013, the indexed limit for non-pecuniary damages was approximately $310,000.00.[179]  The actuaries provided the additional calculations for the indexed limit :

(a)  to Aug. 27, 2004:  $295,575

(b)  to Aug. 29, 2006:  $312,821

(c)  to Sept. 1, 2010:  $326,496[180]

[613]     In the case of C.P. v. Delisle[181], Madame Justice Geneviève Marcotte (now of the Court of Appeal) granted a compensation of $15.00 per day up to the 84-year life expectancy of the 44 year-old plaintiff, a victim of conjugal violence having been severely punched in the jaw and chest by her spouse. She suffered a triple fracture of the jaw and sternum as well as a concussion and bruising to her chest, face and left arm.

[614]     She underwent initial surgery to have metal pieces inserted in her jaw in August of 2003 and then had three (3) additional surgeries in 2004 up to 2006.

[615]     She continued to suffer from post traumatic stress syndrome and had regular consultations after the date of the incident, August 15, 2003, with both a psychiatrist and a psychologist.

[616]     After each of the surgeries, she was required to feed through a straw and had to be assisted by her mother as regards her daily grooming. She only began to walk normally in 2004. At the time of trial, she continued to have difficulties speaking and eating and had chronic sensitivity in her jaw. She also required further dental treatment.

[617]     As a result of suffering post-traumatic stress syndrome, she was hyper-vigilant and intolerant. The court found she could only return to work after two years.

[618]     The expert psychiatric reports showed that she had less of an interest in her usual activities, was irritable and had difficulties concentrating. However, it also appeared that she was improving.

[619]       In the 2010 Quebec Court of Appeal case of Stations de la Vallée St-Sauveur v. M.A. (hereinafter, “Mont St-Sauveur”), Mr. Justice Nicholas Kasirer was called upon to consider the legal principles established originally by the Supreme Court of Canada in the classic personal injury trilogy of Andrews, Thorton and Arnold.[182]

[620]     In Mont St-Sauveur, the trial judge (who was confirmed on appeal) awarded a global amount - as opposed to a daily amount. The global amount was less than the indexed Andrews limit. This Court prefers that global approach for this young Plaintiff since it ensures an award for non-pecuniary damages that is within the Andrews limit.

[621]     In that case, Mr. Justice Kasirer[183] ruled:

“One of the defining characteristics of non-pecuniary loss is that it is largely measured subjectively, according to the suffering felt by the victim, and the existence of a judicially-created scale would wrongly suggest that the measure can be made objectively. Professor Gardner has rightly observed that "le plafond de 100 000 $ indexé n'est pas une base de calcul mais, simplement, un maximum qu'il ne faut pas dépasser".

[…]Measuring the pain and suffering that a physical injury produces as a non-pecuniary loss involves coming to an understanding of subjective experience of pain and unhappiness that is not transposable from one person to another.”

[622]     Mr. Justice Kasirer emphasized a balanced approach which - while focusing on the victim’s subjective pain and suffering as well as seeking to provide solace to the victim in as much as money can do that - also required there be an objective consideration given to previous cases with similar injuries and awards in those cases. Mr. Justice Kasirer states[184]:

“This balanced method ensures that both the objective and subjective concerns are available to a trial judge called upon to treat like cases alike and unlike cases differently in this fact-driven exercise.  This balanced method advanced by the Supreme Court of Canada allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s own situation”.

 

[623]     The Court draws the following applicable principles from Mr. Justice Kasirer's judgment in the Mont St-Sauveur case:

a.    "The $100,000 indexed cap in Andrews is a limit on the amount of damages but not necessarily the top of some notional scale for pain and suffering… The seriousness of bodily injury is not defined for the purposes of non-pecuniary loss by the cap, which only serves to limit damage awards" (at paragraph 78 of that judgment);

b.    "Measuring the pain and suffering that a physical injury produces as a non-pecuniary loss involves coming to an understanding of subjective experience of pain and unhappiness that is not transposable from one person to another" (at paragraph 79);

c.    Since money cannot compensate for subjectively-felt pain and suffering, the Supreme Court of Canada has focused on monetary awards providing "solace" (at paragraph 80);

d.    Assessability, uniformity and predictability are objectives to be sought so as to create some consistency in non-pecuniary damage awards (at paragraph 81); and

e.    "Comparisons are made to the limited extent of justifying the fairness of outcomes" by ensuring that "similar cases are treated similarly" and the corollary that different cases receive different treatment (at paragraph 82).

 

[624]     The Court determines that the Mont St-Sauveur and Andrews cases provide useful comparisons.  In the former, the young 9-year-old boy suffered severe neurological damage but otherwise was of normal appearance and physical capacity while in the second case, the adult victim was without neurological impairment but was confined to a wheelchair.

