BIJURALISM IN SUPREME COURT OF
CANADA JUDGMENTS SINCE THE ENACTMENT
OF THE CIVIL CODE OF QUEBEC
Civil liability is a broad area that has been addressed a number of times by the Supreme Court. In terms of the application of private law, it is the exclusive jurisdiction of the provinces. On a number of occasions, the Court has taken the opportunity to compare the concepts of each legal system according to the specific situations it was dealing with, regardless of the jurisdiction in which the case originated. It tries to draw parallels between the specific concepts in the different legal systems and it occasionally relies on the principles of one to support its position in resolving problems in the context of the other.
The decisions made in the seven years under review with respect to civil liability have essentially dealt with limitation periods, negligence and damages.
The following two decisions address the issue of limitation periods in completely different areas. The first decision gives force of law to the fact that the Civil Code of Quebec applies to all persons in matters falling under private law, including legal persons established in the public interest such as municipalities. The second constitutes a determination of principle, which raises the issue of the "choice of law rule" in matters of private international law and the common law rule whereby limitation periods are a matter of procedure focused on enforceability of rights, rather than substantive rules that extinguish rights, as in the case of civil law.
In Doré v. Verdun (City) the facts of which took place in Quebec, the Civil Code of Quebec prevailed over the Cities and Towns Act (section 585 C.T.A.), which imposed a requirement that a notice be sent within fifteen days of the date of an accident in order to bring an action seeking damages for personal injury against a municipality. Art. 2930 of the Civil Code of Quebec provides that the limitation period in personal injury cases is three years.
Gonthier J. quoted Baudouin J.A., emphasizing that the Civil Code of Quebec is applicable to all persons in matters of private law, even to municipalities, and that its mandatory, public policy nature means that it takes precedence over their specific incorporating statutes as well as those that apply to them:
Thus, the Civil Code of Quebec, like the Charter of rights and freedoms, is a fundamental law. It is the jus commune applicable to everyone, even legal persons established in the public interest. (par. 6)
Gonthier J. indicated that, unlike statute law in common law jurisdictions, the Civil Code is not a law of exception and this fact must be taken into account in its interpretation. It is the jus commune of Quebec, and thus the foundation of the other statutes dealing with matters that it relates to and, in this respect, it must be interpreted broadly so as to favour its spirit over its letter and enable its purposes to be achieved. The Court indicated that a provision in the Code can thereby limit the application of the provisions of particular Acts, even when they apply to municipalities.
Thus, it concluded that
"(p)rescription is essentially a matter of private law" (par. 29) and that the Quebec legislature expressed its clear and specific intention, through art. 2930 C.C.Q., to make this provision mandatory and a matter of public policy.
The decision in Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon deals with the matter of automobile accidents involving residents of different provinces
La Forest J. was of the view that the rule of private international law that should apply in matters of tort liability should no longer be the "choice of law rule" but rather the law of the place where the incident occurred (lex loci delicti). He indicated that, following European tradition, Quebec adopted the lex loci delicti approach in its Automobile Insurance Act and in the Civil Code (art. 6 Civil Code of Lower Canada, now art. 1356 C.C.Q) whereas the common law tradition does not support the territoriality principle, but rather the one whereby courts apply their own laws to wrongs committed in another country (lex fori). He maintained that a strict rule is justified over an optional one given Canada's constitutional situation, and, furthermore, that applying the law of the place where the incident occurred (lex loci delicti) would ensure that an act committed in one place would have the same legal consequences throughout the country, thereby discouraging forum shopping and preserving Canadians' mobility.
On the subject of limitation periods, the judge maintained that they constitute a substantive rule that effectively extinguishes a right, rather than a rule of procedure aimed only at enforceability of the right. Consequently, based on the lex loci delicti rule, limitation periods must be consistent with the law of the place where the tort occurred rather than the law of the place where the court is sitting.
