Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand, [1996] 3 S.C.R. 211

The Syndicat national des employés de

l’hôpital St‑Ferdinand (C.S.N.), the

Fédération des affaires sociales (C.S.N.)

and the Confederation of National Trade Unions (C.N.T.U.) Appellants

v.

The Public Curator, Rémi Lussier, and the

Public Curator in the person of

Nicole Fontaine, in her capacity as

curator ex officio of Honorine Abel Respondents

and

The Attorney General of Quebec Mis en cause

Indexed as: Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St‑Ferdinand

File No.: 24511.

1996: May 2; 1996: October 3.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for quebec

Evidence ‑‑ Class action ‑‑ Applicable rules of evidence ‑‑ Proof by presumptions of fact ‑‑ Whether Code of Civil Procedure provisions relating to class actions have changed rules of evidence applicable in civil matters.

Damages ‑‑ Moral prejudice ‑‑ Evaluation ‑‑ Role of functional approach in evaluating moral prejudice in Quebec civil law ‑‑ Method of calculating moral damages.

Civil rights ‑‑ Personal inviolability ‑‑ Illegal strikes by employees of hospital for mentally disabled ‑‑ Trial judge concluding that patients suffered prejudice in form of temporary discomfort ‑‑ Whether there was interference with their right to personal inviolability ‑‑ Meaning of “inviolability” ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 1.

Civil rights ‑‑ Personal dignity ‑‑ Illegal strikes by employees of hospital for mentally disabled ‑‑ Trial judge concluding that patients suffered prejudice in form of temporary discomfort ‑‑ Whether there was interference with their right to personal dignity ‑‑ Meaning of “dignity” ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 4.

Civil rights ‑‑ Personal dignity ‑‑ Remedy ‑‑ Exemplary damages ‑‑ Illegal strikes by employees of hospital for mentally disabled ‑‑ Trial judge concluding that patients suffered prejudice in form of temporary discomfort ‑‑ Interference with patients’ dignity ‑‑ Whether exemplary damages should be awarded ‑‑ Meaning of “unlawful and intentional interference” ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 4, 49.

The unionized employees of a hospital for the mentally disabled participated in illegal strikes. The Public Curator, acting on behalf of the patients in the hospital during the strikes, instituted a class action against the appellants. The trial judge concluded that the appellants had committed a civil fault by provoking, inciting or participating in the illegal strikes and that the patients had suffered prejudice. After an exhaustive review of the evidence, the judge concluded that the representative of the group covered by the class action had the necessary capacity to suffer moral prejudice and that she had suffered discomfort. With respect to the other members of the group, the judge noted that the evidence established that they had suffered substantially the same prejudice as the group’s representative. The judge condemned the appellants to pay $1,750, as compensatory damages, to each member of the group covered by the class action, with the exception of the patients in the transit unit and the medical‑surgical unit. He declined, however, to award exemplary damages under the second paragraph of s. 49 of the Charter of Human Rights and Freedoms since, in his view, the nature of the prejudice did not make this remedy available. The Court of Appeal affirmed the trial judge’s decision with respect to compensatory damages. However, it ordered the appellants, jointly and severally, to pay $200,000 to the patients as exemplary damages. The majority of the court concluded that the appellants had unlawfully interfered with the rights to inviolability and dignity guaranteed to the patients by ss. 1 and 4 of the Charter and that this interference had been intentional within the meaning of the second paragraph of s. 49.

Held: The appeal should be dismissed.

(1) Rules of evidence in class actions

The provisions of Book Nine of the Code of Civil Procedure relating to class actions have not changed the rules of evidence in civil matters in Quebec. Like the other rules of evidence, proof by presumptions of fact, provided they are sufficiently serious, precise and concordant, is therefore applicable to this type of action. Moreover, art. 1241 C.C.L.C. does not change the rules of evidence in relation to class actions. This provision deals only with the consequence of the judgment on a class action in terms of the presumption of res judicata.

In this case, it cannot be concluded that the trial judge relied on the statutory provisions applicable to class actions to create a legal presumption of similarity in assessing the moral prejudice suffered by the patients. Rather, he sought to find an element of damage common to everyone, and only after reviewing the evidence as a whole did he find enough evidence to be able to infer that there were serious, precise and concordant presumptions that all the patients had at least suffered discomfort. Besides relying on presumptions of fact, he also took into account the evidence as a whole, including the testimony, inter alia that of expert witnesses, in reaching the conclusion that all the elements of civil liability (fault, prejudice and causal connection) had been established on the balance of probabilities. Since the trial judge committed no error of law and no error in the conclusions he drew from the evidence, the Court of Appeal was correct not to intervene.

(2) Moral prejudice

Quebec civil law supports the conception that the right to compensation for moral prejudice is not conditional on the victim’s ability to profit or benefit from monetary compensation. This objective characterization of moral prejudice is more consistent with the fundamental principles of civil liability than the subjective conception. In Quebec, the primary function of the rules of civil liability is to compensate for prejudice. This objective requires that there be compensation for the loss suffered because of the wrongful conduct, regardless of whether the victim is capable of enjoying the substitute pleasures. In order to characterize the nature of the moral prejudice for purposes of compensation, the purely subjective conception thus has no place in the civil law, since the reason that damages may be recovered is not because the victim may benefit from them, but rather because of the very fact that there is a moral prejudice. The victim’s condition or capacity to perceive are irrelevant in relation to the right to compensation for the moral prejudice.

With respect to the evaluation of the moral prejudice, although the functional approach does not apply in Quebec civil law to the determination of the right to moral damages, it is nonetheless relevant, together with the conceptual and personal approaches, when it comes to the calculation of such damages. In Quebec civil law, these three approaches to calculating the amount necessary to compensate for moral prejudice apply jointly and thereby encourage a personalized evaluation of the moral prejudice. With respect to the calculation of compensation, the trial judge’s decision was sound. He took into account a panoply of factors that included all of the conceptual, personal and functional approaches, and the quantum of the moral damages he awarded was the result of a meticulous examination of the evidence. Since the appellants did not demonstrate any error in this regard, the Court of Appeal rightly declined to intervene to vary the trial judgment with respect to this head of damages.

(3) Exemplary damages

The prejudice in the nature of temporary discomfort suffered by the hospital’s patients, which the trial judge characterized as “minor psychological distress”, does not amount to interference with the right to personal inviolability guaranteed by s. 1 of the Charter. The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold. The interference must affect the victim’s physical, psychological or emotional equilibrium in something more than a fleeting manner. The evidence does not establish in this case that the patients suffered any permanent prejudice giving rise to psychological or medical sequelae.

Although the discomfort suffered by the patients was transient, however, it constituted interference with the safeguard of their dignity, despite the fact that these patients might have had no sense of modesty. The right to the safeguard of personal dignity guaranteed in s. 4 of the Charter addresses interferences with the fundamental attributes of a human being which violate the respect to which every person is entitled. The right to personal dignity, unlike the concept of inviolability, does not require that there be permanent consequences in order for interference with that right to be found. In considering the situation of the mentally disabled, the nature of the care that is normally provided to them is of fundamental importance. The low level of awareness that some patients had of their environment may undoubtedly influence their own conception of dignity, but when dealing with a document such as the Charter, it is more important that we turn our attention to an objective appreciation of dignity and what that requires in terms of the necessary care and services. The numerous and varying inconveniences engendered by the illegal strikes not only constituted a moral prejudice under the general rules of civil liability, but also interfered with the right guaranteed by s. 4 of the Charter.

The second paragraph of s. 49 of the Charter provides that in case of unlawful and intentional interference with a right recognized by the Charter, a tribunal may condemn the person guilty of it to exemplary damages. There is unlawful interference with a right protected by the Charter where the infringement of that right results from wrongful conduct. A person’s conduct will be characterized as wrongful if he or she violates a standard of conduct considered reasonable in the circumstances under the general law or, in the case of certain protected rights, a standard set out in the Charter itself. For unlawful interference to be characterized as intentional, the result of the wrongful conduct must be desired. There is thus unlawful and intentional interference within the meaning of the second paragraph of s. 49 when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. In addition to being consistent with the wording of s. 49, this interpretation of the concept of “unlawful and intentional interference” is in keeping with the preventive and deterrent role of exemplary damages, which suggests that only conduct the consequences of which were either intended or known by the person who committed the unlawful interference, and which therefore could have been avoided, should be punished by an award of such damages. In this case, the Court of Appeal was correct in concluding that the interference with the right to personal dignity was “unlawful” since the prejudice suffered by the patients was caused by conduct in the nature of a fault within the meaning of art. 1053 C.C.L.C., and “intentional” because those responsible for it intended the consequences of the fault they committed. The appellants backed the illegal strikes and, apparently, on the evidence as a whole, orchestrated and incited them. The pressure that the appellants wanted to bring to bear on the employer inevitably involved disrupting the services and care normally provided to the hospital’s patients, and necessarily involved intentional interference with their dignity.

Even where unlawful and intentional interference exists, the award and the quantum of exemplary damages remain discretionary. However, this discretion is not absolute. It is guided by various factors that have been developed by the courts and are now codified in art. 1621 C.C.Q. In this case, the Court of Appeal’s decision to award exemplary damages is consistent with the established criteria. With respect to the calculation of the appropriate amount, since the Court of Appeal committed no error of principle, the quantum of the joint and several award of exemplary damages must be upheld. The punitive and deterrent function of exemplary damages does not prevent the appellants from being condemned jointly and severally to pay them.

Cases Cited

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Statutes and Regulations Cited

Act respecting health services and social services, R.S.Q., c. S‑4.2.

Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 1.

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, preamble, ss. 1 [repl. 1982, c. 61, s. 1], 4, 49.

Civil Code of Lower Canada, arts. 1053, 1056c [ad. 1956‑57, c. 16, s. 1; am. 1971, c. 85, s. 10; am. 1987, c. 98, s. 1], 1117, 1203, 1204, 1205, 1238, 1241 [am. 1978, c. 8, s. 47].

Civil Code of Québec, S.Q. 1991, c. 64, arts. 1457, 1474, 1621, 2803, 2811, 2846, 2848, 2849, 2860.

Code of Civil Procedure, R.S.Q., c. C‑25, arts. 46, 168(7), 1022, 1031, 1045.

Public Curatorship Act, R.S.Q., c. C‑80 [repl. 1989, c. 54, s. 198 (now R.S.Q., c. C‑81)].

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).

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APPEAL from a judgment of the Quebec Court of Appeal, 1994 6112 (QC CA), [1994] R.J.Q. 2761, 66 Q.A.C. 1, dismissing the appeal and allowing in part the cross‑appeal from a judgment of the Superior Court, [1990] R.J.Q. 359. Appeal dismissed.

Clément Groleau and Thierry Bériault, for the appellants.

Denis Sauvé and Pierre Deschamps, for the respondents.

The judgment of the Court was delivered by

Introduction

1. L’Heureux‑Dubé J. ‑‑ This appeal raises a number of questions concerning the recovery of damages in respect of delictual liability in Quebec, in the context of a class action. More precisely, the issues are (1) what rules of evidence apply to the class action scheme instituted under Book Nine of the Code of Civil Procedure, R.S.Q., c. C‑25 ("C.C.P."), (2) what role the functional approach plays in evaluating moral prejudice in Quebec civil law, and (3) what is meant by the expressions "inviolability""dignity" and "intentional interference", as they appear in the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (the "Charter"), for the purposes of the exemplary damages contemplated by the Charter.