[625]     In the former case, an award of 90% of the index limit was confirmed by the Court of Appeal while as we know in Andrews, the full 100% limit was applied.

[626]     The present case has similarities to both of the above cases since the Son, while a youth at the time of the incident, nonetheless has severe paralysis on the left side. While he can still walk, his gait is seriously affected.

[627]     The Court has also analyzed the following three comparable cases which awarded, respectively, (a) 50%, (b) an unknown percentage and (c) 75%, of the indexed Andrews cap.

[628]     In the 2009 Québec Court of Appeal decision of Liberté TM Inc. v. Fortin et al.,[185] a global  DAP 38% was found.  The adult plaintiff suffered brain injury as a result of a fall.  The Court of Appeal confirmed an award for non-pecuniary damages that was about 50% of the Andrews indexed cap.

[629]     In the 2009 British Colombia Supreme Court case of Hodgins v. Street,[186] the court awarded approximately 60% of the indexed Andrews cap where the 16-year-old plaintiff suffered both physical and psychological injuries, including brain damage.  The plaintiff had constant headaches and had emotional and memory problems as well as fatigue. He was not expected to recover further and could only work part-time.  The court found that the emotional and other difficulties arising from the brain injury were permanent and affected many aspects of the plaintiff's life.  The plaintiff also suffered permanent fatigue, hyper-somnolence and dizziness.  The court would have awarded $210,000.00 but took off a $30,000.00 reduction because of the crumbling skull principal.  The judgment does not note the amount of the Andrews indexed cap.

[630]     In the 2013 Superior Court judgment of J.G. v. Nadeau,[187] the victim was a premature baby who suffered from cerebral paralysis.  The court found that the child's pain and suffering were important and that she would live on the margins of normalcy throughout her life.  While she was able to move around within the family house by supporting herself against the walls or on the furniture, in public spaces, she was always required to use four legged cane or a walker.  For long distances, she will be required to use a wheelchair.  She was required to wear orthotic supports both during the day and at night.  As well, she suffered from attention difficulties which left her with an intellectual functioning that was "much less than the average".  On an Andrews’ index of $310,000.00, the court awarded $235,000.00 (approximately 75% of the Andrews indexed cap of $310,000.00).

[631]     The British Columbia Court of Appeal has provided a non-exhaustive list of factors that may be considered in the award of non-pecuniary damages: age of the plaintiff, nature of the injury, severity and duration of pain, disability, emotional suffering, loss or impairment of life, impairment of social relationships, and impairment of lifestyle.[188]

[632]     The great American jurist Oliver Wendell Holmes has described the value of youth in these terms: "Through our great good fortune, in our youth our hearts were touched with fire.  It was given to us to learn at the outset that life is a profound and passionate thing".

[633]     In the present case, not only did the Son not experience this “great good fortune” following the incident but the injuries he suffered have deprived him of the "fire of youth" and deprived him forever of certain enjoyment of life going forward.

[634]     Unlike in the Mont St-Sauveur case, this Court benefits from a full portrait of the Son's "stolen youth" from his age when the incident took place when he was 15 to the age of 24 when the trial occurred.

[635]     The Son has suffered substantial physical pain and will continue to do so in the future.  He lives with the frustration that daily tasks such as opening a bottle he can do one day but then is unable to do them the next.  He has lived almost 9 months of his life attending medical institutions on the way to his present level of recovery.  He will be dependent on his Mother's help and does not have the independence of normal young adults of his age.  He walks with a severely impaired gait and lives in fear of falling.  This fear is compounded for the six winter months in Québec where his likelihood of falling is increased because of the winter walking conditions in our province.  He lives with the physical reality of one of his assailant’s bullets remaining in his neck for the rest of his life.  He sees his existing physical capacities waning and is pessimistic about his future.

[636]     While he has had substantial psychological coaching, there is no evidence that this has done any particular good.  Canada is a country that is learning to integrate more persons who have incurred physical disabilities as a result of their war service overseas.  There have been improvements in the medical understanding and rehabilitation not only of spinal injuries but also of the psychological effects following the infliction of great stress.

[637]     Nonetheless, the evidence does not support any probable conclusion that the Son's life can be easily turned around.  He is a young man with potential and even with his limitations, has an intellectual ability to make a contribution.  The Court understands that the delay in having this legal proceeding resolved has "put the Son's life on hold” for a long period. 