Common law has always considered limitation periods as procedural rules, whereas most civil law countries regard them as substantive. The judge was of the view that the common law doctrine has no place in a modern context, and that the courts have already started to put an end to the myth that they are procedural, and to reduce the application of the common law rule not only in the field of private international law, but in other fields as well.
While limitation periods in matters of civil liability fall under the substantive law of each province, the evidentiary rules governing liability for negligence also vary according to jurisdiction, with some exceptions set by the Supreme Court in the interest of symmetry.
With respect to negligence, the Court briefly emphasized the analogy between the legal systems regarding of certain elements of proof required to determine liability. In particular, it addressed the standard of care and causation. In both of the following cases, which came from common law courts, the Court drew similarities with the principles of civil law that are applicable in the context of decisions made on appeal from Quebec courts.
In Ryan v. Victoria (City) the Court established the principle that railway companies would be bound by the rules governing the jus commune in question of the jurisdiction in the matter of accidents that raised issues of their liability. It specified that these rules were similar and that these companies fell under the jurisdiction of one of the other of the legal systems.
For more than 90 years, railway companies had benefited from a "special rule" at common law which limited the "duty of care" they owed to the public. In other words, as long as they complied with the obligations set out in applicable statutes, regulations and administrative orders, they had the duty only to act in a reasonable manner. But the Court stated that this rule can no longer be justified in principle and that meeting a statutory standard of care can no longer abrogate or supersede the duty to comply with the common law standard of care.
Major J. relied on the decision by Pratte J. in a similar matter applicable in Quebec, Canadian National Railway Co. v. Vincent  1 S.C.R. 364. He indicated that
"Although Vincent arose in the context of Quebec civil law, the reasoning of Pratte J. in that case is instructive, particularly since the common law standard of care is analogous to the requirement of reasonable prudence under the Civil Code." (par. 37)
Pratte J. wrote in that case that, although the railway company had complied with the special statutory and regulatory provisions to which it was subject, this did not exempt it from the ordinary law of civil liability, which is to say it could be found guilty of negligence under the Civil Code.
Major J., who delivered the judgment for the majority in the case at bar, came to the same conclusion. He stated that compliance with a statutory standard of care does not abrogate or supersede the duties of railway companies to comply with, here, the common law standard of care for negligence. The railway company had to prove that it had acted as a reasonable and prudent person would have under similar circumstances.
Arndt v. Smith is the case of a medical malpractice suit in which there was a failure to properly inform a pregnant patient who had contracted chicken pox while pregnant of the risks to her fetus. This case was an appeal of a judgment by the British Columbia Court of Appeal. The majority of judges found that, in order to establish negligence, it was necessary to apply a combination of objective and subjective factors in order to determine whether the failure to inform had actually caused the harm. They relied on a modified objective test set out in Reibl v. Hugues  2 S.C.R. 880. This test requires that the court consider what a reasonable patient under circumstances similar to those of the plaintiff would have done if faced with the same situation.
McLachlin J. was of the view that the issue of causation had to be resolved in light of the patient's "subjective" belief as to the course she would have followed if she had been informed, which includes objective elements such as her situation and her attitude at the time when she made her decision and the medical advice she was given at that time.
She cited Gonthier J. in Laferrière v. Lawson  1 S.C.R. 541, an appeal from Quebec, and specified that although this ruling arose in the context of civil law, Gonthier J., writing for the majority, made extensive reference to the common law, suggesting that the principles discussed may be equally applicable in other provinces. Gonthier J. indicated that, in civil law, causation
"must be established on the balance of probabilities, taking into account all the evidence: factual, statistical and that which the judge is entitled to presume" (par. 43, Laferrière v. Lawson, at 609).
However, even if establishment of the elements of liability for negligence is an area where comparisons between the two legal systems can easily be made, the same cannot be said about damages for economic and non-economic losses, where there are some difficulties of principle.
