Canada: Solidary Responsibility When There Are Several Defendants, Faults, And Injuries: Playing Short-Handed?

Introduction

Should rioters be held solidarily liable for the whole of the damage done to a patrol car, whether because they had "jointly taken part in a wrongful act" within the meaning of article 1480 C.C.Q. (''Civil Code of Québec''), or because there was a "common fault" or "contributory fault" within the meaning of article 1526 C.C.Q.?

The Supreme Court of Canada had to consider these questions in Montréal (Ville) v. Lonardi,1 a case in which the Ville de Montréal (the "City") sought to have the rioters (each rioter being a "Defendant", and collectively the "Defendants") held solidarily liable to make reparation for the whole of the damage to the patrol cars belonging to the City's police department. Both at trial and on appeal, the courts held that the Defendants should not be condemned on a solidary basis, since the evidence made it possible to link each of the faults to a specific injury, and since, moreover, there was no "common intention" among the Defendants, with the result that there was no possibility of that they "jointly took part in a wrongful act" within the meaning of article 1480 C.C.Q.

Facts

During the 2008 National Hockey League playoffs, the Montréal Canadiens won a decisive seventh game against the Boston Bruins at the Bell Centre in Montréal. After the game, the crowd celebrated in downtown Montréal. Over the course of the evening, the celebration deteriorated and became a riot. During the riot, a number of patrol cars belonging to the City's police department were vandalized, and nine were total losses.

With the help of photographs and videos of the evening, it was possible to identify a number of rioters. The City instituted ten separate actions in the Court of Québec: one action per damaged vehicle. Each action was brought against the rioters who had damaged the vehicle to which the action in question related. In addition, in each action, the City sought to have the Defendants held solidarily liable.

Decision at Trial

In six of the 10 cases, Justice Coutlée J.C.Q. ordered each defendant to repair the specific damage caused to each patrol car by his own acts and refused to find them solidarily liable.

Given that the Defendants did not know one another before the riot, had never been in communication, and had committed distinct acts of mischief at different times over the course of the evening, of which the other Defendants had no knowledge, Justice Coutlée, J.C.Q. concluded that they had not "jointly taken part in a wrongful act" within the meaning of article 1480 C.C.Q. In the Court's opinion, there could be no joint commission without a common intention, even a tacit one.

In addition, since each person who committed the various injuries could be identified from the evidence, the Court concluded that there was also no "common fault" within the meaning of article 1526 C.C.Q. In those circumstances, the Defendants could not be held solidarily liable.

Decision of the Court of Appeal

The City appealed the six judgments in which the defendants were not held solidarily liable. The Court of Appeal upheld the judgments. In the opinion of the Court of Appeal, the solidary liability provided in articles 1480 and 1526 C.C.Q. applies only where there is a single injury and, moreover, that article 1480 C.C.Q. necessarily requires that it be impossible to determine which fault caused the damage. Because the evidence in this case made it possible to link each fault by each defendant to specific damage for each patrol car in question, solidarity should not be imposed.

Decision of the Supreme Court

The City appealed to the Supreme Court. In the City's submission, both the Court of Québec and the Court of Appeal erred in their interpretation of what constitutes "jointly taken part in a wrongful act" and a "common fault". In addition, the City argued that under article 1480 C.C.Q., solidarity exists when the defendants jointly take part in a wrongful act, regardless of whether it is possible to determine which Defendant actually caused the injury. At the stage of the appeal to the Supreme Court, the City added an alternative argument: that the Defendants should at least be held liable on an in solidum basis.

The Supreme Court dismissed the City's appeal, with one dissent. The Court concluded that articles 1480 and 1526 C.C.Q. did not apply to the facts of the case.

In the majority reasons, written by Justice Gascon, the Court held that the solidarity provided in article 1480 C.C.Q. requires that it be impossible to determine which person actually caused the injury, whether in relation to persons who jointly took part in a wrongful act or to a "common fault". Article 1480 C.C.Q. reads as follows:

1480. Where several persons have jointly taken part in a wrongful act which has resulted in injury or have committed separate faults each of which may have caused the injury, and where it is impossible to determine, in either case, which of them actually caused it, they are solidarily liable for reparation thereof. [Emphasis added.]

