Punitive damages

If you are an avid reader of our capsules, you already know that when you suffer harm, whether of a bodily, material or moral nature, the law offers you several remedies so that you can obtain compensation for your damage. However, it is useful to know that, depending on the circumstances, you will be able to claim additional sums in the form of punitive or exemplary damages.

In this article, Mr. Lambert explains, using examples from case law, the various particularities of the principle of damages for punitive or exemplary purposes under Quebec law.

What is punitive damages?

In fact, it is an amount that exceeds that awarded to the victim as reparation and whose main purpose is to punish the wrongful and reprehensible conduct of the defendant. It can also serve as a deterrent by establishing an example for others considering acting in the image of the offender.

The general provision for this regime is found in article 1621 of the Civil Code of Québec. It also reflects the legislator’s desire to prevent and discourage undesirable conduct in our society.

It is also in this article that the scales used by the courts to fix the amount that will have to be paid are found. These will be discussed later in the article.

When is it possible to obtain punitive damages?

In the other provinces, punitive damages can be obtained once it has been recognized that a person has indeed committed a fault with respect to others, thereby causing injury.

In Quebec civil law, the cases giving access to this type of sum are considerably more limited. Indeed, the law limits the situations in which such penalties are allowed to be imposed only to the cases expressly provided for by the Law.

The Charter of Human Rights and Freedoms

The purpose of the Charter of Human Rights and Freedoms, also known as the “Quebec Charter”, is to defend our individual freedoms in addition to protecting our most fundamental rights. These include, inter alia, the right to life and dignity, freedom of expression and religion, and protection against all forms of discrimination. One of the ways to achieve this noble goal is therefore to allow penalties to be imposed on persons who contravene the Charter.

Thus, section 49 of the Charter requires anyone who violates the rights and freedoms recognized in the Charter not only to compensate the victim for the harm caused, but also to pay punitive damages in cases where the person would have done so intentionally.

To illustrate this point, let’s discuss a case where a girl abused her mother placed in a CHSLD in order to draw funds from her bank account. Section 48 of the Quebec Charter protects seniors from all forms of exploitation. The girl’s actions therefore violated her mother’s legal rights, which allowed the Court to order the daughter to pay $3,000 in punitive damages.

The Civil Code of Québec

The Civil Code allows punitive damages to be imposed only on landlords.

Article 1899 of the Code, which provides for the punishment of landlords who refuse to rent to women on the pretext that they are pregnant or have children. In addition, punitive damages will also be imposed on any landlord who harasses a tenant or prevents him from peacefully enjoying his dwelling. Finally, a takeover or eviction made in bad faith can also open the door to this type of recourse.

Take as an example a file where a landlord deprived one of her tenants, Mrs. Huynh, of her furniture, clothes and food for several days by changing the lock of her door without giving her a new key. The evidence also showed that the landlord harassed Ms. Huynh several times in order to force her to leave the dwelling. It was established that the tenant in question had not committed any fault and the Court then ordered the landlord to pay $10,000 as punishment for violating the provisions of the Civil Code.

The Consumer Protection Act

The Consumer Protection Act is another example where it is permissible to claim punitive damages. This provision in section 272 makes it possible to sanction any merchant who does not comply with the obligations laid down in the same Act.

It should be noted that all obligations are included, both obligations to make (such as the obligation to inform you of the legal guarantee) and obligations not to make (such as the prohibition to make false representation). The purpose of this rule is to deter merchants from engaging in abusive behaviour that could cause significant harm to consumers .

In fact, in 2012, the Supreme Court awarded punitive damages to a gentleman who was the victim of misrepresentation and misleading advertising by Time magazine in a contest.

In this judgment, the judges clarified section 272 by explaining that it is necessary to prove bad faith or an intention to cause harm. Otherwise, it is also possible to show that the merchant has shown wilful blindness or negligence in the exercise of his wrongful acts.

The amount of punitive damages

Article 1621 of the Civil Code gives judges some freedom when determining the amount of the penalty, while suggesting some elements to consider. These elements are as follows:

• The seriousness of the fault: it is necessary to analyze the wrongful conduct as well as the importance that it had on the infringement of the rights of the victim.
• The defendant’s financial situation: the amount awarded as punitive damages may be higher if the financial situation of the offender is easy, in order to allow the preventive nature of the sanction to be as effective as possible.
• The extent of the compensation already awarded: if the compensatory damages are too insignificant to discourage conduct, the amount of punitive damages may be greater.

In time, cited above, the country’s highest court lists other possible circumstances. For example, the fact that the offender is a company or a Crown corporation may be an aggravating factor. Post-incident history and behaviour will also assist the Court in its analysis.

If you are a consumer whose rights have been infringed, you may have a remedy for punitive damages in a class action. Do not hesitate to contact us for more information.

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