The common law courts have always been somewhat reluctant to recognize compensation for economic loss arising from negligence by a third party, or compensation for non-economic losses that arise to the victims of negligence indirectly. On the one hand, the courts have been of the view that economic interests did not warrant the same protection as did the human body or property, and on the other hand, non-economic losses were simply not recoverable under traditional common law principles. In civil law jurisdictions, in France as well as in Quebec, there is no such distinction of principle linked to compensation, since compensation in integrum is the rule. Thus, the law does not make a distinction between the types of damages and compensation depends only on proof of the existence of fault, loss, and a causal link between these two elements.
In terms of exemplary damages, it is the civil law that has historically been resistant towards them, since the punitive and deterrent effect of this compensation more properly falls under criminal liability. However, Quebec civil law has recently opened the door to this type of compensation, albeit in a more limited manner. The common law has no reluctance to award exemplary damages.
The following decisions examine these principles in different contexts, specifically in maritime law, and show how they are applied, depending on the jurisdiction. The Court also discussed other rules, which were subsidiary to the main issue, and analyzed them according to the different legal systems.
The decisions listed are grouped into two categories, that of economic loss suffered as a result of damage to the property of a third party (contractual relational economic loss) and that of non-economic and exemplary damages.
2.3.1 Damages for economic loss suffered as a result of damage to the property of a third party (contractual relational economic loss)
Bow Valley Husky (Bermuda) LTD. v. Saint John Shipbuilding deals with a claim for damages for economic loss suffered as a result of the shutdown of a rig for repairs required after a fire that was caused by third parties. The appeal also raised the issue of principles applicable to contributory negligence in maritime law as well as to the rules of joint and several liability and contribution in terms of recovery.
McLachlin J. stated that economic loss suffered as a result of damage to the property of a third party, frequently referred to in common law as contractual relational economic loss, has traditionally been considered as generally not giving rise to compensation.
She proceeded to do a comparative review of the different legal systems. In England, such compensation can never be awarded, whereas:
In the civil law jurisdictions of Quebec and France, by contrast, the law does not distinguish between loss arising from damage of one's own property and loss arising from damage to the property of another. If civil law judges restrict recovery, it is not as a matter of law, but on the basis of the facts and causal connection. (par. 44)
She indicated that the law in the common law provinces of Canada falls somewhere between these two extremes. While treating recovery in tort of contractual relational economic loss as exceptional, there are cases in Canadian jurisprudence where it has been accepted that it may be recovered. The leading case on this point is Canadian National Railway Co. v. Norsk Pacific Steamship Co.  1 S.C.R. 1021, which recognizes that if the person claiming the damages was in a joint venture with the person whose property was damaged, the plaintiff may claim consequential economic loss flowing from that damage.
The Court applied the tests established by the case law. It concluded that a duty of care arose between the parties because the link between them was close enough that the defendants could anticipate that the plaintiffs would suffer loss if the rig ceased to operate. Consequently, the defendants had the duty to warn the claimants about the use of the product that caused the fire. However, the Court held the defendants not liable since, if they had the duty to warn of the risk, they would be faced with a deluge of lawsuits, which could be initiated by an unlimited number of persons. The Supreme Court has always viewed the impossibility of delimiting the number of potential plaintiffs as a bar to the finding of liability in tort cases.
On the question of whether contributory negligence is a bar to recovery, the Court was of the view that this issue fell under maritime law and so should be settled in accordance with maritime law rules under the exclusive jurisdiction of Parliament, since that area of law is not within the jurisdiction of the provinces.
The Court specified that, in the absence of federal legislation concerning contributory negligence in matters of maritime torts, as in the case at bar, the common law principles embodied in Canadian maritime law remained applicable. This was an appropriate case for making incremental change to the common law in compliance with the requirements of justice and fairness, in order to
"keep the maritime common law in step with the dynamic and evolving fabric of our society." Thus, the Court concluded that there was no reason to maintain the principle of contributory negligence as a bar to recovery. The common law provinces of Canada as well as Quebec (art. 1478 C.C.Q.) have abolished this rule in respect of non-maritime torts and have replaced it with a rule of apportionment. In England, Australia and the United States apportionment is the rule in matters of maritime tort.
