CLASS 12 The Relationship between Private Law and Public Law

CLASS 12 The Relationship between Private Law and Public Law

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  Separate regime or just supplement existing regime?
  
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  What was the statue of right before the Charter?
  

-ex: Chapu v. Romain: police disrupted a peaceful meeting of Jehovah’s Witnesses and the court used 1053 CCLC to find officers at fault and liable for damages – defamation, and ordinary principles of civil liability were called upon to repair injuries to dignity, honour, etc.

“Under 1053 the obligation to compesate flows from two essential elements: an injury suffered by the victim, and fault on the part of the author of the delict or quasi-delict. Even if no pecuniary damages is proven, there exists nevertheless, not a right to punitive or exemplary damages which the law of Quebec does not recognize, but without doubt a right to moral damages”.

-SO why did we need a Charter? Because it largely failed in the area of protecting privacy and the right to private life

-it protected physical integrity but couldn’t go much further

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  Moreover, in the K’al sphere, Jukier says the code was clearly insufficient
  

-Whitfield v. Canadian Marcone: employees were forbidden from fraternizing with the native inhabitants: this was upheld by the Court of Appeal

-until 1954, marries women were considered incapable of contracting under 986 CCLC

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  QC Charter is now part of public order: it has a supremacy clause which gives it quasi-constitutional status
  

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  The Charter is not an ordinary statute implemented by the Que. legislature in the same way as any other enactment. It has a special status: it is a fundamental, quasi-constitutional statute of public order that must be given a large and liberal interpretation in order to achieve the general purpose underlying is as well as the specific objectives of its particular provisions.
  
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  The natural of this human rights and freedoms legislation call for a large and liberal interpretation, the s.53 of Charter also ensures that statutes are interpreted in a manner consistent with the rights guaranteed in the Charter.
  

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  it’s application is horizontal (between individuals) whereas Cdn Charter is vertical (individuals – state)
  
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  QC Charter can have vertical applicability to the same extent that 1053 can, but it is designed more as a horizontal tool
  
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  So, how does the code interact with the charter?
  
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  Note: There is a lot of duplication (ex 3, 10, 35 CCQ and 1, 4, 5, Charter)
  
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  So, what’s the difference between saying it in the code or in the Charter?
  

-preliminary provision of the Code says it must be read in harmony with the Charter

This leads us to two questions:

QUESTION 1: Is the Charter an autonomous regime of civil liability?

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  Beliveau says NO: Gonthier says that the Charter does not create a parallel compensation system and cannot authorize double compensation for a given fact situation
  
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  So, in Beliveau, sexual harassment was considered to be a workplace injury and therefore the Act prevented claims in civil liability. Gonthier says this means no claim under QC Charter, either for compensatory or moral damages.
  
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  L’H-D said that there could not be double recovery for compensatory damages, but that there is no reason not to allow the claim for exemplary damages, because theses are something additional. Normal civil liability does not have this function, it is only compensatory, so this is something extra that should not be barred under the statute. (Gonthier says that the exemplary damages are inextricably linked to the civil fault – the statute says you can’t have an action by reason of the injury: this is precisely what an action for exempplary damages is: it’s a civil action by reason of the workplace injury, you can’t separate the two)
  
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  Jukier says why doesn’t L’H-D go all the way with this? Worker’s Statute also doesn’t compensate for moral injuries, only pecuniary, so if you can get exemplary under the Charter, you should also let people claim for moral injuries: there won’t be double recovery because moral damages and exemplary damages are both unavailable uder statute
  
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  the only person who thinks that the Charter should be an autonomous regime is Popovici – he says the abililty to get cessation of the wrongful conduct is another important feature that militates in favour of recognizing it as autonomous
  

Also, can you violate the Charter without causing damage, or is the violation a damage in itself?

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  Gonthier in Beliveau says that the violation of a Charter right is equivalent to a civil fault
  
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  The Charter sets the standard of reasonable conduct in society - these standards are subject to change and qualification over time, and the Charter is one such qualification, so it informs the standard of care under 1457
  
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  the courts never undergo a separate analysis for the two: same thing in the Damas and Duphin case with the figting nurses: a breach of the charter is “ainsi une faute civil”, they say it in the same breath
  
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  even in Aubry, L’H-D pays lip service to the idea that violation will not necessarily equal a fault, and says that the traditional elements of fault, causation and damage must always be established, but she never actually goes through with the fault analysis
  
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  she didn’t ask if the photographer acted reasonably, if he ever tried to get consent, etc.
  
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  Popovici says this is a tautology: A breach of a charter right is a fault because breaching the charter is a fault
  
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  Jukier says the only time this works the other way around (i.e. you breached 1457 therefore you violated the Charter, rather than you violated the Charter therefore you violated 1457) is in defamation
  
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  in defamation, 1457 is used to inform the charter: if you have defamed, you have violated the Charter, instead of Charter informing 1457
  
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  she says it’s because defamation has been around for so long that we keep using the same analysis under the Charter, whereas other rights have received new articulation in the Charter.