[638]     The joint actuarial report of October 1, 2014 has indicated that the 100% indexed value of the Andrews limit as of August 29, 2006, the date of institution of the action is: $312,821.00.[189]

[639]     After considering carefully the subjective pain and suffering and loss of enjoyment of life experienced and to be experienced by the Son as well as considering comparable but not identical injuries in the cases of Mont St-Sauveur and Andrews, the Court concludes that an appropriate award for non-pecuniary damages for the Son is: $200,000.00. This amount cannot truly compensate the Son for his non-pecuniary damages but it may provide reasonable “solace” by allowing him to purchase amenities that restore some “enjoyment of life”.

INTEREST AND INDEMNITY

 

[640]     The Defence alleges the Plaintiffs’ undue delay in prosecuting this matter.

[641]     The general rule is that interest and additional indemnity are calculated from the date of the initial demand. In this case, there was no demand letter and therefore the potential starting date is August 29, 2006, the agreed date of service of the Introductory Motion. 

[642]     The Court of Appeal has confirmed that a plaintiff has a responsibility to bring their case to hearing within a reasonable period of time and should not benefit from interest and indemnity for undue delay.[190]

[643]     At the same time, the Court of Appeal has also confirmed that, in personal injury cases, interest and indemnity should normally start from the date of notification of the fault, unless there are exceptional circumstances[191].

[644]     The Court of Appeal underscores that one purpose of the award of interest and indemnity is, amongst other purposes, to properly compensate the victim of personal injuries in light of the delays inherent in bringing a case to trial and receiving judgment.[192]Conversely, any undue delay in prosecuting the claim should not receive this additional compensation.

[645]     While article 1618 CCQ provides the Court with the discretion to decide from when interest should start, article 1619 CCQ provides an even broader discretion to determine, in addition to this same discretion as to the starting date, an additional discussion as to whether the indemnity should be awarded at all.[193]

[646]     The trial court must determine whether there are satisfactory reasons to explain any delay: complexity for example.[194] On the other hand, unexplained delay in finalizing the real claim may allow a trial court to decide that interest and indemnity should only run from the date of trial, if it is only at that time that a plaintiff’s claim is truly finalized.[195]

[647]     The defence cites the 2007 Superior Court decision of Dagneau v. Apothico Gest[196]. In that case, the trial judge ordered that interest and indemnity begin to run from the date chosen in the actuarial reports. Other than this practical reason, there is no other reason provided to justify the change from the usual practice that interest and indemnity starts from the date of service of the original demand letter (or, as in the present case), the Introductory Motion.

[648]     The Court has also reviewed the Plumitif in this file. The original action was filed on August 29, 2006. Counsel for the Plaintiffs did not file their Inscription until April 28, 2011. In the interim, Plaintiffs' counsel made 8 motions to prolong delays and the defence made 1 such motion dated May 25, 2011.

[649]     The Declaration of Settlement with the City was filed on May 30, 2008.  In the normal course of events, the Plaintiffs would have received the settlement funds at that time. At trial, the Plaintiffs did not provide any explanation as to why it took so long to get this case set down for trial, neither did they provide any factual basis or argument that the delay was due to the complexity of liability or quantum. It must be remembered that the Plaintiffs only produced one expert on liability. The awarding of interest and indemnity should also encourage the timely prosecution of litigation by plaintiffs since, particularly when the testimony of witnesses is critical to the case, as here, undue delay in getting to trial dulls witnesses’ memories and is not in the interests of justice.

[650]     The defence should not be penalized for this delay. From the agreed date of service of the original action on August 29, 2006 to the date of judgment in September 2014, the interval is approximately eight (8) years. The Court arbitrates that a reasonable delay, in all the circumstances of this case, to be heard at trial is closer to four (4) years. Accordingly, the Court will award interest and indemnity from August 29, 2006 to and including August 30, 2010, since the latter date is a reasonable one for final judgment. Hence, interest and indemnity should not be calculated during the interval period: September 1, 2010 to the date of judgment because of Plaintiffs’ delay, but should be calculated from the date of judgment to the date of final payment.

COSTS

 

Expert fees for plaintiffs' expert in criminology

 

 

[651]      By way of fees, the Plaintiff's expert, Mr. Roch Tremblay filed an itemized account for a total of $15,640[197] for both the preparation and filing of his expert’s report as well as his attendance throughout 11 days of hearing at an hourly rate of $150.

[652]     The Court determines that certain aspects of Mr. Tremblay's report were useful, including his explanation of those aspects in court. However, the Court cannot find that his attendance at most days of trial was useful for his ultimate testimony. 