The Court also introduced a change in the common law for maritime torts in connection with apportionment of damages. It pointed to the rules of joint and several liability applicable to the defendants, subject to the rights of each of them to seek contribution from the other in the case of payment of an amount greater than that corresponding to its degree of fault. These principles are also consistent with legislation in most of the provinces and with the Civil Code of Quebec (art. 1523 and 1526 C.C.Q. for joint and several liability and art.1536 C.C.Q. for contribution).
The following decisions deal with compensation for non-economic losses, in particular compensation for loss of guidance, care and companionship, in maritime law and other contexts. The Court's willingness to recognize certain non-economic losses in common law should be noted, since this is more consistent with the civil law tradition than with English law.
The issues raised in these decisions are the powers of testamentary executors in the case of maritime accidents resulting in death, losses flowing from loss of life or life expectancy, the rights of parents and the evidentiary principles applicable to class actions for civil liability. They also constitute leading cases in the area of exemplary damages, which are now recognized in Quebec.
At issue in Ordon Estate v. Grail were damage claims stemming from injuries and death suffered by pleasure boat occupants in boating accidents.
The Court observed that maritime law constitutes an autonomous body of federal law based on English admiralty law of 1934 as subsequently amended by Parliament and Canadian case law. That law applies uniformly to all provinces and it is not constitutionally acceptable to refer to provincial statutes in maritime negligence actions. The Court held that maritime law must nevertheless follow the evolution of society as the civil law and common law have done.
The Court found that English maritime law (incorporated into Canadian maritime law in 1934, as noted) was an amalgam of principles deriving in large part from both the common law and civil law traditions and that, although most of the rules of maritime law, including those of tort, are founded upon English common law, it is advantageous to take into account the experience of other countries, in particular those of civil law jurisdiction.
Thus the Court held that although, historically in common law, damages awarded for fatal accidents were for pecuniary losses only and non-pecuniary losses were not recoverable, the courts should change these rules to permit this type of action. The Court found that the non-statutory rules should be amended to keep maritime law in step with modern understandings of fairness and justice so that dependants may be compensated for loss of guidance, care and companionship of a spouse, father or mother, child or other person who has been killed or injured in a boating accident.
It was also the Court's view that Canadian maritime law should be reformed to allow an executor to bring an action in the name of the deceased that the deceased could have brought had he or she lived. It noted that this change was readily justified since all common law provinces had adopted statutory measures to this effect, the Civil Code of Quebec had long since made such provision (articles 596 and 607 C.C.L.C., now article 625 C.C.Q.), and the practice is common in common law and civil law countries around the world.
Augustus v. Gosset  3 S.C.R. 268 had its origins in Quebec in the death of a 19‑year old black youth who was shot by a police officer. The victim's mother claimed compensatory damages for solatium doloris (consolation of mental anguish) under articles 1053 and 1056 C.C.L.C. and damages for loss of life expectancy under sections 1 and 49 of the Quebec Charter of Human Rights and Freedoms. The Court alternatively considered whether it was appropriate in this case to award exemplary damages in accordance with the principles enunciated in Quebec (Public Curator) v. Syndicat national des employés de l`hôpital St‑Ferdinand  3 S.C.R. 211 (discussed below).
L'Heureux-Dubé J., writing for the Court, described the origins of solatium doloris in Quebec civil law and emphasized that the concept was no longer disputed before the Supreme Court. She confirmed that, with respect to non-economic losses in Quebec, reference must be made to French law, not English law, and that, unlike the common law, the civil law grants compensation to an indirect victim for non-economic losses resulting from a person's death. The Court noted that, in civil law, any loss, whether pecuniary or not, is compensable if it is proven that an injury was suffered by the victim and there was fault on the part of the tortfeasor.
The Court specifically states that solatium doloris is a type of compensable non-economic loss and that it includes all losses that at civil law are considered "extrapatrimonial", both immediate grief and the loss of future companionship, resulting from the death of a loved one.
