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The tragic case of a father killing his estranged family, then himself, underlies the Supreme Court of Canada’s ("SCC") recent decision in de Montigny v Brossard (Succession), [2010] 3 SCR 64. In this case, the SCC allowed punitive damages in the absence of a deterrent effect. This case marks a turning point in how courts are to rationalize punitive awards.
It is unnecessary to dwell on the specific facts of this murder-suicide. All that is necessary to know is that the heirs of the deceased brought an action for civil liability against the father’s succession, claiming compensatory and punitive damages. Both the Quebec Superior Court and Court of Appeal refused to award compensation for the mother’s pain, suffering and loss of expectation of life because evidence showed that she died almost instantaneously. The seemingly arbitrary nature of abstract legal tests for different heads of damages is illustrated in the rule relied upon by the lower courts. A court cannot award compensatory damages unless the two part test outlined in Pantel v Air Canada, [1975] 1 SCR 472, was satisfied: first, a sufficiently long period of time must elapse between the wrongful fact and the death; and second, the victim must have actually felt pain. The rationale for this test was discussed in Driver et al. v Coca Cola Ltd., [1961] SCR 201, which held that damages suffered by a victim passes onto his heirs, but the shortening of life cannot be included in damages because it is caused by the death. If death is instantaneous, the victim did not suffer, and thus the heirs cannot claim damages for pain and suffering, when the victim obviously did not suffer.
Trudel J. for the Quebec Superior Court also held that punitive damages could not be awarded because they are “incidental” to an award of compensatory damages for moral or material prejudice. This second rule originates from the SCC’s decision in Béliveau St‑Jacques v Fédération des employées et employés de services publics inc., [1996] 2 SCR 345 [Beliveau St-Jacques]. Like the case at hand, Beliveau St-Jacques involved a claim for punitive damages based on s. 49 of the under the Quebec Charter of Human Rights and Freedoms, RSQ, c C-12 [Quebec Charter]. In that case, the majority (5-2) held that an action for punitive damages based s. 49 of the Quebec Charter cannot be dissociated from the principles of civil liability. Such an action can only be incidental to a principal action seeking compensation for moral or material prejudice. It is for that reason that the absence of compensatory damages meant that the heirs could not get punitive damages. Trudel J. also noted that punitive damages could not be awarded because the death of the father, the wrongdoer, meant that there was no deterrent component to the award.
Rays of Light at the End of this Dark Tunnel
Although the SCC stuck to the original amounts of damages awarded, it did take a progressive step forward and hold that the heirs could receive punitive damages despite the death of the wrongdoer.
LeBel J. writing for the unanimous SCC distinguished Béliveau St‑Jacques on the basis that it was a case involving a public compensation system. He wrote,
Outside that context, there is no reason not to recognize the autonomous nature of exemplary [or punitive] damages and thus give this remedy the full scope and flexibility that its incorporation into the [Quebec] Charter demands. I note that the [Quebec] Charter’s quasi‑constitutional status means that it prevails over general legal rules in the Quebec normative order. If the autonomy of the right to exemplary damages conferred by the [Quebec] Charter is denied by imposing on those asserting it the additional burden of first proving that they are entitled to bring an action that they may not necessarily wish or be able to bring, this amounts to making the implementation of [Quebec] Charter rights and freedoms subject to the rules applicable to civil law actions. There is no justification for maintaining this obstacle.
In addition to disentangling punitive damages from compensatory damages, the SCC also broadened the scope for rationalizing punitive damages. The latter type of damages is designed to demonstrate society’s disapproval of a person’s conduct, and thus focuses on an assessment of the conduct as opposed to the extent to which compensation is required for reparation or actual prejudice. LeBel J. criticized the Quebec courts’ approach to punitive damages as being “strict” and “narrow” and failing to recognize the broader function of such damages: punishment, deterrence and denunciation. At paragraph 53, denunciation is recognized as an objective of exemplary damages in Quebec civil law.
Having expanded the functions of punitive damages, the SCC then held that punitive damages should be awarded because the father intentionally and unlawfully interfered with his family’s right to life under the Charter.
In the greater scheme of life, the SCC’s decision will not bring back the innocent lives lost. It will not restore the families who have been broken by this tragedy. Nonetheless, the SCC’s progressive expansion of the functions of punitive damages does have some significance. This development, albeit, relatively trivial in an objective sense, marks a legal triumph infused with sentimental value, over the abstract and seemingly arbitrary lines that delineate between liability and no liability.
3 Comments
Hello Christine,
"It is unnecessary to dwell on the specific facts of the murder(s)-suicide".
Examination of the details, as these relate to the pain and suffering of the victims, is necessary since there is no guarantees that these deaths by strangulation (former spouse) or drowning (two children) was immediate. Did the Forensic pathology examinations conclusively prove all these victims had an "almost instanteous" and painless death? Was the "almost instanteous" death referring to death by strangulation and/or by drowning? Were both children drown simultaneously? Isn't strangulation considered a blunt force injury? As well, delayed deaths have been reported in cases of strangulation and drowning. The only witness to the final horrific moments of life, for these innocent victims, took his own life. In this ruling, I do not feel the elapse of time between these wrongful acts (cowardly violence against two children and their mother) and the degree of pain and suffering that each victims endured, prior to death, was adequately addressed.
What preventative objective can be achieved when the combined value (punitive damages) resulting from these tragic murders seems worth so little? Does this ruling go far enough to denunciate this violent behavior against women and children? I fear my eye sight must be failing as I do not see the light at the end of the tunnel for the most vulnerable members of our society.
Hi Diane,
Thank you for your response. If you read the SCC's decision, then you will see that the SCC described the nature of the deaths in greater detail than I did. For the purposes of discussing this new development in regards to punitive damages I felt it was unnecessary to repeat the details of this tragedy. If you are interested in learning more about the details, then you can see paragraphs 6 and 10 at http://scc.lexum.umontreal.ca/en/2010/2010scc51/2010scc51.html. As for your question regarding forensic evidence, at paragraph 10 the SCC noted that "it appeared that Liliane, who became unconscious a few seconds after being attacked by Martin, had not regained consciousness before she died...[H]er death was almost instantaneous".
While it may seem as though the punitive damages award is small, it must be remembered that damages awards in Canada are relatively smaller than that in the U.S. The SCC's decision in this case is noteworthy because it allows for damages in situations where there can be no deterrent effect or punishment. That is not to say that the decision has diminished the ability of punitive damages to deter or to punish. Instead, the decision is expanding the scope for damages.
Hello Christine,
When I read this case I was concerned that compensation in the form of reimbursement for funeral expenses was denied because the court ruled that not enough time had elapsed, following the violent acts, to consider that the victims had suffered pain (two part test). Why isn't the compensatory damages based on the fact that the family was violently murdered?
The SCC decision mentioned an autopsy report but there was no indication if any of these victims suffered any pain in trying to defend themselves (in particular, the 10 and 13 year old children)?
I wish the court's decision had included compensation to the heirs to cover the family's funeral expenses.