2. As a preliminary matter, I shall reproduce the relevant statutory provisions and review the facts and judgments.

I. Applicable Statutory Provisions

Applicable Statutory Provisions

3. The provisions that are relevant to the question of the rules of evidence that apply to class actions are, first, arts. 1205, 1238 and 1241 of the Civil Code of Lower Canada ("C.C.L.C."), which provide:

4. Proof may be made by writings, by testimony, by presumptions, by the confession of the party or by his oath, according to the rules declared in this chapter and in the manner provided in the Code of Civil Procedure.

5. Presumptions are either established by law or arise from facts which are left to the discretion of the courts.

6. The authority of a final judgment (res judicata) is a presumption juris et de jure; it applies only to that which has been the object of the judgment, and when the demand is founded on the same cause, is between the same parties acting in the same qualities, and is for the same thing as in the action adjudged upon.

In the case of a class action provided for by Book Nine of the Code of Civil Procedure, the judgment deciding questions of law or of fact dealt with collectively has authority as res judicata between the parties and all members of the group who have not requested exclusion from the group.

These provisions must be analysed in the light of arts. 1031 and 1045 C.C.P., in the section on class actions, which read as follows:

1031. The court orders collective recovery if the evidence produced enables the establishment with sufficient accuracy of the total amount of the claims of the members; it then determines the amount owed by the debtor even if the identity of each of the members or the exact amount of their claims is not established.

1032. The court may, at any stage of the proceedings in a class action, prescribe measures designed to hasten their progress and to simplify the proof, if they do not prejudice a party or the members; it may also order the publication of a notice to the members when it considers it necessary for the preservation of their rights.

1033. The issue of exemplary damages brings in ss. 1, 4 and 49 of the Charter, which read as follows:

1034. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

4. Every person has a right to the safeguard of his dignity, honour and reputation.

5. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

II. Factual Background

Factual Background

5. The events that gave rise to this class action occurred in October and November 1984. The Hôpital St‑Julien (the "Hospital"), a hospital centre for the mentally disabled located in the village of St‑Ferdinand d’Halifax, employed 700 unionized persons who were members of the appellant Syndicat national des employés de l’hôpital St‑Ferdinand (the "Union"), which is affiliated with the Confederation of National Trade Unions ("CNTU") and the Fédération des affaires sociales ("FAS"). As a way of putting pressure on their employer to prevent it from proceeding with a staff reorganization, the Hospital employees participated in illegal strikes which lasted a total of 33 days.

6. As a result of these walkouts, the 703 patients in the Hospital were deprived of certain care and services normally provided by the employees. The patients were divided into 20 care units, including nursing units, psycho‑geriatric units, a transit unit and a medical‑surgical unit. About 650 of them were represented by the Public Curator, in the exercise of his duties under the Public Curatorship Act, R.S.Q., c. C‑80.

7. On January 10, 1986, the Public Curator, in his capacity as the trustee of Honorine Abel, one of the patients in the Hospital at the time of the strikes, was authorized by the Superior Court to institute a class action against the Union on behalf of all the patients of the Hospital, for [translation] "all natural persons and/or patients and/or chronically ill persons registered or admitted as patients on October 10, 11, 12, 13 and 14, 1984, and from October 15 to November 15, 1984, at the centre hospitalier St‑Julien". Proceedings were brought against the appellants CNTU and FAS because of their participation in and incitement of the illegal work stoppages.

8. The relief claimed specified that the respondent was seeking $300 per day as compensatory damages for each of the 703 patients, which damages were caused by the loss of access to the care and services normally provided, this being an interference with their right to security, inviolability and dignity (for a total of $6,959,700). In addition, the respondent claimed $150 per day for each patient as exemplary damages under the second paragraph of s. 49 of the Charter, contending that the interference with their rights was unlawful and intentional within the meaning of that paragraph (for a total of $3,479,850).

III. Judgments

Superior Court

Judgments

9. Lesage J. of the Superior Court of Quebec, District of Frontenac, disposed of all the interlocutory motions from the time the claim was commenced. On February 26, 1987, he allowed a motion for particulars in part (art. 168(7) C.C.P.), but denied the portion of the application relating to the health of the patients, as noted in their medical records. On August 5, 1987, the Quebec Court of Appeal dismissed the appeal brought by the appellants from that decision, and on January 25, 1988 this Court dismissed the application for leave to appeal, [1988] 1 S.C.R. xiv. On June 17, 1988, the trial judge made an order striking out allegation 24 from the defences, which had relied on art. 1022 C.C.P. in seeking to have the judgment authorizing the instituting of the class action set aside.

10. By final judgment dated December 6, 1989, [1990] R.J.Q. 359, Lesage J. allowed the respondent’s action in part. He dealt first with the appellants’ objection under art. 1022 C.C.P., which he rejected. He then examined the evidence relating to the fault committed by the appellants. He concluded that the appellants had committed a civil fault by provoking, participating in or inciting the events of October and November 1984. These two aspects of the trial judgment were not challenged in this Court; the sole question in respect of the appellants’ civil liability relates to the prejudice.

11. The evidence establishing that the patients of the Hospital suffered prejudice as a result of the work stoppages included, inter alia, the testimony of the people who replaced the striking employees and of expert witnesses. Because of their mental disabilities, none of the patients was able to testify. The evidence before the trial judge related mainly to the care usually provided at the Hospital in comparison to the care received during the illegal strikes.

12. After an exhaustive review of the evidence, the judge concluded, first, that the representative, Honorine Abel, had the necessary capacity to suffer moral prejudice, and second, that she did in fact suffer not insecurity, but discomfort, that is, [translation] "a feeling perceived by an individual who is subjected to conditions that interfere with his or her physical or psychological welfare" (p. 390).

13. With respect to the other members of the group covered by the class action, the judge commented, first, that in class actions the evidence must be analysed in order to determine whether all the members had suffered substantially the same prejudice as the representative. In his view, although the evidence was insufficient to show that the disruption of the care and services caused serious psychological trauma to the patients, it nonetheless established that there was discomfort, including frustration, which the judge characterized as minor psychological distress. However, he excluded patients who were admitted to the transition unit and the medical‑surgical unit from the class.

14. Lastly, the trial judge declined to award exemplary damages under the Charter since in his view that remedy was not available, having regard to the nature of the prejudice. In addition, he found that personal security, a right that is protected by s. 1 of the Charter, had not been violated in this instance since the security involves a physical, and not a moral, dimension. Moreover, he found that the patients suffered no interference with their dignity, within the meaning of s. 4 of the Charter, since in his eyes the mentally disabled persons in question had no sense of modesty.

15. The judge allowed the respondent’s action in part and condemned the appellants, jointly and severally, to pay the sum of $1,750 as compensatory damages to each member of the group covered by the class action, with the exception of the patients in the transit unit and the medical‑surgical unit.

Court of Appeal (Nichols, Tourigny and Fish JJ.A.)

Court of Appeal

16. The appellants appealed that judgment and the respondent filed a cross‑appeal. The appellants’ main argument was that the Superior Court had erred in declining to review the judgment authorizing the instituting of the class action (a question not before this Court), in wrongly applying the rules of evidence relating to prejudice and in awarding excessive damages, having regard to the evidence presented. In his cross‑appeal, the respondent challenged the dismissal of the claim as it related to the members of the group admitted to the transit unit and the medical‑surgical unit (a question also not before this Court) and the refusal to award exemplary damages under the Charter.

17. On March 1, 1990, the Court of Appeal dismissed the appellants’ application to join the Attorney General of Quebec in order to challenge the constitutionality of the provisions of the Code of Civil Procedure concerning the class action procedure.

18. On the merits, in a judgment rendered on October 17, 1994, 1994 6112 (QC CA), [1994] R.J.Q. 2761, the Court of Appeal dismissed the main appeal and, by a majority, allowed the cross‑appeal relating to exemplary damages.

19. The appellants argued, first, that the trial judge, relying on the provisions that apply to class actions, changed the rules of evidence in order to evaluate the prejudice suffered, in that, in their view, he created a legal presumption of similarity of prejudice for the benefit of the members of the group. The court rejected that argument and stated rather that the trial judge had used the mechanism of the presumption of fact, a method of proof permitted in a civil action.

20. Furthermore, the majority of the court was of the opinion that the provisions relating specifically to class actions had not changed the rules of evidence, and therefore that they applied to such an action in the same manner as in any civil action. Nichols J.A., who was in the minority on this point, found that the rules of evidence in class actions differ substantially from the rules that are ordinarily applicable. The source of that change, in his view, may be found in art. 1241 C.C.L.C., which provides that questions of law and of fact may be dealt with collectively for the purposes of class actions. According to his approach, once prejudice to the members of the group is established with certainty, it is not necessary to rely on sufficiently serious, precise and concordant presumptions in order to reach the result at which the trial judge arrived.

21. With respect to the assessment of the evidence, the court dismissed the argument that the testimony of the patients themselves was essential to establish the existence of the moral prejudice of discomfort. The court was of the opinion that there was more than sufficient evidence to establish that all of the patients of the Hospital were deprived of the care and services made necessary by their particular situation, which constitutes a prejudice which is foreseeable and certain.

22. Second, the appellants argued that the amounts awarded as compensation by the trial judge were excessive since, for one thing, the patients of the Hospital were never aware of the work stoppage, and for another, the compensation would serve no purpose in that the patients are incapable of taking any satisfaction from that compensation. The court noted, first, that the trial judge had properly assessed the evidence in that the inconvenience experienced by the patients left no permanent sequelae, their prejudice being strictly non‑pecuniary, that is, moral, in nature.

23. On the question of the evaluation of the moral prejudice, the court rejected the approach suggested which, in its view, was based on what is called the functional approach, a common law concept incompatible with the fundamental principles of the civil law. The court was of the opinion that, in civil law, compensation is owed not to secure substitute pleasures for the victim, but rather to make up for the objective loss suffered by the victim.

24. In terms of the calculation of moral damages, the court found that the trial judge did not err in law and that, while the amount of the compensation awarded was high, it was not patently disproportionate or unreasonable. Thus, the Court of Appeal upheld the quantum of compensatory damages as determined at trial.

25. Next, addressing the cross‑appeal, which related to the exemplary damages contemplated in the second paragraph of s. 49 of the Charter, the court was of the opinion that the trial judge erred in interpreting the relevant provisions of the Charter. First, the court noted that on reading the reasons of the trial judge, his refusal to award exemplary damages was not an exercise of his discretion; rather, his refusal resulted from an error of law in that the trial judge was of the opinion that the exemplary remedy was not available, having regard to the nature of the prejudice. The majority of the Court of Appeal, for its part, held that the disruption of the care and services that were necessary to the patients constituted interference with the rights to inviolability and dignity guaranteed to them by ss. 1 and 4 of the Charter. Tourigny J.A. dissented, not on the principle in issue, but on the question of whether there had been interference with a right guaranteed by the Charter in the circumstances of the case.