In the opinion of Justice Gascon, the expression "in either case" must be interpreted as referring to the two situations to which the article refers: first, where several persons have jointly taken part in a wrongful act that has caused injury, and, second, where they have committed separate faults each of which may have caused the injury. Accordingly, he rejected the City's argument that "in either case" referred strictly to the second scenario cited above.

Continuing the analysis under article 1480 C.C.Q., Justice Gascon concluded that the Defendants had not jointly taken part in a wrongful act. In his opinion, the existence of a common intention is required for the concept of joint participation in a wrongful act. Although that intention may be tacit, the Defendant must have been aware of the acts or omissions that constituted the wrongful act and must have intended to take part in them. However, he was careful to point out that the wrongful act in issue was participation in the destruction of the vehicle, rather than participation in the riot. On that point, the Court stated as follows:

[63] As the above decisions show, the existence of a common intention is required for the concept of joint participation in a wrongful act in the context of the new scheme of art. 1480 C.C.Q., just as it was for the common venture concept in that of the former scheme. This intention may be tacit, of course, but at the very least, the defendant must have been aware of the acts or omissions that constituted the wrongful act and must have intended to take part in them. Like the other constituent elements of civil liability, a common intention must be proved on a balance of probabilities (arts. 2803 and 2804 C.C.Q.). It can often be inferred — in accordance with the rule governing presumptions of fact set out in art. 2849 C.C.Q. — from the very fact of taking part in the impugned acts.

[…]

[70] It follows that, for two compelling reasons, the respondents cannot be found solidarily liable under art. 1480 C.C.Q. First, it is possible to establish a causal connection between each of the respondents' faults and a specific injury. Second, the faults of the respondents involved in each of the actions instituted by the City did not constitute joint participation in a wrongful act given that the respondents in question did not have a common intention. Having said that, I wish to be clear that art. 1478 C.C.Q. and art. 328 of the Code of Civil Procedure, CQLR, c. C 25.01, have no impact on this analysis. They apply where, after a finding of solidarity has been made, liability must be apportioned among persons who caused a single injury. The trial judge and the Court of Appeal were right not to take them into account here.

[Emphasis added.]

With respect to article 1526 C.C.Q., Justice Gascon was of the opinion that the solidarity scheme that it provides also did not apply to the facts of the case. With regards to the damage done to the patrol cars, and contrary to the opinion of Justice Côté (dissenting in this case), Justice Gascon saw the situation as several injuries caused to each patrol car, each of which could be connected with a specific act of mischief. In those circumstances, while there were indeed several faults, the evidence made it possible to link each fault to a specific and separate injury. Accordingly, since there were, first, several faults and several injuries, and, second, evidence of a causal connection linking each fault to each injury, there could be no solidary liability:

[81] Finally, the trial judge was right in law in characterizing the respondents' faults as separate faults rather than as common or contributory faults. For it to be possible to characterize faults as a "common fault" or "contributory faults", and for them to lead to the application of art. 1526 C.C.Q., they must have caused or contributed to a single injury (Baudouin, Deslauriers and Moore, at Nos. 1 720 to 1 721; Code civil du Québec: Annotations — Commentaires 2017-2018, at p. 1287). These cases do not involve such faults.

[82] From this perspective, the City's assertion that the respondents' fault consists in their taking part in the total destruction of a patrol car during the riot reflects an error in its reasoning. To say that the fault lies in taking part in the total destruction of a vehicle is to characterize the fault not on the basis of the impugned act, but by taking the final injury suffered by the victim as the starting point. This approach of retrospectively characterizing the fault solely on the basis of the injury the victim suffered as a result of a series of wrongful acts is inappropriate, as it disregards a central element of extracontractual liability: causation. By logical extension, it would be possible to recharacterize every one of a series of faults that injure a single victim. It would then suffice to say that the fault consists in taking part in the aggregate injury suffered by the victim. But such an approach would be contrary to the requirement under art. 1457 C.C.Q. that causation be established.

