Remedies

• Author: Nathalie Des Rosiers; Louise Langevin
• Pages: 75-225

Chapter

4

Remedies

151.

The

Victim's

Remedies

—

Victims

of

sexual

or

spousal abuse

may

use

several legal avenues. They

may

institute

proceedings

against

several defendants

for

extracontractual civil

liability

pur-

suant

to the

Civil

Code

of

Quebec

(C.C.Q.).

They

may

also

file

a

claim

for

compensation pursuant

to the

Crime Victims

Compensation

Act

(C.V.C.A.)1

or An Act

Respecting

Industrial

Accidents

and

Occupational

Diseases

(A.I.A.O.D.).2

I.

REMEDY

IN

EXTRACONTRACTUAL

LIABILITY

152.

Overview

- By

virtue

of

article

1457

C.C.Q.,

a

victim

who

insti-

tutes

proceedings

for

extracontractual liability must prove

three

essential elements:

fault,

causation,

and

injury.3

Before

analysing

the

conditions

for the

application

of

this

remedy,

we

must first con-

sider

a

preliminary matter:

the

remedy available pursuant

to the

Quebec

Charter

of

Human Rights

and

Freedoms.4

A.

Preliminary Question: Remedy under

the

Quebec

Charter

of

Human

Rights

and

Freedoms

Given

the

Supreme Court's position regarding

the

relationship

between

the

Quebec Charter

and

article

1457

C.C.Q.,

with

the

exception

of

punitive damages,

a

plaintiff

will

not

gain

any

addi-

1.

R.S.Q.,

c.

1-6

(hereinafter

C.V.C.A.).

2.

R.S.Q.,

c.

A-3.001

(hereinafter

A.I.A.O.D.).

See

also S.T.

v.

Gaskell

(1997),

147

D.L.R.

(4th)

730

(Ont. Gen.

Div.).

3.

Although

a

defendant's

capacity

to

judge

his

actions also constitutes

an

essen-

tial element

of

extracontractual liability,

we

will

not

address

this

issue,

because

it

does

not

pose

a

particular

problem

in the

cases relevant

to our

dis-

cussion.

4.

R.S.Q.,

c.

C-12.

75

76 THE

CONDITIONS

FOR

REMEDY

tional advantages

from

basing

a

remedy upon

the

Charter, regard-

less

of

whether

she

relies both

on the

Charter

and the

Civil

Code

or

only

upon

the

Charter.

153.

Interference

with Fundamental Rights

- As we

will see, sexual

or

spousal abuse constitutes

a

fault within

the

meaning

of

article

1457 C.C.Q.

The

abuse also constitutes interference with

the

vic-

tim's

right

to

life,

personal security, inviolability, freedom (section

1),

dignity (section

4), and

privacy (section

5), all of

which

are

fun-

damental

rights

protected under

the

Quebec Charter

of

Human

Rights

and

Freedoms. Therefore,

as set

forth

in

section

49 of the

Charter,

a

victim

can

also exercise

a

remedy based upon

the

Charter. Does

this

mean

that

she can

assert

two

separate

grounds—fault

pursuant

to

article 1457 C.C.Q.

and

unlawful inter-

ference

pursuant

to the

Charter—and

possibly

be

compensated

twice?

154.

No

Right

to

Combine Remedies

- A

victim

may

rely upon

the

Civil

Code

and the

Charter,

but she

will

not be

entitled

to

double

compensation. In Beliveau Saint-Jacques v. F.E.E.S.P.,5 the

Supreme Court decided

that

an

infringement

of a

right protected

under

the

Charter also constitutes

a

civil fault

and

that

the

Charter

does

not

create

a

compensation system

that

is

parallel

to the jus

commune. Therefore,

a

victim cannot rely upon

the

Charter

in

order

to

obtain additional compensatory damages

or

even

a

symbolic

amount

on the

basis

that

her

fundamental

rights

have been

infringed.