26. With respect to the intentional nature of the interference with a protected right, under the provisions of the second paragraph of s. 49 of the Charter, the majority of the Court of Appeal first examined that Court’s own decisions on this point and also the case law of the common law provinces and of the United States. The majority was of the opinion that [translation] "[i]n order for the interference to be intentional, it must have been committed in circumstances that indicate a determined intent to cause the damage resulting from the violation. The conduct of the person who commits the prejudicial act must have been wilful, knowing and deliberate" (p. 2804). In this instance, the appellants allegedly engaged in malicious conduct, exhibited [translation] "knowing indifference" and adopted an attitude absolutely contrary to the ordinary standards of morality and decency. In the opinion of Tourigny J.A., even were it to be admitted that there had been interference with a protected right, that interference did not have the intentional character required by the second paragraph of s. 49 of the Charter.

27. Having concluded that the interference with the protected rights of the Hospital’s patients was intentional, the court, by a majority, allowed the cross‑appeal and ordered the appellants, jointly and severally, to pay the sum of $200,000 to the patients of the Hospital as exemplary damages.

IV. Analysis

Analysis

28. This case raises important questions which must be analysed in the specific context of the Quebec civil law system, as Beetz J. noted in Rubis v. Gray Rocks Inn Ltd., 1982 17 (SCC), [1982] 1 S.C.R. 452, at p. 468, a case which also dealt with the principles of civil liability. As I mentioned at the outset, these questions relate to (1) the rules of evidence that apply to class actions, (2) the evaluation of moral prejudice, and (3) the awarding of exemplary damages under the Charter.

A. Rules of Evidence in Class Actions

Rules of Evidence in Class Actions

29. The appellants contend that, although the legislator did not change the ordinary rules of evidence in adopting the chapter relating to class actions, under the statutory provisions that apply to class actions there can be no reliance on, inter alia, a presumption of similarity with respect to the prejudice suffered by the patients. They further argue that the evidence, and, in particular, the proof by presumptions of fact on which they suggest the trial judge based his findings, does not establish that the patients of the Hospital experienced the prejudice of discomfort.

30. Although the appellants’ objection relates primarily to proof by presumptions, it indirectly raises the issue of the application of the general rules of civil evidence to class actions; I will dispose of this issue first, and then discuss proof by presumptions as well as the assessment of the evidence in the case at bar.

(1) Rules of Evidence and Class Actions

31. The basic principle of evidence in civil matters is that the party who wishes to exercise a right has the burden of proving the facts which support his or her claim: art. 1203 C.C.L.C. (then in force (now art. 2803 of the Civil Code of Québec, S.Q. 1991, c. 64 ("C.C.Q."))) provides that "[t]he party who claims the performance of an obligation must prove it". In an action in civil liability such as the case at bar, the plaintiff must prove a fault, a prejudice and a causal connection, on the balance of probabilities. A plaintiff may use several methods of proof, which are listed in art. 1205 C.C.L.C.: writings, testimony, presumptions and confessions. (The Civil Code of Québec reiterates these methods in art. 2811 and adds proof by production of material things.)

32. These general rules of evidence are applicable to any civil law action in Quebec and to actions under statutory law of a civil nature, unless otherwise provided or indicated. There is no indication in the Code of Civil Procedure that the ordinary rules of civil proof do not apply to class actions. On the other hand, by their very nature, class actions invite procedural rules that are unique to such actions. These rules are set out in Book Nine of the Code of Civil Procedure, entitled "Class Action". Those provisions certainly do not create new rules of evidence; rather, they adapt to class actions the methods by which a right, which previously could be claimed only by each person entitled to it, may be exercised (see D. Ferland and B. Emery, Précis de procédure civile du Québec (2nd ed. 1994), vol. 2, at p. 644; and M. Beaumier"Le recours collectif au Québec et aux États‑Unis" (1987), 18 R.G.D. 775, at p. 781).

33. Thus, in the context of an action in civil liability brought in the form of a class action, the elements of fault, prejudice and causal connection must be established in respect of the members of the group, by the normal evidentiary rules (see J.‑C. Royer, La preuve civile (2nd ed. 1995), at p. 514).

34. For his part, Nichols J.A. suggested that the rules of evidence in respect of class actions had been changed in that, in his view, the second paragraph of art. 1241 C.C.L.C. created an exceptional method of proof which was not contemplated by the traditional civil law. He was of the opinion that, in view of the power to deal collectively with the questions of fact and law for which that article makes provision, the plaintiffs in a class action would not have to prove the individual prejudice suffered by each of the members of the group; it would only have to be established, having regard to the evidence as a whole, that there was a common prejudice.

35. I find it difficult to attribute this scope to art. 1241 C.C.L.C., which apparently only deals with the consequence of the judgment on a class action in terms of the presumption of res judicata. I would note in passing that art. 2848 C.C.Q., which is the successor to art. 1241 C.C.L.C., does not reiterate the expression "questions of law or of fact dealt with collectively", on which Nichols J.A. relied. Furthermore, Professor Royer, supra, also declines to view art. 1241 C.C.L.C. as changing the rules of evidence in relation to class actions (at p. 515):

[translation] The rules relating to class actions and article 1241 C.C.L.C. are not, in our opinion, exceptions to the rule stated in the doctrine and the case law concerning the characteristics of a presumption of fact. This should also be the case a fortiori under the Civil Code of Québec. The legislator has now codified the rule found in the doctrine and the case law, in article 2849 C.C.Q. Furthermore, the legislator has created no exception in the case of class actions, unlike what was done in the case of the authority of res judicata, in which the rule previously stated in article 1241 C.C.L.C. has been preserved.

36. In short, the implementation of the class action scheme set out in Book Nine of the Code of Civil Procedure has not, in my view, changed anything in the traditional rules of evidence that apply to civil matters in Quebec and the appellants appear to agree with this. The thrust of their argument is rather directed against proof by presumptions.

(2) Proof by Presumptions

37. Proof by presumptions, which is also referred to as indirect or circumstantial proof, is fully recognized in the civil law tradition. In Quebec, as in France, two types of presumptions are recognized: presumptions established by the legislator, which are legal presumptions, and those left to the discretion of the courts, which are presumptions of fact. In Précis de la preuve (4th ed. 1993), Professor Léo Ducharme defines them as follows (at p. 173):

[translation] In other words, it is an intellectual process by which the existence of an unknown fact is determined by induction from known facts. When the induction results from the law, there is a legal presumption; when the court itself makes the induction, there is a presumption of fact.

38. Under art. 1238 C.C.L.C. (now art. 2846 C.C.Q.), the legislator has left the task of assessing the probative value of presumptions of fact to the courts. This judicial discretion, however, is not absolute. In Quebec, the courts have restricted the admissibility of presumptions of fact to those which are sufficiently serious, precise and concordant: see Montreal Tramways Co. v. Léveillé, 1933 41 (SCC), [1933] S.C.R. 456; Longpré v. Thériault, [1979] C.A. 258; Commission des droits de la personne du Québec v. Montréal (Communauté urbaine de), 1987 1007 (QC CA), [1987] R.J.Q. 2024 (C.A.); La Garantie, Cie d’assurance de l’Amérique du Nord v. Massicotte, [1988] R.R.A. 16 (C.A.); and La Concorde, Cie d’assurances générales v. Doyon, [1989] R.R.A. 52 (C.A.). In 1994, the legislator codified the test set out in the case law and incorporated it in art. 2849 C.C.Q.

39. For the reasons I have already stated, there is no doubt that these rules of proof by presumptions apply to class actions in the same way as they do to any other civil action, just as any other rule of civil evidence also applies to class actions. The legislator has made no distinction in this respect. The only provisions that are specific to class actions and which might, according to the appellants, have some bearing on the rules of evidence are those listed in Book Nine of the Code of Civil Procedure. For example, art. 1031 C.C.P. provides that the court may order collective recovery if the evidence establishes with sufficient accuracy the total amount of the claims of the members. Article 1045 C.C.P., for its part, allows a court in a class action to prescribe measures designed to hasten the proceedings and to simplify the proof, if they do not prejudice a party or the members of the group. These articles merely adapt the applicable rules of evidence to class actions, because of the unique nature of such actions. They do not change the ordinary rules of evidence so as to exempt class actions. In my opinion, such a change would require much clearer provisions.

40. The appellants further contend that the trial judge wrongly relied on a legal presumption of similarity in respect of the moral prejudice suffered by the members of the group. As Nichols J.A. pointed out, that interpretation does not do justice to the analysis done by the trial judge, who was careful to underscore the need to establish the three elements of civil liability (fault, prejudice and causal connection) and based his conclusions on the evidence presented using a variety of methods, including the testimony of people who replaced the employees who had walked out and of expert witnesses. Lesage J. wrote (at p. 391):

[translation] In a class action, the representative’s action is not always taken as the model. The representative is acting for all of the members of the group, but the court may conclude that certain classes of members suffered a different prejudice, and even authorize each member to assert his or her claim individually. At that point, we have to ask whether, based on the evidence adduced, it would be possible to reach a conclusion with respect to all or some of the members of the group that is different from the conclusion reached in respect of Honorine Abel. We must ask whether the members of the group suffered momentary sequelae, insecurity or discomfort as a result of being deprived of care. [Emphasis added.]

41. One cannot therefore conclude that the trial judge relied on the statutory provisions applicable to class actions to create a legal presumption of similarity in assessing the prejudice suffered. In my opinion, Nichols J.A. correctly described the process followed by the trial judge (at p. 2784):

[translation] When the trial judge spoke of a "presumption of similarity", he did not use a presumption of law but rather looked at it as an objective toward which his analysis of the evidence was leading. He never drew the conclusion that all the patients had suffered the same prejudice because the representative of the group had herself suffered discomfort. Rather, he sought to find an element of damage common to everyone, and only after reviewing the evidence as a whole did he find enough evidence to be able to infer that there were serious, precise and concordant presumptions that all the patients had at least suffered discomfort.

If we consider that no member of the group was capable here of expressing himself or herself to describe the subjective prejudice he or she felt, the necessary conclusion is that, in the circumstances, proof by presumptions was the most appropriate method of proof for establishing the existence of such prejudice. [Emphasis added.]

42. I agree with Nichols J.A. on this point and I would add that the trial judge did not rely solely on presumptions of fact, but also took into account the evidence as a whole, including that of witnesses and expert witnesses, in reaching his conclusions.

43. We must now consider whether the Court of Appeal was correct in affirming the trial judge’s conclusion that the disruption of the care and services provided to the patients of the Hospital caused them the moral prejudice of discomfort.

(3) The Evidence

44. The appellants argued at length in this Court that the evidence adduced at trial did not permit the judge to conclude that prejudice had been suffered by each of the members of the group covered by the class action. In other words, the appellants invited this Court to reassess the trial judge’s findings of fact and to reconsider all of the evidence presented at trial, which was long and laborious.

45. First, it must be recalled that the trial judge concluded only that the patients of the Hospital experienced a prejudice in the nature of discomfort, that is, a moral (non‑pecuniary) prejudice. No medical prejudice or permanent physical or psychological sequelae were proved to the satisfaction of the trial judge. In addition, the judge made a clear distinction between the patients admitted to the transit unit and the medical‑surgical unit on the one hand and the other patients on the other hand, in that, in his view, the first had suffered no discomfort. I would note in passing that the appellants have not challenged the definition of discomfort adopted at trial. In order to reach his conclusions, Lesage J. had the opportunity over the 29 days that the trial lasted to hear all the witnesses and to visit the scene, and he was entirely aware of the difficulties engendered by the characteristics of the patients in the circumstances of this case. It is in this context that the appellants are asking that we reverse the trial judge’s findings of fact.

