Curateur v. S.N.E. de l’Hopital St Ferdinand, [1996] 3 S.C.R. 211

Curateur v. S.N.E. de l’Hopital St Ferdinand, [1996] 3 S.C.R. 211.

• 
  SCC in trilogy cases established a functional approach to evaluate the moral damages. However, Quebec civil law rejected this approach.
  
• 
  As per Baudouin, the functional approach is inconsistent with civil law and tradition.
  

1. 
   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.
   
2. 
   In the civil law, the prejudice must be compensated b/c there has been interference with a legitimate patrimonial or extra-patrimonial right, and not b/c there is a material way of alleviating the inconveniences of that interference.
   
3. 
   The compensation is owed b/c there has been a loss, and not b/c the victim may hope to secure substitute pleasure.
   

• 
  The traditional justification in civil liability for remedying a prejudice stresses the compensatory function of the damages: restitutio in integrum.
  
• 
  The right to compensation for moral prejudice is not conditional on the victim’s ability to profit or benefit from monetary compensation.
  
• 
  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 b/o the wrongful conduct, regardless of whether the victim is capable of enjoying the substitute pleasure.
  
• 
  The objective conception of moral prejudice is much more consistent with the civil law, the purely subjective conception has no place in the civil law. The victim’s condition or capacity to perceive are irrelevant in relation to the right to compensation for the moral prejudice.
  
• 
  The method of calculating moral damages: 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.
  

Augustus v. Gosset, [1996] 3 S.C.R. 268 (edited).

1. 
   Can the victim’s mother obtain compensatory damages for solatium doloris under arts. 1053 and 1056 (now 1457 CCQ), or for interference with her parental rights under ss. 1, 39, 49 of charter?
   
2. 
   Does the appellant have a right as her son’s heir to obtain compensatory damages for his loss of life under ss. 1 and 49 of the Charter?
   
3. 
   Does the appellant have a right to exemplary damages?
   

1. 
   Solatium Doloris: Compensation for the grief and distress felt when someone close dies (solatium doloris) is consistent with the civil law’s full recognition of moral damages. Hence Solatium Doloris is a compensable head of moral prejudice. Despite the singular difficulty in assessing moral prejudice, such prejudice can in theory be recovered so far as it is proven. From this perspective, important to develop parameters of assessment which are sensitive to particular circumstances and do not ignore limits of restituo in integrum in which moderation must be fostered. Awards also needs to be predictable.
   
2. 
   Right of parenthood: Neither does the Charter of Rights and Freedoms nor the Quebec Charter protect the right to maintain a parent-child relationship.
   
3. 
   Loss of Life or of life expectancy: the right to life is extinguished when the victim dies, hence it does not become part of a victim’s patrimony and cannot be transmitted to heirs: No compensation.
   
4. 
   Exemplary damages: Interference with the right to life of victim was not “intentional”. There is intentional interference when the person who commits the interference has a state of mind that intends the consequences.