To date, the Quebec courts, believing themselves bound by the rule that solatium doloris did not constitute a compensable loss (following the historic judgment in Canadian Pacific Railway Co. v. Robinson (1887) 14 S.C.R. 105), have not been inclined to award compensation for all losses suffered. The Court noted the striking differences that exist between the non-pecuniary damages awarded in certain situations and the usual award to parents of a child who loses his or her life owing to the fault of a third person.
The Court's judgment in Robinson concerned the uniform application in Canada of the non-recovery for solatium doloris rule and reflected the traditional common law reluctance to recognize non-pecuniary losses. This decision, which has been characterized as a historical error, but one that is no longer relevant today given the absence of a provision equivalent to article 1056 C.C.L.C. in the Civil Code of Quebec, has nevertheless left its mark on most of Quebec jurisprudence. Despite the prior and contemporaneous Quebec judgments that had held that damages could be awarded for solatium doloris, most Quebec courts have long refused to acknowledge this as a ground for compensation, instead making awards for the pecuniary consequences of grief such as loss of companionship or deterioration of health due to a person's death.
And yet the Court emphasized that French law has always recognized that non-economic losses resulting from the death of a relative were compensable. Belgium and Scotland have also adopted the principle as well as a number of common law jurisdictions, including certain states in Australia and the United States.
Elsewhere in Canada, in the common law jurisdictions, the right to claim damages for the death of a third party is provided for by specific statutes, which are interpreted as covering only pecuniary damages. Compensation for non-pecuniary losses is provided for in certain statutes, in particular in Alberta and New Brunswick.
However, the Court emphasized that Quebec courts, like those of the other provinces of Canada, have always refused to recognize the losses suffered as a result of loss of life or life expectancy as granting entitlement to compensatory damages. Since the "right to life" has been interpreted as ending at death, it is inalienable.
Compensation for violation of parental rights, that is to say the right to maintain and continue a parent-child relationship, was also rejected by the Court since this right is recognized in neither the Canadian Charter of Rights and Freedoms nor the Quebec Charter of Human Rights and Freedoms.
As for exemplary damages, the Court concurred with the Court of Appeal's judgment refusing to award such damages on the ground that unlawful interference with the right to life, protected by the Quebec Charter, had not been committed intentionally within the meaning of the second paragraph of section 49 of the Charter. The Court of Appeal had held that the only interpretation of the term "intentional" that could be accepted, in view of the historical context and specificity of the civil law, is that the interference was actually intentional, which does not encompass reckless or negligent interference. The notions of "unlawful and intentional"
interference are interpreted in Quebec (Public Curator) v. Syndicat national des employés de l`hôpital St‑Ferdinand (above), which the Court considered in this case. For the interference to be characterized as unlawful and intentional, the person who commits the unlawful interference must have
"a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or […] acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause". (par. 77, St‑Ferdinand, par. 121)
In this case, the Court held that the interference was not intentional and that using a weapon to keep a suspect under control at a distance was standard police practice, the consequences of which in this case could not be characterized as "immediate and natural" or even as "extremely probable".
Béliveau St‑Jacques v. Fédération des employées et employés de services publics Inc.  2 S.C.R. 345
In Béliveau St‑Jacques v. Fédération des employées et employés de services publics Inc., the Court had to determine whether a victim of harassment in the work place who had received compensation under the Act respecting industrial accidents and occupational diseases (section 438 AIAOD) for having suffered an employment injury related to the events could also bring an additional civil liability action based on the Quebec Charter of Human Rights and Freedoms (section 49). The Court considered the case of compensatory damages and exemplary damages.