46. The test for determining whether an appellate court may intervene and review a trial court’s findings of fact, which is now settled, is very strict. According to the rule laid down by this Court in Stein v. The Ship "Kathy K", 1975 146 (SCC), [1976] 2 S.C.R. 802, at p. 808, such findings cannot be reconsidered on appeal "unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts"; see also Dorval v. Bouvier, 1968 3 (CSC), [1968] S.C.R. 288; Beaudoin‑Daigneault v. Richard, 1984 15 (SCC), [1984] 1 S.C.R. 2; Lensen v. Lensen, 1987 4 (SCC), [1987] 2 S.C.R. 672; Laurentide Motels Ltd. v. Beauport (City), 1989 81 (SCC), [1989] 1 S.C.R. 705; Ontario (Attorney General) v. Bear Island Foundation, 1991 75 (SCC), [1991] 2 S.C.R. 570; Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351; Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377; Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254.

47. Professor Ducharme, supra, at p. 200, is of the view that this principle must be tempered when proof is made by way of presumptions of fact. I am not certain that this distinction between the various methods of proof can be made. In my view, the inductive exercise required by presumptions of fact, at least where, as here, they are simply one element of proof among others, opens the way to a subjective assessment of the evidence as a whole and of the circumstances surrounding the presentation of the evidence, on the same basis as the testimony. Accordingly, an appellate court should refrain from intervening to reverse the conclusions drawn by the trial judge on the basis of presumptions of fact, unless the trial judge has made some palpable and overriding error.

48. The first point in the instant case is that the trial judge applied the law properly, so that he was able to draw conclusions based on serious, precise and concordant presumptions of fact established by the evidence (as I noted earlier, the judge relied not only on these presumptions, but also and mainly on viva voce evidence, including expert testimony). The second point is that a review of all of the evidence presented at trial, particularly in a context as complex as is found in this case, shows that the trial judge did an exceptional job of assessing and weighing the evidence and I find no error therein of the type that would allow an appellate court to intervene. The excerpts from the evidence cited by the appellants represent only that portion of the evidence that is favourable to them. In fact, those passages are interwoven into a body of evidence that paints a much more objective picture of the situation which prevailed at the time of the illegal strikes, and of the consequences of that situation for the patients. It is also significant that the court which heard the initial appeal also, unanimously, declined to reconsider the trial judge’s findings of fact.

49. I am, therefore, of the view that the trial judge’s findings of fact that the patients of the Hospital had suffered the prejudice of discomfort because of the illegal work stoppages, must be upheld.

50. Lastly, the appellants argued that the rule of the best evidence — which is set out in art. 1204 C.C.L.C. (now art. 2860 C.C.Q.) — was not followed in that the trial judge did not examine each patient’s medical records. In a decision dated February 26, 1987, although he allowed the motion for particulars under art. 168(7) C.C.P. in part, the trial judge declined to grant the request for particulars concerning the condition of each patient as noted in their medical records. The appellants appealed that judgment; the appeal was dismissed and the application for leave to appeal was denied by this Court.

51. Without expressing an opinion as to whether there is res judicata (Fraternité des policiers de la Communauté urbaine de Montréal Inc. v. City of Montreal, 1980 174 (SCC), [1980] 1 S.C.R. 740), I would immediately note that a medical record is not, as the appellant contends, the best evidence. In fact, these documents are only admissible as an exception to the rule excluding hearsay evidence (Royal Victoria Hospital v. Morrow, 1973 152 (SCC), [1974] S.C.R. 501). In any event, I agree with the trial judge for the reasons cited by him: that the patients’ records were not relevant in this case because, inter alia, the assertion that the patients did not suffer identical damage does not justify, before final judgment, a motion for particulars concerning the damage suffered by each patient individually.

(4) Conclusion

52. In conclusion, I am of the view that this Court should not intervene in relation to the first issue, that is, the question of the rules of evidence applicable and applied to class actions. The majority in the Court of Appeal was correct to conclude that proof by sufficiently serious, precise and concordant presumptions of fact applied to class actions in the same manner as it applies to any other civil matter, and that the inferences drawn therefrom by the trial judge were not vitiated by any error of law or fact.

53. Moreover, the Court of Appeal did not err in affirming the judgment of first instance in which, after a meticulous examination of the whole of the evidence, including the testimony of people who replaced the striking employees and of expert witnesses, the trial judge concluded that the elements of civil liability (fault, prejudice and causal connection) had been established on the balance of probabilities and that the patients of the Hospital had suffered the prejudice of discomfort because of the illegal strikes. The second question before this Court relates to the compensation for that moral prejudice.

B. Moral Prejudice

Moral Prejudice

54. The appellants contend that the Court of Appeal was wrong to affirm the decision of the trial judge, who had declined to apply the "functional" approach which, in their view, must govern compensation for moral prejudice. According to them, the patients of the Hospital could not receive compensation in the amount awarded since they were unable, because of their mental condition, to take any satisfaction therefrom. The appellants further argued that the quantum of moral damages awarded was patently excessive in the circumstances of this case.

55. For his part, the respondent stressed the fact that the functional approach cannot be used in the civil law to determine whether a victim is entitled to redress for the moral prejudice suffered. With respect to the calculation of damages, he contended that Quebec law incorporates the three traditional approaches: the conceptual approach, the so‑called personal approach and the functional approach. Lastly, with respect to the calculation of moral damages, he argued that no error had been committed such as would warrant the intervention of an appellate court.

56. In order to clarify the issue surrounding the evaluation of moral damages in Quebec law and to assess the parties’ respective arguments in relation to the functional approach, it would be appropriate to begin by reviewing the case law and the doctrine on this point.

(1) Case Law and Doctrine

57. The head of compensation for moral prejudice and the method of calculating moral damages were considered by this Court in the trilogy Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, and Thornton v. Board of School Trustees of School District No. 57 (Prince George), 1978 12 (SCC), [1978] 2 S.C.R. 267, and also in Lindal v. Lindal, 1981 35 (SCC), [1981] 2 S.C.R. 629. In Andrews, Dickson J. (as he then was) described the various approaches that have been developed for calculating compensation for moral prejudice (at pp. 261‑62):

It is also the area where there is the clearest justification for moderation. As one English commentator has suggested, there are three theoretical approaches to the problem of non‑pecuniary loss (Ogus, 35 M.L.R. 1). The first, the "conceptual" approach, treats each faculty as a proprietary asset with an objective value, independent of the individual’s own use or enjoyment of it. This was the ancient "bot", or tariff system, which prevailed in the days of King Alfred, when a thumb was worth thirty shillings. Our law has long since thought such a solution unsubtle. The second, the "personal" approach, values the injury in terms of the loss of human happiness by the particular victim. The third, or "functional" approach, accepts the personal premise of the second, but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person "with reasonable solace for his misfortune". "Solace" in this sense is taken to mean physical arrangements which can make his life more endurable rather than "solace" in the sense of sympathy. To my mind, this last approach has much to commend it, as it provides a rationale as to why money is considered compensation for non‑pecuniary losses such as loss of amenities, pain and suffering, and loss of expectation of life. Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way. [Emphasis added.]

58. In Lindal v. Lindal, Dickson J. added that the quantum of damages awarded to compensate for moral prejudice depends not only upon the seriousness of the harm, but also upon the satisfaction that the compensation may bring to the victim. He stated (at p. 637):

Thus the amount of an award for non‑pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper‑Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a "tariff". An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.). [Emphasis added.]

He even suggested, although he did not decide the point, that a permanently unconscious plaintiff might be entitled to no moral damages.

59. Legal authors in Quebec disagree on whether the functional approach applies to the evaluation of moral prejudice in civil law. In La responsabilité civile (4th ed. 1994), Professor Jean‑Louis Baudouin (now of the Court of Appeal), whose opinion was adopted by the Court of Appeal, seems to reject the functional approach (at pp. 190‑91):

[translation] In terms of legal policy, [the functional approach] has the merit of simplifying judges’ job enormously by enabling them to group distinct elements under one single head of compensation. On the other hand, with all due respect, it seems to us to be inconsistent with civil law and tradition. First, the civil law allows for compensation of moral or non‑patrimonial damage, not as a sanction for the gravity of the fault or as a consolation prize, but as objective compensation for interference with a legitimate interest. In the civil law, that interest is not necessarily patrimonial in nature or value. Its lack of economic value means neither that it will not be protected nor that there will be no redress for the interference. Second, it seems to us to be difficult, in the civil law, to admit that there may be compensation only where the money awarded can serve to mitigate the effects of the interference: the logical consequence of that rule is to deny any compensation in a case where the money awarded is powerless to perform that function. If, for example, the victim is in a deep coma, no amount of money will enable him or her to secure goods and services that will be able to provide solace for his or her misfortunes. The same will be true if the effect of the accident was to totally dull or desensitize the victim’s perceptions. In terms of esthetic prejudice, if the victim is blind and can never be aware of his or her ugliness, nothing will be owed. In our opinion, in the civil law, the prejudice must be compensated because there has been interference with a legitimate patrimonial or extra‑patrimonial right, and not because there is a material way of alleviating the inconveniences of that interference. The loss to be compensated for is an objective one, a loss that must be measured personally in relation to what the victim has actually been deprived of, difficult though that process may be. Another question is whether the money to be awarded to the victim will actually enable him or her to secure substitute amenities. In our opinion, the compensation is owed because there has been a loss, and not because the victim may hope to secure substitute pleasures. [Emphasis added.]

But he adds:

The existence of these substitute pleasures, however, may undoubtedly comprise one of the elements that may be taken into account in evaluating the prejudice, even though it is not the purpose of that evaluation. [Emphasis added.]

60. Unlike Professor Baudouin, Professor Daniel Gardner, in L’évaluation du préjudice corporel (1994), concludes that what is called the functional approach is consistent with civil law principles and is therefore applicable in Quebec civil law (at p. 162):

[translation] 227 — Conformity with the rules of the civil law. Does the functional approach correspond to the rules of compensation that are applied in a civil law system? In other words, is this a case in which the common law and the civil law differ radically, so that it would be impossible to apply the solution proposed by the Supreme Court in Quebec? The answer is no, although there are some who would not share this opinion.

The fact is that there is no legal rule for evaluating non‑pecuniary losses; there are only judicial practices. The functional approach is not a common law rule, but a method of evaluating a prejudice that is itself recognized in accordance with the legal rules associated with each system. Nearly a half‑century ago, Planiol and Ripert said, in response to the argument based on the impossibility of properly redressing moral prejudice, that one could not "deny such money if, through the satisfaction the victim may secure with it, it at least mitigates his or her suffering". The final reconciliation came with the words used by Dickson J. to define the functional approach. In reality, it has long been recognized and applied in the civil law.

In our opinion, there is therefore no legal reason that militates in favour of rejecting the functional approach in Quebec law. We must simply avoid setting it up on the same level as a genuine legal rule. [Italics in original; underlining added.]