[Emphasis added.]

In her dissent, Justice Côté would have allowed the appeal by the City and found the Defendants to be solidarily liable. Justice Côté shared the City's interpretation of the expression "in either case" in article 1480 C.C.Q.: that it does not apply to a situation in which several persons have jointly taken part in a wrongful act. Accordingly, a court could conclude that there was joint participation in a wrongful act even where it is possible to determine which of the Defendants actually caused the injury.

Justice Côté then concluded that the Defendants did jointly take part in a wrongful act. In her opinion, article 1480 C.C.Q. is a codification of the pre-existing case law in which evidence of a common intention was not required, and, in any event, the destruction of a patrol car in the context of a riot amounts to joint participation in a wrongful act, resulting from a "series of related acts that were committed in the same place within a short period of time and in relation to the same property".

Justice Côté would also have concluded that solidarity applied under article 1526 C.C.Q. In her view, there was a single injury: the total destruction of the vehicle. The seriousness of each fault committed by each of the Defendants would therefore be relevant only in recursory actions among them. Accordingly, all the persons who took part in the fault should be held solidarily liable for damages:

[134] Because the trial judge concluded that the respondents had not jointly taken part in a wrongful act, he was unable to establish a causal connection with the injury suffered by the City, that is, the total loss of the patrol car in question. He instead found that there were a number of individual faults, each of which had caused a portion of the damage. Unlike him, I find that the respondents committed a common fault that resulted in the total loss of each vehicle. In light of my discussion in the preceding sections, it was the wrongful act in which the respondents jointly took part that was the direct cause of the destruction of each of the vehicles, and it therefore stands to reason that the respondents are solidarily liable under art. 1526 C.C.Q.

[Emphasis added.]

Both the majority and the dissenting opinions concluded that there was no liability in solidum, since there was only one source of liability in the cases in issue: extracontractual liability. The Supreme Court therefore confirmed that, unlike in cases involving separate contractual faults or faults that are both contractual and extracontractual, the legislature has established, in articles 1480 and 1526 C.C.Q., a complete legislative framework to govern the solidarity of debtors who have committed extracontractual faults.

Thoughts and Comments

Lonardi raises an important discussion about the determination of injury. Upon review of both the majority and dissenting opinions, there is every reason to believe that the real disagreement between Justice Gascon (for the majority) and Justice Côté (dissenting) concerns the different types of injuries that did or did not exist in the case. In Justice Gascon's view, the total loss of the vehicle was the result of several injuries caused to the same property, while to Justice Côté, the total loss of the vehicle was the injury in itself: while the seriousness of the actions by the Defendants might vary, all of the actions contributed to a single injury. Accordingly, in her view, the City, as the victim, should have been entitled to be compensated on a solidary liability basis.

This decision is also a reminder of the essential, if secondary, function of civil liability – its preventive function – as well as the dichotomy between that function and its remedial function. Indeed, the two opinions discuss the unfair situations that would result from a conclusion that was the opposite of their respective reasoning. In Justice Gascon's view, solidarity among the Defendants "would thus amount to placing a rioter who kicked a car door in a fit of pique in a position in which he could face financial liability in the order of tens of thousands of dollars". In the opinion of the Court, concluding otherwise would defeat the purpose of requiring that the existence of a causal connection between the fault and the injury be proved. In Justice Côté's view, considering the situation in which the persons who committed the faults put the victim and the fact that it was not possible to identify every rioter in the photographs and videos from that evening, the City was not sufficiently compensated for the entirety of its injury. As such, the "splitting" of the injury and the absence of solidarity resulting therefrom would run contrary to the remedial function of civil liability.

Given that the Court also noted that article 1480 C.C.Q. applies to contractual liability as well, there is every reason to believe that this decision will have a major impact on the apportionment of liability and awarding of damages in general civil law.

This decision also serves as a reminder of the important role played by technology in introducing evidence of the Defendants' actions during the riot. It will be interesting to analyze future decisions when the courts do not necessarily have access to equally probative evidence that makes it possible to connect each fault to a specific injury.

Footnotes

1       2018 SCC 29.

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