Gonthier J., writing for the majority, found that a civil liability action under section 49 of the Charter did not deviate from the jus commune in this matter. He held that the Charter does not afford a new remedy, either compensatory or exemplary; it constitutes an overlap with the jus commune and, in that sense, does not allow double compensation for the same fact situation. The AIAOD provides for an exclusive compensation scheme similar to that of British Columbia and other Canadian provinces. It is a statutory insurance scheme of no-fault collective liability, which replaces the former systems of individual civil liability based on fault. Its main purpose is compensation and thus final settlement of claims.
L'Heureux-Dubé J., dissenting in part, agreed that the no-fault compensation scheme constituted by the AIAOD shares the same compensatory purpose as the first paragraph of section 49, even if the AIAOD compensates the victim only partially (inter alia because compensation for non-economic losses does not appear possible under the act). She concluded, as did her colleague on this point, that the AIAOD does not permit the existence of a parallel compensation scheme. In her view, however, there is no overlap between the exemplary damages provided for in the second paragraph of section 49 and the AIAOD and the general legal framework. The punitive, deterrent damages under section 49 would thus be available to the victim, in L'Heureux-Dubé J.'s view, if there were proof of the elements of liability stemming from the general principles of civil law liability (under article 1053 C.C.L.C., today article 1457 C.C.Q.)—that is, fault, loss, and causation—as well as the "unlawful and intentional" nature of the interference with the right contemplated by the second paragraph of section 49.
The Supreme Court bench agreed that the concept of exemplary damages has always been foreign to the civil law. Under the Civil Code of Lower Canada, now the Civil Code of Quebec, the system of delictual liability is confined to the compensatory aspect of liability, and compensation is based on the loss suffered and the earnings lost. Punishment and deterrents fall within the domain of criminal liability.
However, like the common law jurisdictions, the Quebec legislature has recently permitted exemplary damages to be awarded in certain cases. According to article 1621 C.C.Q., exemplary damages may be awarded, on certain conditions, under certain specific social statutes. However, this type of remedy has not been raised to the level of general principle and remains an exception in Quebec civil law. France has categorically rejected the notion of exemplary damages since the seventeenth century. Compensation for loss is still the only recognized goal of damages in that country.
Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St‑Ferdinand  3 S.C.R. 211
In Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St‑Ferdinand, the Court found that the inconvenience caused by the illegal strikes by employees of the Hôpital St‑Ferdinand in Quebec constituted a moral prejudice under the general rules of civil liability, but also interfered with the patient's "dignity", a right recognized by the Quebec Charter of Human Rights and Freedoms (R.S.Q., c. C‑12, article 4). More particularly, the Court considered the rules of evidence applicable to class actions, the evaluation of non-economic loss and the award of exemplary damages under the Quebec Charter.
L'Heureux‑Dubé J., writing for the Court, held that the basic principles of evidence in civil matters are applicable to every civil law action in Quebec, including class actions. Fault, loss and causation must be proved on the balance of probabilities for all the members of the group bringing the action. The Court emphasized that the Code of Civil Procedure provided no exception to these principles, as Book Nine merely adapts to class actions the ordinary rules of bringing an action.
The Court held that proof by presumption, that is to say indirect or circumstantial proof, is completely recognized in the civil law tradition and applies to class actions as it does to any other civil action. It found that, in Quebec, as in France, two types of presumption are recognized: legal presumptions, which are established by the legislator, and presumptions of fact, which are left to the discretion of the court (article 1238 C.C.L.C., now article 2846 C.C.Q.). In Quebec, however, the courts have required that presumptions of fact be significant, precise and corroboratory.
With respect to non-economic loss, the Court referred to the trilogy Andrews v. Grand & Toy Alberta Ltd.  2 S.C.R. 229, Arnold v. Teno  2 S.C.R. 287, and Thornton v. Board of School Trustees of School District No. 57 (Prince George)  2 S.C.R. 267, and to its decision in Lindal v. Lindal  2 S.C.R. 629, which was added subsequently. These cases established the principles of compensation for non-economic loss and the method for computing damages.