61. In my opinion, the debate concerning the application of the functional approach in Quebec is much more apparent than real and seems to be based on the fact that the various approaches in this field come into play at several levels of the examination of moral prejudice in civil liability: see D. Jutras"Pretium et précision" (1990), 69 Can. Bar Rev. 203.

62. The main problem underlying compensation for moral prejudice is how to assign a cash value to a qualitative loss. The various theories that have been advanced in the field essentially relate to two aspects: (1) the justification for the right to compensation for moral damage and (2) the method of calculating moral damage. I shall briefly discuss each of these aspects of compensation for moral prejudice, more specifically in relation to the functional approach.

(2) Justification for the Right to Compensation for Moral Damage

63. Moral prejudice has been defined as including loss of enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice. Why should the victim be compensated for a prejudice which is, strictly speaking, irreparable? It is undeniable, nonetheless, that moral prejudice is a real prejudice.

64. There is now express provision for compensation for moral prejudice in the Civil Code of Québec, art. 1457 of which sets out the general principle of civil liability:

65. 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.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person and is liable to reparation for the injury, whether it be bodily, moral or material in nature. [Emphasis added.]

65. The traditional justification in civil liability for remedying a prejudice stresses the compensatory function of the damages: restitutio in integrum (or full restitution for the harm caused). Two new justifications have recently been recognized in the literature: distributing the loss suffered among the community, by means of liability insurance, inter alia, and deterring negligent and harmful conduct by urging the person who caused the prejudice and, through an educational process, the general public, to exhibit greater care. However, these instrumentalist conceptions of liability do not appear to me to provide proper justification for compensating moral prejudice, because of the extra‑patrimonial and subjective nature of that prejudice (see Snyder v. Montreal Gazette Ltd., 1988 66 (SCC), [1988] 1 S.C.R. 494, at p. 506).

66. In France, most authors adopt the compensatory approach to justify indemnifying a victim of moral prejudice: see, inter alia, Planiol and Ripert, Traité pratique de droit civil français (2nd ed. 1952), vol. 6, at p. 754; L. Josserand, Cours de droit civil positif français (3rd ed. 1939), vol. II, at p. 262; Mazeaud and Chabas, Leçons de droit civil (8th ed. 1991), t. 2, vol. 1, at p. 406; and B. Starck, Obligations (4th ed. 1991), vol. 1, at p. 69. Although, in my view, this compensatory conception is broader, it does to some extent overlap the functional approach. In Lindal v. Lindal, supra, at p. 636, Dickson J. explained that the functional approach does not attempt

to set a value on lost happiness, [but] attempts to assess the compensation required to provide the injured person with reasonable solace for his misfortune. Money is awarded, not because lost faculties have a dollar value, but because money can be used to substitute other enjoyments and pleasures for those that have been lost. [Emphasis added.]

67. For purposes of this analysis, it is also important to distinguish between the subjective conception of prejudice and the objective conception, as Professor Jutras, supra, stresses, at pp. 216‑17:

[translation] According to the first of these conceptions, extra‑patrimonial prejudice exists only when it is felt. Regardless of its seriousness, an injury has extra‑patrimonial consequences only if the victim is capable of perceiving its effects. From this standpoint, extra‑patrimonial prejudice is exclusively subjective. Suffering, inconvenience, loss of enjoyment: the injury itself cannot be distinguished from its psychological consequences since the prejudice lies entirely in those consequences. One of the corollaries of this conception, for example, is that an unconscious victim is not entitled to any compensation for extra‑patrimonial prejudice. Not only must we admit that such compensation is superfluous, but we must also recognize that the prejudice itself does not exist in this case. There is no moral damage without moral or physical suffering, without the victim feeling the loss of enjoyment of life.

On the other hand, a portion of the extra‑patrimonial prejudice can be envisaged in material form by stressing the visible and tangible nature of the prejudice. This analysis does not rule out the subjective concept of moral prejudice. In fact, it is in addition thereto. Its essence lies in the recognition of the existence of objective extra‑patrimonial prejudice independent of the suffering or loss of enjoyment of life felt by the victim. From this perspective, the prejudice is composed not only of the victim’s perception of his or her condition, but also of that condition itself. In other words, it is not sufficient to compensate the victim for the patrimonial consequences and moral and physical suffering that result from the injury. The victim must also be compensated for the objective loss of a limb or another faculty, based on "external manifestations of the facts that cause suffering". [Emphasis added.]

68. The current law, case law and literature on this question in Quebec support the second conception, that is, that the right to compensation for moral prejudice is not conditional on the victim’s ability to profit or benefit from monetary compensation: see also Giguère v. Grégoire, [1973] C.S. 119; and Jim Russell International Racing Drivers School (Canada) Ltd. v. Hite, [1986] R.J.Q. 1610 (C.A.); see also Baudouin, supra, at pp. 190‑91. Preference should, therefore, be given to the objective characterization of moral prejudice in Quebec; this is also much more consistent with the fundamental principles of civil liability.

69. In fact, in Quebec civil law, the primary function of the rules of civil liability is to compensate for prejudice. This objective requires that there be compensation for the loss suffered or the opportunity for profit lost because of the wrongful conduct, regardless of whether the victim is capable of enjoying the substitute pleasures. Moreover, it is this compensatory aspect of indemnification for moral prejudice that was stressed by Taschereau J. (as he then was) in Chaput v. Romain, 1955 74 (SCC), [1955] S.C.R. 834, 1 D.L.R. (2d) 241, at pp. 246‑47 D.L.R., where he wrote:

[translation] Under art. 1053 C.C., the obligation to compensate flows from two essential elements: an injury suffered by the victim, and fault on the part of the author of the delict or quasi‑delict. Even if no pecuniary damage is proven, there exists nevertheless, not a right to punitive or exemplary damages which the law of Quebec does not recognize, but without doubt a right to moral damages. Civil law never punishes the author of a delict or a quasi‑delict. It recognizes and provides for compensation to the victim for the injury suffered. Punishment is exclusively within the province of criminal Courts: French v. Hétu (1908), 17 Que. K.B. 429; Guibord v. Dallaire (1931), 53 Que. K.B. 123; [Goyer v. Duquette (1937), 61 Que. K.B. 503 at p. 512]; Duhaime v. Talbot (1937), 64 Que. K.B. 386 at p. 391. Moral damages, as any other damages awarded by the civil Court, have exclusively a compensatory character. [Italics in original; underlining added.]

For a more thorough analysis, see Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., 1996 208 (SCC), [1996] 2 S.C.R. 345 (reasons of Gonthier J.).

70. On the other hand, the objective conception of moral prejudice is much more consistent with the civil law rule according to which the right of action, that accompanies the moral prejudice resulting from the pain and suffering experienced by the victim before death, is transmissible to the heirs (see Baudouin, supra, at pp. 198‑99). In Driver v. Coca‑Cola Ltd., 1960 88 (SCC), [1961] S.C.R. 201, the leading decision on the issue, Taschereau J. wrote (at p. 207):

[translation] I well understand, and this cannot be seriously disputed, that a person who is the victim of an accident has a legal claim, when the person’s condition creates the sad prospect of facing a shortened life, of dragging out a wretched existence, full of infirmities, physical pain and moral anguish and worry. This is the basis on which, if the evidence so warrants, a claim for damages such as the claim submitted for our consideration may and must be based, since at that point a right which may be evaluated in money has arisen, and is part of the victim’s patrimony under the provisions of art. 607 of the Civil Code. [Emphasis in original.]

The purely subjective conception of the right to have the moral prejudice remedied would be totally inconsistent with this principle, since the deceased victim is obviously not capable of enjoying the substitute benefits which the moral damages awarded may secure.

71. Thus for the purpose of characterizing the nature of the moral prejudice for purposes of compensation, I am of the view, like Nichols J.A., that the purely subjective conception has no place in the civil law, since the reason that damages may be recovered is not because the victim may benefit from them, but rather because of the very fact that there is a moral prejudice. The victim’s condition or capacity to perceive are, therefore, irrelevant in relation to the right to compensation for the moral prejudice. It may be that the rule is different in the common law; there is no reason, however, to decide this point in the context of this appeal. On the other hand, unlike bodily or material (so‑called patrimonial) prejudice, moral (so‑called extra‑patrimonial) prejudice cannot readily be calculated in monetary terms. That does not mean that it cannot be quantified. In addition, it remains to be seen whether the victim’s capacity to perceive has an impact on the determination of the quantum of damages.

(3) Method of Calculating Moral Damages

72. In calculating compensation, moral prejudice may be addressed in three different manners which, as we shall see, are much more often complementary than opposite: see A. I. Ogus"Damages for Lost Amenities: for a Foot, a Feeling or a Function?" (1972), 35 Modern L. Rev. 1; and A. Wéry"L’évaluation judiciaire des dommages non pécuniaires résultant de blessures corporelles: du pragmatisme de l’arbitraire?", [1986] R.R.A. 355. These are the conceptual, personal and functional approaches, which we shall examine briefly in turn.

73. The so‑called conceptual approach considers the components of a human being to have purely objective value, which is expressed in a specific monetary amount. The major disadvantage of this extremely simple method is that it fails to take into account the victim’s specific situation. It has been criticized as being an “unsubtle” solution: Andrews v. Grand & Toy Alberta Ltd., supra, at p. 261.

74. I would note, however, that in practice, French law has applied this method of evaluation for a very long time: see Y. Chartier, La réparation du préjudice dans la responsabilité civile (1983), at p. 683; G. Viney, L’indemnisation des victimes d’accidents de la circulation (1992), at pp. 120‑21; and M. Le Roy, L’évaluation du préjudice corporel (12th ed. 1993), at p. 67. In Quebec, moreover, there are abundant examples in the case law where the courts have implicitly used the conceptual approach to calculate the amount of moral damages: see, inter alia, Dugal v. Procureur général du Québec, [1979] C.S. 617, rev’d in part J.E. 82‑1169 (C.A.) (amount reduced owing to a change in circumstances); Bouliane v. Commission scolaire de Charlesbourg, [1984] C.S. 323, aff’d 1987 705 (QC CA), [1987] R.J.Q. 1490 (C.A.) for moral damages; and Canuel v. Sauvageau, [1991] R.R.A. 18 (C.A.).

75. Secondly, at the opposite end of the spectrum from the conceptual approach, the personal approach to calculating moral damages makes it possible to determine the compensation that corresponds specifically to the loss suffered by the victim. As Wéry wrote, supra, at p. 357, this approach [translation] "assigns no objective value to the organs of the human body but rather seeks to evaluate, from a subjective point of view, the pain and inconvenience resulting from the injuries suffered by the victim".

76. The personal approach, which thus declines to standardize the calculation of moral prejudice, is not preferred in Quebec case law when the moral prejudice is serious and calls for payment of the largest possible amount of moral damages. It nonetheless seems to be relevant in the case of an average or low degree of prejudice: see Gingras v. Robin, J.E. 84‑765 (Sup. Ct.); Bolduc v. Lessard, [1989] R.R.A. 350 (Sup. Ct.); and Drolet v. Parenteau, [1991] R.J.Q. 2956 (Sup. Ct.), aff’d 1994 5444 (QC CA), [1994] R.J.Q. 689 (C.A.). There is then a separate evaluation of the various components of the moral prejudice, which is an indication that the personal approach is being applied.