However, recourse

to the

Charter

is

still

useful:

a

plain-

tiff

must rely upon

the

Charter

to

obtain punitive damages pur-

suant

to the

second paragraph

of

section

49,

given

that

the

Civil

Code

does

not

provide

for

such damages

and

they must

be

provided

for

by law

(article 1621

C.C.Q.).6

155. Trivialization

of

the

Remedies

- In our

opinion,

by

adopting

the

theory

of an

overlap between

the

infringement

of a

right

protected

under

the

Charter

and a

fault under article 1457

C.C.Q.

in

Beliveau

Saint-Jacques,1

the

highest court opened

the

door

to

triviliazing

remedies under

the

Charter, because plaintiffs will

not be

entitled

to

obtain other compensatory damages, such

as a

symbolic

amount.8

5.

[1996]

2

S.C.R. 345,

405

(Gonthier,

J.)

(hereinafter Beliveau Saint-Jacques).

6.

The

issue

of

punitive damages

is

discussed

in

greater

detail below,

§§317ff.

7.

Above, note

5.

REMEDIES

77

Given

this

decision,

we

will

focus

on

remedies based

on

article 1457

C.C.Q.

However, nothing prevents

a

plaintiff

from

relying solely

on

the

Charter

or

from

relying upon

the

Charter

in

conjunction

with

the

Civil

Code.

Indeed,

the

conditions

for the

remedy

in

extracon-

tractual liability also apply

to an

action instituted under

the

Quebec

Charter.

B.

Fault

156.

The

Various

Defendants

-

Actions

for

extracontractual liability

for

sexual

or

spousal abuse

are

often

instituted against

the

aggres-

sor.

Other persons having been involved

in the

events

may

also

be

sued

as a

result

of

their

wrongful

conduct. These other persons

include professionals

who

have failed

to

inform

the

appropriate

authorities about

the

abuse

and who

have

not

abided

by

their duty

to

report. They

may

also include

the

other parent,

who did not

per-

petrate

the

abuse,

but who hid the

aggression

and

failed

in her

duty

to

protect. Other elements

in the

social fabric, such

as

establish-

ments working with children, child protection authorities, police

and

prison authorities,

and

hospitals,

may

also

be

sued

for

having

failed

to

abide

by

their

duty

to

protect.

In

addition

to

these

defen-

dants,

who may be

held liable

for

their

own

personal fault, there

are

defendants

who are

responsible

for the

faults

of

others; these

may

include

the

employers,

parents,

or

educators

of the

aggressor.

It is

crucial

that

a

victim

be

able

to sue

defendants

for

their

own

per-

sonal fault

as

well

as for the

fault

of

persons

for

whom they

are

responsible;

this

provides

the

victim with

the

assurance

that

she

will

be

able

to

enforce

her

judgment

if the

aggressor

is

insolvent.

Within

the

same vein

of

ensuring

full

compensation

for

victims,

we

will also examine

the

possibility

of

suing

the

insurers

of the

afore-

mentioned

defendants.

1,

Responsibility

for

One's

Personal

Fault

Several people must answer

for

their

own

personal fault.

In

addition

to the

aggressor,

who is

responsible

for the

consequences

of

8. As

regards

the

trivialization

of

remedies under

the

Quebec

Charter,

see

Louise

Langevin,

"Le

harcelement

sexuel

au

travail:

1'impact

de la

decision

Beliveau

Saint-Jacques"

(1997)

9

Revue

Femmes

et

Droit

17;

Ghislain

Otis,

"Le

spectre

d'une

marginalisation

des

voies

de

recours

decoulant

de la

Charte

quebecoise,"

(1991)

51

Revue

du

Earre.au

du

Quebec

561; Maurice Drapeau,

"La

respons-

abilite

pour

atteinte

illicite

aux

droits

et

libertes

de la

personne,"

(1994)

28

Revue

juridiques

themis

31.