In Andrews, Dickson J. described three methods for analyzing non-pecuniary losses. First was the "conceptual" approach, which treats each human faculty "as a proprietary asset with an objective value, independent of the individual's own use or enjoyment of it". French law favours this evaluation method in practice and Quebec jurisprudence is replete with examples of this kind.
Second, the "personal" approach values the injury in terms of the loss suffered, and compensation is based on a subjective evaluation of the pain and inconvenience caused by the injuries suffered by the victim. In Quebec, this approach is sometimes used to determine the extent of moderate and minor losses.
Lastly, the Court's "functional" approach assesses the compensation required to provide the injured person "with reasonable solace for his misfortune". This approach was adopted in the specific circumstances of each of the cases of the trilogy cited above as well as in Lindal. In Quebec, writers do not agree as to whether this approach should be applied and the courts are not inclined to use this method of calculation which the common law jurisdictions appear to favour.
In the case at bar, L'Heureux‑Dubé J. chose to divide the question in order to consider it first from the standpoint of justification for the right to compensation for non-economic loss, then from that of evaluation of that loss. With respect to justification for the right to compensation, L'Heureux‑Dubé J. held that the objective conception of loss should be adopted in civil law since it is much more consistent with the fundamental principles of Quebec civil law. The purpose of the system of civil liability in Quebec is to compensate loss fully (restitutio in integrum), which means that there will be compensation for loss suffered on account of wrongful conduct, regardless of whether the victim is able to derive any enjoyment from it, or is even aware of it (compensation for non-economic loss is expressly provided for in article 1457 C.C.Q.). The subjective conception of compensation for moral prejudice has no place in civil law since it is conditional on the victim's ability to benefit from pecuniary compensation. L'Heureux‑Dubé J. held that, on this point, the applicable rule in civil law might be different from that prevailing in common law, but she found there was no reason to decide the matter in this case.
As to evaluation, L'Heureux‑Dubé J. contended that the three approaches complemented each other and should apply jointly and thereby encourage a personalized evaluation of the non-economic loss. Although Quebec courts had not uniformly adopted the "functional" method, in her view, it was apparent from Quebec case law and doctrine that there was an interaction among the three evaluation methods. She concluded that the "functional" approach, as defined in the trilogy and Lindal, should be used to determine the quantum of damages for non-economic loss. In support of this conclusion, she cited Dickson J. in Andrews, supra, at 262, indicating that this method seeks to calculate the
"physical arrangements that can make the victim's life more endurable […] accepting that what has been lost is incapable of being replaced in any direct way."
Considering exemplary damages, L'Heureux‑Dubé J. found that the inconvenience caused by the employees' illegal strikes constituted not only non-economic loss under the general rules of civil liability (article 1053 C.C.L.C., now article 1457 C.C.Q.), but also "unlawful and intentional" interference with the hospital patients' right to dignity within the meaning of the second paragraph of section 49 of the Quebec Charter, a right protected by section 4 of the Charter.
The interference was "unlawful" because the losses suffered by the patients resulted from wrongful conduct under article 1053 C.C.L.C. A person's conduct is characterized as wrongful if he or she violates a standard of conduct considered reasonable in the circumstances or a standard set out in the Charter. The same reasoning was followed by Gonthier J. in Béliveau St‑Jacques v. Fédération des employées et employés de services publics Inc. (above, par. 120).
Interference is "intentional" when the person who commits it knows and desires its result. This is not a traditional civil law notion of "gross negligence" which encompasses the simple negligence or recklessness of the person who commits it. Like Gonthier J. in Béliveau St‑Jacques v. Fédération des employées et employés de services publics Inc., above, par. 126, L'Heureux‑Dubé J. explained that this is so because exemplary damages under the Charter are, as in common law, intended to punish and deter certain conduct rather than compensate as the new article 1621 C.C.Q. moreover provides.
Canadian courts recognize that compensation in civil liability actions must adapt to the necessities of modern life. Family law is also subject to this imperative, in addition to the significant changes under way in marital life and the increasing mobility of individuals. The international conventions to which Canada is a party already reflect this reality.
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