77. Lastly, the third method of calculating moral damages, adopted as applicable in the factual circumstances of the trilogy Andrews v. Grand & Toy Alberta Ltd., supra, Arnold v. Teno, supra, and Thornton v. Board of School Trustees of School District No. 57 (Prince George), supra, and in Lindal v. Lindal, supra, refers to the functional approach. As Dickson J. explained in Andrews, this approach seeks to calculate the “physical arrangements which can make [the injured person’s] life more endurable . . . accepting that what has been lost is incapable of being replaced in any direct way” (p. 262).

78. It should be noted that the Quebec courts have not generally applied the functional method. In fact, in most cases, the trier of fact will first determine the quantum of moral damages and then justify it on an annual basis, referring at that point to certain replacement values: see, for example, Cortese v. Sept‑Îles Hélicoptères Services Ltée, 1982 2807 (QC CS), [1983] R.L. 46 (Sup. Ct.); Bouliane v. Commission scolaire de Charlesbourg, supra; Perron v. Société des établissements de plein air du Québec, J.E. 90‑721 (Sup. Ct.); and Marchand v. Champagne, J.E. 92‑429 (Sup. Ct.).

79. This being said, it is apparent from the case law and literature in Quebec that, in terms of calculating compensation for moral prejudice, the three methods of evaluation described supra interact, leaving the courts considerable latitude so that they can reach a reasonable and equitable result. Professor Gardner, supra, stated, correctly in my view, the basic rule that applies in this field (at p. 173):

[translation] 239 -- Applicable legal rule. In our view, evaluation of non‑pecuniary losses must not be based on the prior and exclusive choice of a method to evaluation, since those methods (conceptual, personal and functional) are not legal rules. The only rule in this respect is the rule that the victim be compensated in a personalized manner for the loss suffered (article 1611 C.C.Q.). [Italics in original; underlining added.]

80. I entirely concur in this view. Thus, in Quebec civil law the three approaches to calculating the amount necessary to compensate for moral prejudice ‑‑ that is, the conceptual, personal and functional approaches ‑‑ apply jointly, and thereby encourage a personalized evaluation of the moral prejudice. In fact, this appears to me to be the best solution in a field in which exact quantification of the prejudice suffered is extremely difficult because of the qualitative nature of that prejudice.

81. Consequently, I am of the opinion that the functional approach, as defined in the trilogy and in Lindal v. Lindal, supra, is appropriate in Quebec civil law, not for the purpose of determining the right to compensation for moral damage, but rather with respect to calculating the amount of moral damages.

82. In the case before us, consequently, the Court of Appeal was correct to reject the appellants’ argument that the condition of the patients of the Hospital, or their capacity to perceive, was of some relevance in this case. Moreover, in terms of the calculation of moral damages, the trial judge properly took into account a panoply of factors in this respect, considerations that included all of the conceptual, personal and functional approaches. This being said, was the quantum of moral damages awarded appropriate?

(4) The Quantum of Moral Damages

83. The appellants contended that the compensation awarded by the trial judge in this respect was patently excessive. The respondent, for his part, stressed that while the quantum of moral damages appeared to the Court of Appeal to be generous, it was certainly not considered to be unreasonable to the point that the intervention of that court was warranted.

84. The test for the intervention of an appellate court in this field is very strict and gives preference to the evaluation done by the trier of fact, as set out in Andrews v. Grand & Toy Alberta Ltd., supra, at p. 235:

Let me say in introduction what has been said many times before, that no appellate court is justified in substituting a figure of its own for that awarded at trial simply because it would have awarded a different figure if it had tried the case at first instance. It must be satisfied that a wrong principle of law was applied, or that the overall amount is a wholly erroneous estimate of the damage; Nance v. B.C. Electric Railway Co. [1951 374 (UK JCPC), [1951] A.C. 601]. [Emphasis added.]

85. Contrary to the appellants’ arguments, the subjective nature of moral prejudice does not in itself constitute grounds for intervening. This Court has in fact pointed this out on several occasions (see the trilogy and Snyder v. Montreal Gazette Ltd., supra) and, as I mentioned earlier, because of the nature of the prejudice, the quantum of moral damages cannot be determined exactly.

86. In the case at bar, the moral damages awarded by the trial judge were the result of a meticulous examination of the evidence and the appellants have demonstrated no error in this respect. The evidence must be examined as a whole, and not by quoting passages out of context. Nor have the appellants demonstrated any error on the part of the trial judge, and in my view the Court of Appeal rightly declined to intervene to vary the trial judgment with regard to this head of damages.

87. Lastly, we must dispose of the appellants’ argument that no compensation should be allowed since, it seems, the moral damages awarded will not increase the victims’ patrimony. Given that most patients of the hospital receive social assistance when they own less than $1,500, the appellants argued that the compensation will deprive them of that assistance and will in fact only benefit the government. This argument must be rejected at once, since, as long as there is no duplication in compensation, courts should not have regard to the effect of an award of damages on the recipient’s patrimony. In addition, such an analysis would be merely hypothetical in most cases.

88. Consequently, this Court should not intervene with regard to the issue of compensation for the moral prejudice. On the other hand, the trial judge did not award exemplary damages and the Court of Appeal concluded that he had erred on that point. It is this question that remains to be examined.

C. Exemplary Damages under the Charter

Exemplary Damages under the Charter

89. The trial judge declined to award exemplary damages under the second paragraph of s. 49 of the Charter since, in his view, the nature of the prejudice did not make this remedy available. The majority of the Court of Appeal believed, in contrast, that the numerous and varying inconveniences engendered by the strikes not only constituted a compensable moral prejudice under the general rules of civil liability (art. 1053 C.C.L.C.), but directly interfered with the fundamental rights guaranteed by ss. 1 and 4 of the Charter, thereby making available the exemplary remedy contemplated in the second paragraph of s. 49.

90. The appellants objected to the manner in which the majority of the Court of Appeal characterized the facts, and contended that that court erred in finding that there had been an unlawful and intentional interference with the inviolability and dignity of the patients of the Hospital. Under this heading, we must examine two aspects of the decision of the Court of Appeal: whether there has been an unlawful interference with a right guaranteed by the Charter, and whether that interference was intentional.

(1) Unlawful Interference

91. It is a good idea at the outset, when interpreting the Charter, to point out the importance of keeping in mind the principles of interpretation that apply to legislation concerning human rights and freedoms. In Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., supra, I reviewed those rules (at paras. 42 and 45):

The Charter is not an ordinary statute implemented by the Quebec legislature in the same way as any other enactment. Rather, it has a special status: it is a fundamental, quasi‑constitutional statute of public order that must be given a large and liberal interpretation in order to achieve the general purposes underlying it as well as the specific objectives of its particular provisions.

Moreover, not only does the nature of this human rights and freedoms legislation call for a large and liberal interpretation, but s. 53 of the Charter also provides that “[i]f any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter”. This provision has been relied upon to ensure that statutes are interpreted in a manner consistent with the rights guaranteed in the Charter: see Thibault v. Corporation professionnelle des médecins du Québec, supra; and Syndicat national des employés de l’Institut Doréa (C.S.N.) v. Conseil des services essentiels, 1987 6453 (QC CS), [1987] R.J.Q. 925 (Sup. Ct.); see also Côté, [The Interpretation of Legislation in Canada (2nd ed. 1991)], at p. 311.

92. The two provisions that we must construe are ss. 1 and 4 of the Charter, which I shall reproduce here for ease of reference:

93. Every human being has a right to life, and to personal security, inviolability and freedom.

He also possesses juridical personality.

4. Every person has a right to the safeguard of his dignity, honour and reputation.

5. The task of defining the concepts of "inviolability" and "dignity" is made particularly difficult by the fact that the Quebec courts seem to have paid little attention to their interpretation. In fact, courts have often simply concluded, without further discussion, that there had or had not been interference with those rights. See, concerning the right to inviolability, Institut Philippe Pinel de Montréal v. Dion, 1983 3036 (QC CS), [1983] C.S. 438; Jobin v. Ambulance Ste‑Catherine J.‑C. Inc., [1992] R.J.Q. 56 (Sup. Ct.); and Proulx v. Viens, [1994] R.J.Q. 1130 (C.Q.). See also, on the protection of dignity, Association des professeurs de Lignery (A.P.L.) v. Alvetta‑Comeau, 1989 1247 (QC CA), [1990] R.J.Q. 130 (C.A.), and Commission des droits de la personne du Québec v. Lemay, 1995 3240 (QC TDP), [1995] R.J.Q. 1967 (H.R.T.).

6. In the discussion that follows, I shall attempt to provide some guidance as to the interpretation of the concepts of "inviolability" and "dignity" and to determine whether those rights were violated in the case at bar.

(a) Personal Inviolability

95. Section 1 of the Charter guarantees the right to personal "inviolability". The majority of the Court of Appeal was of the opinion, contrary to the trial judge’s interpretation, that the protection afforded by s. 1 of the Charter extends beyond physical inviolability. I agree. The statutory amendment enacted in 1982 (see An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, in force at the time this cause of action arose) which, inter alia, deleted the adjective "physique", in the French version, which had previously qualified the expression "intégrité" (inviolability), clearly indicates that s. 1 refers inclusively to physical, psychological, moral and social inviolability. The question is rather one of determining what the concept of "inviolability" must be understood to mean.

96. The Petit Robert 1 (1989) defines the word "intégrité" as follows, at p. 1016: [translation] "1 (1530). Condition of a thing that has remained intact. See Intégralité, plénitude, totalité. The integrity of a whole, of an entire thing. Integrity of a work. "The integrity of the organism is essential to the manifestations of consciousness" (Carrel). The integrity of the territory. REM. Integrity is more qualitative than integrality, which is generally reserved for that which is measurable". Having regard to this definition, the Superior Court made the following comments in Viau v. Syndicat canadien de la fonction publique, [1991] R.R.A. 740, at p. 745:

[translation] When applying this concept to persons, we find that it is a threshold of moral damages below which there is no interference with personal inviolability. This threshold will be exceeded when the interference has left the victim less complete or less intact than he or she previously was. This diminished condition must also be of some lasting, if not permanent nature. [Emphasis added.]

97. This approach to the interpretation of the concept of inviolability set out in s. 1 of the Charter appears to me to be appropriate. The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold. The interference must affect the victim’s physical, psychological or emotional equilibrium in something more than a fleeting manner. Moreover, the objective of s. 1, as it is worded, makes it much more similar to a guarantee of inviolability of the person and, accordingly, to protection against the certain consequences of the violation.

98. The evidence in this case, as the trial judge pointed out, did not establish that the patients of the Hospital suffered any permanent prejudice giving rise to psychological or medical sequelae: that is, it did not establish that the patients’ condition deteriorated in any noticeable way as a result of the strike. Rather, the trial judge concluded that there had been prejudice in the nature of temporary discomfort, which he characterized as [translation] "minor psychological distress". Despite the fact that the majority of the Court of Appeal reached the opposite conclusion, I find it difficult in the circumstances to see anything in the trial judge’s characterization of the prejudice, which I accept as proved, that amounts to interference with the right to personal inviolability guaranteed by s. 1 of the Charter.

