McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
Per L’Heureux-Dubé J.:
1. While civil law cannot use the functional approach to determine the right to compensation for moral damage, it can use it to determine the quantum of damages to award.
2. Exemplary damages (based on s.49 of the Quebec Charter) can be awarded “when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause.”
Augustus v. Gosset,  3 S.C.R. 211. (CB1p70)
Gosset, a Montreal police officer, “accidentally” shot and killed Augustus’s son, Anthony Griffin, who was fleeing arrest. His gun apparently went off accidentally when he was pointing it at Griffin, trying to stop him from running away.
1. Was Augustus entitled to “solatium doloris” damages?
2. Should exemplary damages be awarded as per s.49 of the Quebec Charter?
Per L’Heureux-Dubé J.:
1. “Solatium doloris” is an aspect of moral damages, which are compensable under Quebec law. However, the amount awarded has to be in line with jurisprudence in the area.
2. L’Heureux-Dubé J. applied the test she set out in St-Ferdinand, and found that this case did not meet it. She found that Gosset did not intend to kill Griffin, and since the procedures he used were standard police procedures, the consequences could not be seen as “immediate and natural.”
Gosset had been dismissed from the police force but acquitted in a criminal trial.
only under certain conditions
Punishment is the role of the criminal law.
Compensation is the main goal of ECO/T.
Money from exemplary damages should not go to the plaintiff; it should go to society.
Criminal law is federal (division of powers).
Punishment should have criminal law safeguards.
Deterrence is needed in some areas that criminal law doesn’t cover.
Compensatory damages are not always sufficient to deter wrongdoing.
People slip through the cracks of the criminal justice system, or receive insignificant fines.
Corporations (legal persons) can be sued, but not punished for crimes.
Exemplary damages have an indirect (psychological) compensation function.
Perhaps there should be limits on the amount of damages.
Perhaps the money should go to someone other than the plaintiff.
Perhaps distinctions should be made between simple negligence and serious negligence.