[653]     Accordingly, the Court will allow the following amounts in regard to this expert:

a.    12 hours of preparation for the hearing: $1800;

b.    interviews with Ms. Lanteigne and the Mother for 6 1/2 hours as well as transportation:$975.00 plus $96.00 for transportation costs;

c.    attendance at five (5) days of hearing (eight (8) hours per day), including attendance to hear the Probation Officer, Ms. Bastien and the opposing expert from the defence: $6000.00 plus $672 for four (4) nights in a hotel and $375 for five (5) days of meals and incidentals ($75.00 per day): total $7, 049.00

[654]     The total of these amounts is $9, 918.00 and this will be awarded to the Son. 

Other experts’ fees for plaintiffs

 

[655]     Since their expert services were useful to the Court in determining its judgment, the following Plaintiffs’ experts are entitled to their fee accounts, as filed in evidence:

a.    Ms. Christiane Larivière, adult education specialist : $1,888.00 (Exhibit P- 52A);

b.    Dr. Suzanne Rousseau, neurologist : $500.00 (Exhibit P-52B);

c.    Ms. France Verville, occupational therapist : $7,969.89 (Exhibit P-52C);

d.    Ms. Carolyn Martel, actuary: (a) $10,619.19 (Exhibit P-52D) and (b) $1724.6 (Exhibit P-52B) for the work required as a result of the re-opened hearing. The total of (a) and (b) is: $12,343.82.

Mother and the defence to pay their own costs

 

[656]     While the Mother was successful in proving liability, the Court determined that the lifelong monthly compensation she received from IVAC sufficiently indemnified her for the non-pecuniary damages to which she was entitled.

[657]     In these circumstances, and particularly given the public protection dimension of this matter, the Court uses its discretion to order, as between the Mother and the PGQ, that each side pay their own costs.

CONCLUSIONS

 

FOR THESE REASONS, THE COURT:

[658]     DECLARES that the Son’s damages are due to the fault of the Attorney General for 30% and the fault of the offender for 70%;

[659]     ORDERS the Defendant to pay to the Plaintiff Steven L’Écuyer the amount of $379,416.00 for loss of income from his 18^th birthday to his 60^th birthday, and ORDERS that interest and additional indemnity be paid on this amount (a) from August 29, 2006 to August 30, 2010 and (b) from the date of judgment, October 31, 2014 up until the date of payment;

[660]     ORDERS the Defendant to pay to the Plaintiff Steven L’Écuyer the amount of $381,179.00 for additional expenses from November 1, 2014 and the amount of $133,413.00 for the gross-up amount for income tax payable thereon and ORDERS that these amounts be paid as of the date of this judgment with interest and  additional indemnity from the date of judgment up to the date of payment;

[661]     ORDERS the Defendant to pay to the Plaintiff Steven L’Écuyer management fees in the amount of: $80,722 with interest and indemnity from the date of judgment up until the date of payment;

[662]     ORDERS the Defendant to pay to the Plaintiff Steven L’Écuyer the total of $18,000.00[198] for additional expenses to adapt the Son’s living environment, with interest and legal indemnity from the date of judgment;

[663]     ORDERS the amount of $200,000.00 for non-pecuniary damages be paid by the Defendant to the Plaintiff Steven L’Écuyer with interest and additional indemnity from: (a) the date of the incident, August 27, 2004 up to and including August 30, 2010, and (b) from the date of judgment, October 31, 2014 up to the date of payment;

[664]     ORDERS  that the Defendant pay to the Plaintiff Steven L’Écuyer the adjudged costs for expert Mr. Roch Tremblay of $9,918.00;

[665]     ORDERS that the Defendant pay to the Plaintiff Steven L’Écuyer the adjudged costs for the following experts:

a.    Ms. Christiane Larivière, adult education specialist: $1,888.00;

b.    Dr. Suzanne Rousseau, neurologist : $500.00;

c.    Ms. France Verville, occupational therapist : $7,969.89;

d.    Ms. Carolyn Martel, actuary: $12,343.82.

 

[666]     WITH COSTS in favor of Steven L’Écuyer against the PGQ;

[667]     As between Guylaine L’Écuyer and the PGQ, ORDERS that EACH PARTY PAY THEIR OWN COSTS including experts’ fees.

 

		__________________________________ Mark G. Peacock, J.S.C.
Me. Jean Bernier
Me. Jean-François L'archevêque Montpetit
Attorneys for the Plaintiffs
Me. Denise Robillard Me. Thi Hong Lien Trinh
DIRECTION GÉNÉRALE DES AFFAIRES JURIDIQUES ET LÉGISLATIVES.
Attorneys for the Defendant
Dates of hearing :	From November 12, 2013 to November 29, 2013 and from December 2, 2013 to December 6, 2013