(b) Personal Dignity

99. For its part, s. 4 of the Charter enshrines the right to the safeguard of personal dignity. This provision seems to have been cited mainly in defamation cases: see, inter alia, Dubois v. Société St‑Jean‑Baptiste de Montréal, [1983] C.A. 247; Blanchet v. Corneau, [1985] C.S. 299; Scotia McLeod Inc. v. Champagne, [1989] R.J.Q. 1845 (Sup. Ct.); and Desrosiers v. Groupe Québécor Inc., [1994] R.R.A. 111 (Sup. Ct.). The component of this right that relates to personal dignity in the context of this case has been left largely unexplored.

100. In addition to being a right specifically protected by s. 4 of the Charter, dignity is, having regard to the preamble to the Charter, a value that underlies the rights and freedoms guaranteed therein:

Whereas all human beings are equal in worth and dignity, and are entitled to equal protection of the law;

See also article 1 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), which provides that all human beings are born free and equal in dignity and in rights.

101. In the Petit Robert 1, at p. 541, the expression "dignité" is defined as follows: [translation] "1 Respect merited by someone. Dignity of man compared with other beings. See Grandeur, noblesse. Principle of the dignity of the human person: which holds that a human being must be treated as an end in himself or herself. ‘All of the dignity of man lies in thought’ (Pasc.). ‘The only dignity of man: the tenacious revolt against his condition’ (Camus). 2 Self‑respect. See Amour‑propre, fierté, honneur. To have dignity. To lack dignity. ‘His haughty dignity that . . . kept him honest and solitary’ (Loti)". It is in these two senses, which could be characterized as internal and external, that we must understand "dignity" within the meaning of the Charter, which itself makes no distinction.

102. The concept of "dignity" has been explored in the context of the Canadian Charter of Rights and Freedoms. In the opinion of the appellants, given that the decisions under the Canadian Charter refer to "human dignity" and the Quebec Charter refers only to "dignity", we cannot draw any analogy between these two concepts. This argument is without any merit. Section 4 of the Quebec Charter provides that "[e]very person has a right to the safeguard of his dignity" (emphasis added). The dignity to which s. 4 refers cannot be anything other than "personal dignity", that is, in other words "human dignity".

103. The concept of human dignity was interpreted in R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, which dealt with the right to life, liberty and security of the person, a right guaranteed by s. 7 of the Canadian Charter. Madam Justice Wilson provided the following definition of that right (at p. 166):

The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.

See also Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at p. 1179, per Cory J.

104. In Commission des droits de la personne du Québec v. Lemay, supra, the Quebec Human Rights Tribunal correctly, in my view, stated the essence of the right to the safeguard of personal dignity (at p. 1972):

[translation] Consequently, every human being has intrinsic value which makes him or her worthy of respect. For the same reason, every human being is entitled to recognition of the rights and freedoms of the person and to the fully equal exercise thereof. [Emphasis added.]

105. Having regard to the manner in which the concept of personal "dignity" has been defined, and to the principles of large and liberal construction that apply to legislation concerning human rights and freedoms, I believe that s. 4 of the Charter addresses interferences with the fundamental attributes of a human being which violate the respect to which every person is entitled simply because he or she is a human being and the respect that a person owes to himself or herself.

106. Moreover, in my opinion, because of the underlying concept of respect, the right to personal dignity, unlike the concept of inviolability, does not require that there be permanent consequences in order for interference with that right to be found. Thus, even a temporary interference with a fundamental attribute of a human being would violate s. 4 of the Charter. This interpretation is also based on the nature of the other rights protected by s. 4 -- honour and reputation: noscitur a sociis. It is not necessarily a requirement, in order for there to be a violation of these guarantees, that there be permanent effects, although the effects may be permanent.

107. In the case before us, it appears to me that the majority of the Court of Appeal properly pointed out that, in considering the situation of the mentally disabled, the nature of the care that is normally provided to them is of fundamental importance. We cannot ignore the fact that the general objective of the services provided at the Hospital goes beyond meeting the patients’ primary needs (see Commission des droits de la personne v. Coutu, [1995] R.J.Q. 1628 (H.R.T.), at pp. 1652‑53). This is apparent from, inter alia, the legislator’s intention (see An Act respecting health services and social services, R.S.Q., c. S‑4.2) and the fact that there is a certain level of social consensus concerning what sort of support services are required in order for the needs of these people to be met.

108. This being said, the fact that some patients have a low level of awareness of their environment because of their mental condition may undoubtedly influence their own conception of dignity. As Fish J.A. observed, however, when we are dealing with a document of the nature of the Charter, it is more important that we turn our attention to an objective appreciation of dignity and what that requires in terms of the necessary care and services. In the case at bar, I believe that the trial judge’s findings of fact indicate, beyond a shadow of a doubt, that, although the discomfort suffered by the patients of the Hospital was transient, it constituted interference with the safeguard of their dignity, a right guaranteed by s. 4 of the Charter, despite the fact that, as the trial judge noted, these patients might have had no sense of modesty.

109. Consequently, the majority of the Court of Appeal was correct in concluding that the numerous and varying inconveniences engendered by the illegal strikes not only constituted a moral prejudice under the general rules of civil liability, but also interfered with a right guaranteed by the Charter. Moreover, that interference is unlawful within the meaning of s. 49 of the Charter since the prejudice suffered by the patients was caused by conduct in the nature of a fault within the meaning of art. 1053 C.C.L.C. (see Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., supra, at para. 120, per Gonthier J.; see also P. Roy"La difficile intégration du concept de dommages exemplaires en droit québécois", in Responsabilité civile et les dommages (en constante évolution) (1990), at pp. 29‑31).

110. What now remains to be determined is whether the interference with the right to personal dignity was also intentional, so that the exemplary remedy set out in the second paragraph of s. 49 of the Charter would be available.

(2) Intentional Interference

111. The issue here is what the expression "unlawful and intentional interference" with a protected right, as it is used in the second paragraph of s. 49 of the Charter, means for the purposes of the exemplary damages contemplated in that section. The judgments of the Quebec Court of Appeal on this point are somewhat inconsistent, and essentially there seem to be two trends of thought (see in this regard P. Roy’s remarkably thorough doctoral thesis, Les dommages exemplaires en droit québécois: instrument de revalorisation de la responsabilité civile (1995), vol. II, at pp. 388‑408). As a first step, it is appropriate to review these judicial approaches.

112. The first approach treats unlawful and intentional interference under the second paragraph of s. 49 of the Charter, inter alia, as if it were gross fault, as that concept is traditionally defined in the civil law (see, for example, art. 1474 C.C.Q.). In West Island Teachers’ Association v. Nantel, 1988 795 (QC CA), [1988] R.J.Q. 1569 (C.A.), Chevalier J. (ad hoc) proposed the following definition of the concept of intentional interference (at p. 1574):

[translation] Unlawful interference with one of the rights recognized by the Charter is a delict. In order to be intentional, it must be committed in circumstances which indicate a determined intent to cause the damage resulting from the violation. That intent may take a number of forms. It could appear from a finding that the fault committed is gross to the point that the mind cannot imagine that the person who committed it could have failed to realize from the outset that it would produce the harmful consequences that resulted from it. Fault is also intentional if it is the result of wild and foolhardy recklessness in disregard for the rights of others, with full knowledge of the immediate and natural or at least extremely probable consequences that his or her action will cause to the victim. [Emphasis added.]

113. The second conception requires evidence that the person responsible for the unlawful interference clearly intended the consequences of his or her wrongful conduct. In Association des professeurs de Lignery (A.P.L.) v. Alvetta‑Comeau, supra, Baudouin J.A. adopted this approach (at p. 136):

[translation] The legislator’s use of the adjective "intentional" seems to me to indicate that the legislator did not intend to refer simply to gross fault, but on the contrary, required that the intended, conscious and deliberate nature of the act committed be shown. Thus, it is the minds of the persons who committed the fault that must be scrutinized in order to assess this second criterion. The evidence shows that there was a calculated, firm intention to harm the respondents. . . . [Emphasis added.]

114. After the Court of Appeal rendered its decision in the instant case, it again ruled on this question, in Augustus v. Gosset, 1995 5101 (QC CA), [1995] R.J.Q. 335 (judgment on the appeal to this Court rendered concurrently with this judgment (1996 173 (SCC), [1996] 3 S.C.R. 268). After reiterating what Baudouin J.A. said in Association des professeurs de Lignery (A.P.L.) v. Alvetta‑Comeau, supra, Deschamps J.A., writing for the majority, stated that in order for unlawful interference to be intentional, it must not result from the mere negligence or recklessness of the person responsible, but rather must occur in circumstances indicating a determined intent to cause prejudice. She wrote (at pp. 372‑73):

[translation] [Baudouin J.A.’s interpretation in Alvetta‑Comeau] seems to me to be the only one that can be accepted, having regard to the historical context and the specific nature of the civil law. The legislator has chosen to make only truly intentional interference subject to exemplary damages and the fact that reckless or negligent interference was not included, regardless of the gravity of the recklessness or negligence, must surely also be by choice. The distinction cannot have escaped the legislator, and I must respect that distinction.

In some situations, the intention to commit the interference with a right protected by the Charter may be immediately apparent from the deliberate nature of the act committed. Thus in both Association des professeurs de Lignery (A.P.L.), syndicat affilié à la C.E.Q. v. Alvetta‑Comeau and West Island Teachers’ Association v. Nantel, it was apparent that the purpose of the intentional acts of the union representatives was to interfere with the protected rights of the dissident union members.

Similarly, in Syndicat national des employés de l’Hôpital St‑Ferdinand v. Curateur public du Québec, the union members knew that the deprivation of services would cause inconvenience to the patients; while this was a way for them to put pressure on the employer, nonetheless the consequence of the acts committed, the interference with the protected right, was intended.

Having regard to this context, I do not believe that section 49 paragraph 2 of the Charter leaves any room for the introduction of the concept of recklessness which the trial judge seems to have applied. [Emphasis added.]

115. To clarify this issue, it is essential to situate the Charter concepts of unlawful interference and unlawful and intentional interference in relation to the traditional concepts of civil liability, namely fault, prejudice and causal connection.

116. To find that there has been unlawful interference, it must be shown that a right protected by the Charter was infringed and that the infringement resulted from wrongful conduct. A person’s conduct will be characterized as wrongful if, in engaging therein, he or she violated a standard of conduct considered reasonable in the circumstances under the general law or, in the case of certain protected rights, a standard set out in the Charter itself: Roy, Les dommages exemplaires en droit québécois: instrument de revalorisation de la responsabilité civile, supra, at pp. 350‑58. Once the existence of unlawful interference is established, the victim may “obtain . . . compensation for the moral or material prejudice resulting therefrom” under the first paragraph of s. 49 of the Charter. Whether under the civil law or the Charter, prejudice and causal connection, which are concepts distinct from fault and unlawful interference, concern the actual consequences of the conduct of the person at fault or the person who committed the unlawful interference. The assessment of such consequences is intended to circumscribe the extent of the victim’s right to compensation.

117. Unlike an award of compensatory damages, an award of exemplary damages under the second paragraph of s. 49 of the Charter depends not on the extent of the prejudice resulting from the unlawful interference, but on the intentional nature of that interference. Since, as stated above, unlawful interference is the result of wrongful conduct that infringes a Charter right, it is therefore the result of that conduct that must be intentional. In other words, for unlawful interference to be characterized as “intentional”, the person who committed the interference must have desired the consequences that his or her wrongful conduct would have.

118. From this perspective, in interpreting the expression “unlawful and intentional interference”, it is important not to confuse the intent to commit a wrongful act with the intent to cause the consequences of that act. In this regard, the second paragraph of s. 49 of the Charter could not be any clearer: it is the unlawful interference ‑‑ and not merely the fault ‑‑ that must be intentional. Accordingly, although certain analogies are possible, I think it is necessary to resist the temptation to compare the concept of “unlawful and intentional interference” under the Charter to the traditionally recognized concepts of “gross fault” or even “intentional fault”. Contra: see, inter alia, Baudouin, supra, at pp. 153‑54; L. Perret"De l’impact de la Charte des droits et libertés de la personne sur le droit civil des contrats et de la responsabilité au Québec" (1981), 12 R.G.D. 121, at pp. 138‑39; and G. Brière de L’Isle"La faute dolosive ‑‑ tentative de clarification", D.1980.Chron.133.

119. This being said, the meaning and scope of the expression "unlawful and intentional interference" with a right guaranteed by the Charter must be clarified. We should first note that, like the rights and freedoms that the Charter protects, the remedies contemplated by the Charter must be generously construed in order to achieve their underlying objectives. In Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., supra, this Court, which was unanimous on this point, stressed that exemplary damages under the Charter are intended to punish and deter certain conduct, as stated in art. 1621 C.C.Q. Gonthier J. wrote (at para. 126):

It is now settled that exemplary damages awarded under the Charter are not compensatory but rather seek to achieve the dual objective of punishment and deterrence (Papadatos v. Sutherland, 1987 615 (QC CA), [1987] R.J.Q. 1020 (C.A.), at p. 1022; Lemieux v. Polyclinique St‑Cyrille Inc., 1988 1324 (QC CA), [1989] R.J.Q. 44 (C.A.); and Association des professeurs de Lignery, supra, at p. 137).

I shared the same view (at para. 21):

[I]t is clear that the purpose of awarding exemplary damages is not to compensate, but is related to the law’s role of punishment and deterrence. . . .

Moreover, I note that the same objective of punishment and deterrence underlies the awarding of exemplary damages in the common law (see, in Canada, Vorvis v. Insurance Corp. of British Columbia, 1989 93 (SCC), [1989] 1 S.C.R. 1085; and, in the United States, BMW of North America, Inc. v. Gore, 64 U.S.L.W. 4335 (1996); see also Ontario Law Reform Commission, Report on Exemplary Damages (1991); and S. M. Waddams, The Law of Damages (2nd ed. 1991 (loose‑leaf)), at pp. 11-10 et seq.).

120. Having regard to the case law and the doctrine in Quebec and in the common law on this question and, even more importantly, in accordance with the principles of large and liberal interpretation of legislation concerning human rights and freedoms together with the objective of exemplary remedies (i.e., punishment and deterrence), I believe that a relatively permissive approach should be encouraged in Quebec civil law when effect is to be given to the expression "unlawful and intentional interference" for the purposes of the exemplary damages contemplated in the Charter.

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

122. In addition to being consistent with the wording of s. 49 of the Charter, this interpretation of the concept of “unlawful and intentional interference” is in keeping with the preventive and deterrent role of exemplary damages, which strongly suggests that only conduct the consequences of which could have been avoided, that is, the consequences of which were either intended or known by the person who committed the unlawful interference, should be punished by an award of such damages: Roy, Les dommages exemplaires en droit québécois: instrument de revalorisation de la responsibilité civile, supra, vol. I, at pp. 231‑32. I would add that the determination of whether there has been unlawful and intentional interference will depend on the assessment of the evidence in each case and that, even where such interference exists, the award and the quantum of exemplary damages under the second paragraph of s. 49 and under art. 1621 C.C.Q. remain discretionary.

123. In the case before us, the majority of the Court of Appeal was of the opinion that [translation] "[i]n order for the interference to be intentional, it must have been committed in circumstances that indicate a determined intent to cause the damage resulting from the violation" (p. 2804). That does not constitute an error of law, since the intent to cause the prejudice, under the test proposed supra, constitutes intentional interference within the meaning of the Charter.

124. Relying on the findings of fact made by the trial judge, which it considered to have been proved, the majority of the Court of Appeal held that the appellants’ conduct in the course of the illegal strikes of October and November 1984 constituted intentional interference within the meaning of the second paragraph of s. 49 of the Charter. I am in complete agreement with this conclusion. The appellant unions backed the illegal strikes and, apparently, on the evidence as a whole, orchestrated and incited them. In fact, as the trial judge noted, Luc Painchaud and Pierre Létourneau, two of the appellants’ representatives, were conspicuously involved in the conduct of the illegal walkouts, to the full knowledge of the leaders of the appellant unions. Moreover, the pressure that the appellants wanted to bring to bear on the employer inevitably involved disrupting the services and care normally provided to the patients of the Hospital, and necessarily involved intentional interference with their dignity.

125. Secondly, the appellants challenged both the appropriateness of awarding exemplary damages and the quantum of damages awarded. As the appellants properly contended, exemplary damages are not automatically awarded under the Charter whenever there has been unlawful and intentional interference with a protected right. The legislator has allowed judges discretion in this regard, as indicated by the use of the expression "may" in the second paragraph of s. 49 of the Charter. In addition, as the Court of Appeal pointed out, that discretion extends to the determination of the appropriate amount, in order to achieve the purposes for which the exemplary damages are awarded, that is, to punish the offender and set an example for society.

126. However, the discretion enjoyed by courts in respect of awarding exemplary damages and of the quantum of such damages is not absolute. It is guided and circumscribed by various factors that have been developed by the courts: see, inter alia, West Island Teachers’ Association v. Nantel, supra; Samuelli v. Jouhannet, [1994] R.J.Q. 152 (Sup. Ct.); and Roy v. Patenaude, 1994 6107 (QC CA), [1994] R.J.Q. 2503 (C.A.). These criteria, by which the courts must be guided, have been codified in art. 1621 C.C.Q., which reads as follows:

127. Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person.

127. In the case at bar, although the Court of Appeal did not at the time have the benefit of art. 1621 C.C.Q., it is apparent from its reasons that its decision on both the appropriateness of awarding exemplary damages and the quantum of those damages was correct, that is, it is consistent with those criteria and with the case law. The relevant factors on which the majority of the court relied include the conduct of the party at fault, the prejudice suffered, the quantum of compensatory damages awarded to the victims, the preventive, deterrent and punitive aspect of the damages, the profit realized by the party who committed the interference and that party’s financial resources. It added that in class actions, the number of victims and their special vulnerability must also be taken into consideration. Applying those tests to the case before it, the court held that the appellants should be condemned to pay the sum of $200,000 as exemplary damages.

128. That conclusion satisfies the appropriate criteria and is amply supported by the evidence in the record, which establishes, inter alia, that despite the injunctions, fines and terms of imprisonment imposed on the appellants’ members, they continued to conduct themselves unlawfully and to disrupt the care and services necessary to the patients of the Hospital. I would note in passing that other forms of punishment imposed on the person who committed the interference should not automatically be a bar to awarding exemplary damages, or reduce the quantum of such damages. The Court of Appeal was divided on this point in Papadatos v. Sutherland, 1987 615 (QC CA), [1987] R.J.Q. 1020; art. 1621 C.C.Q. does not settle this issue since the factors listed therein are not exhaustive. I believe that it would in fact be possible to argue that the other punishments imposed on the person who committed the interference are sufficient, in terms of meeting the objective of exemplary damages, for such damages to be refused, or to justify reducing them; I make no definitive finding on this point, however, since it is sufficient for me to say, for the purposes of the case at bar, that this is by no means the situation here.

129. Finally, it is useful to note that the rule which requires that appellate courts show deference in respect of the calculation of compensatory damages also applies mutatis mutandis to exemplary damages -- particularly since the award of such damages is discretionary: that is, that a "wrong principle of law was applied, or that the overall amount is a wholly erroneous estimate of the damage" (Andrews v. Grand & Toy Alberta Ltd., supra, at p. 235). In the case at bar, having found that the trial judge had erred in law, the majority in the Court of Appeal was correct to intervene and award exemplary damages, having regard to the evidence. Moreover, with respect to the calculation of the appropriate amount, the majority of the Court committed no error of principle, and accordingly the quantum of exemplary damages must be upheld.

130. Before concluding, a number of subsidiary arguments presented by the appellants must be disposed of. First, they challenged the legality of the order of the Court of Appeal that the exemplary damages be remitted to the Public Curator, in his capacity as curator, to be used for the benefit of current and future patients of the Hospital. In their view, the damages should have been paid personally to the members of the group covered by the class action. Moreover, they challenged the decision of the Court of Appeal that interest on the exemplary damages should start to run as of the date of the judgment in the first instance. Having regard to art. 46 C.C.P., which allows the judge to make such orders as are necessary, and art. 1056c C.C.L.C. (in force at the time of these proceedings), which deals with interest on damages (and which, in my opinion, applies to exemplary damages), these arguments have no merit.

131. Lastly, the appellants contended that, because of the punitive and deterrent function of exemplary damages under the Charter, the condemnation could not be joint and several. I see nothing that would prevent joint and several liability operating here, as it does in respect of other kinds of damages. First, all the appellants participated in the unlawful and intentional interference with the right of the patients of the Hospital to their dignity. Second, a joint and several debtor may demand that his or her codebtors pay their respective shares of the total debt, under art. 1117 C.C.L.C. (in force at the time). In my opinion, this disposes of these subsidiary arguments, which are devoid of merit.

V. Conclusion

Conclusion

132. To summarize, on the question of the rules of evidence that apply to class actions, the provisions of Book Nine of the Code of Civil Procedure have not changed the rules of evidence in civil matters and, in particular, proof by presumptions of fact, provided that such presumptions are sufficiently serious, precise and concordant, applies to class actions. Since the trial judge committed no error of law and no error in the conclusions he drew from the evidence on this point, the Court of Appeal was correct not to intervene.

133. With respect to the evaluation of the moral prejudice, although the so‑called functional approach does not apply in Quebec civil law to the determination of the right to moral damages, it is nonetheless relevant, together with the conceptual and personal approaches, when it comes to the calculation of such damages. The decision of the trial judge was sound on this point, and there was nothing therein to warrant intervention by the Court of Appeal.

134. With respect to the exemplary damages contemplated in the Charter, this remedy will be available when there is unlawful interference with a right protected by the Charter, which right is to be largely and liberally defined, and when the interference is intentional, that is, the person responsible for it intended the consequences of the fault he or she committed. On the facts, the Court of Appeal was correct to conclude that the appellants had unlawfully interfered with the patients’ dignity, a right that is guaranteed by s. 4 of the Charter, and that the interference was intentional within the meaning of the second paragraph of s. 49. This Court should not intervene on this point, nor in respect of the quantum of the joint and several award of damages under this head.

135. For these reasons, I would dismiss the appeal, with costs in all courts.

Appeal dismissed with costs.

Solicitors for the appellants: Groleau & Associés, Montréal.

Solicitors for the respondents: Sauvé, Guillot, Montréal.