C A N A D A
COURT OF HUMAN RIGHTS
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL
UNDER THE CHAIRMANSHIP OF MR
THE judge MICHAEL SHEEHAN, j.c.q..
With the assistance of assessors:
Mr. Daniel Dortelus and
Mr. Pierre Laramée
Montreal, may 10, 1995
The COMMISSION of human rights, constituted body under theCharter of rights and freedoms (R.S.Q., c. C-12 )).
Me Philippe Robert de Massy
JEAN COUTU, administrator.
CENTRE of home PAVILLON SAINT-THÉOPHILE Inc., legally constituted political body.
Enterprises EMELDA COUTU Ltd., body policy legally constituted.
116467 CANADA Ltd., body policy legally constituted.
CENTRE RÉCRÉATIF J.C. for impaired mental, legally constituted political body.
Foundation JEAN COUTU, body policy legally constituted.
LES ENTREPRISES A.P.A.D. Inc., legally constituted political body.
Parties defend plaintiffs,.
Me Eliana Marengo
Mr. Scott Hughes
The beneficiaries of CENTRE of home PAVILLON SAINT-THÉOPHILE, as identified in the days of hearings.
The Committee of recipients of CENTRE of home PAVILLON SAINT-THÉOPHILE, entity created under the Act respecting health services and social services (R.S.Q., c. S-5 )).
Parties victims and
Me Jean-Pierre Ménard
LE CURATEUR PUBLIC DU QUÉBEC, in the person of Mrs Nicole Fontaine, named by Decree of the Government of Quebec number 1985-89, dated December 20, 1989.
Me Chantal Masse
The OFFICE of disabled persons, organization incorporated under the law ensuring the exercise of the rights of disabled persons (R.S.Q., c. E – 20.1 )).
The Committee PROVINCIAL DES patients Inc., legally constituted political body.
CONFEDERATION DES organizations provincial of persons with disabilities DU QUÉBEC (COPHAN), legally constituted political body.
ASSOCIATION OF QUEBEC FOR SOCIAL INTEGRATION (AQUIS).
Hearings for 3 weeks between November 21, 94 and January 24, 95.
J U G E M E N T
The Rights Commission claims Mr. Coutu and the companies it controls an allowance of 2,060,000$ in moral damages and exemplary damages due to various forms ofexploitation and abuses they allegedly exercised against the rights of the beneficiaries of the Centre d’accueil Pavillon Saint-Théophile, between January 1, 84 and March 31, 88.
1.The issues in dispute
This case raises the following issues:
1 – Mr. Coutu and each of its companies were, between January 1, 84 and March 31, 88, Pavillon Saint-Théophile recipients form anyoperating or violations of their rights protected by the Charter of rights and freedoms?
2.-If so, this operation or these infringements on the rights of the beneficiaries are intentional?
3.-The appeal of the Commission’s rights is it prescribed?
4 – If the action is not prescribed, what would be the amount of the compensation due to the beneficiaries?
2. The facts
For several years, and until March 31, 88, Pavillon Saint-Théophile administers a contracted private centre under a permit issued by the Minister of health and Social Services of Quebec. The permit allows Pavillon Saint-Théophile to administer a centre for hosting for 88 beneficiaries.
Pavillon Saint-Théophile is a wholly owned subsidiary companies Emelda Coutu. It is a holding company and a holding company including Mr. Coutu is the one and only shareholder. She is owner of the Pavillon Saint-Théophile buildings. Since the founding of Pavillon Saint-Théophile in 59, m. Coutu is the only director general.
Effective January 1, 84, the Minister of Health concluded a contract with Pavillon Saint-Théophile purposes to pay for health services and social services provided to its beneficiaries. All recipients of the Pavillon Saint-Théophile are disabled.
An assessment of November 87 reveals that in addition to having an intellectual disability, 15 recipients have associated disabilities. Four move in a wheelchair, four live with an intellectual disability, two have a sensory disability at the hearing level, six have difficulty walking, have three defects, three have a profile of affective nature, 17 exhibit behavioural problems including five with psychiatric characteristics. Six present intellectual retardation constituting an acquired deficiency. Finally, 13 receive anticonvulsants for epilepsy and 40 consume tranquillizers regularly or occasionally.
Before their admission to the Pavilion, 24 lived in hospitals, 17 in a Center home, four in a family home, 35 in their family and unknown provenance of eight of them. The average age of recipients is 42 years; the youngest was 27 years old, the oldest is a 71-year-old woman. The majority was between 27 and 50 years old. There are 52 men and 36 women. The average length of their accommodation at the Pavillon Saint-Théophile is seven years and 216 days for men and 11 years and 261 days for women.
Each of the beneficiaries of the Pavillon Saint-Théophile is welfare. As such, it receives a monthly allowance for personal expenses. At 84 early, the monthly allowance is $ 90. August 1, 84, it is raised to $ 105 and starting January 1st, 85, it is again increased to $ 115. This amount remains fixed until the end of the period in March 88.
Given the inability of beneficiaries, monthly allowance is paid to a trustee, in this case, Mr. Coutu. As such, he is responsible from year to year, to use the monthly allowance in a reasonable manner, for the sole benefit of each beneficiary. Mr. Coutu gets about $ 10,000 each month. On an annual basis, receives about $ 120,000. As these amounts are received, they are paid in his trust account.
For the purpose of providing to beneficiaries personal services not covered by the contract with the Department, Mr. Coutu creates the Recreation Centre J.C. Inc., a non-profit corporation. All personal expenses of the beneficiaries are channeled into the hands of the corporation who, as a single supplier, Bill every month the account in trust for all of the allowance of personal expenditure of each of the beneficiaries.
J.C. Recreation Centre established for each of the beneficiaries a fixed charge weekly or monthly for hobbies, Silver Pocket, haircuts, movies and various hygiene products. There are also additional loads for clothes. It is recognized that these charges are charged to each beneficiary regardless of the number of outlets in which it participates and without regard to its actual consumption. Hygiene products provided by J.C. Recreation Centre are purchased at the wholesale price and charged to the retail price. It goes same for clothes that are often purchased for sale or discount prices. The benefit of the discount or the selling price is always directed by J.C. Recreation Centre and will never be transferred to beneficiaries.
J.C. Recreation Centre organizes all hobbies of the beneficiaries. These hobbies consist mainly outputs for the purpose of bingo in the Franc-people room. In addition to bingo, there are also dances and spaghetti dinners. These activities take place two or three times a week. During certain times, there are up to five activities per week to the Franc-people room.
The Franc-people room is the property of companies Emelda Coutu Ltd., administered by 116467 Canada Inc., another subsidiary wholly owned by companies Emelda Coutu. When the Franc-people room activities, individuals from other shelters in the region are invited to attend with the beneficiaries of the Pavillon Saint-Théophile, but these are the only costs of room hire.
For each of the outputs to the Franc-people room, Recreation Centre J.C. pays 116467 Canada, even the burdens imposed on the trust account beneficiaries, $ 300 for the room rental fee; $ 125 for bus transportation; $ 25 for the driver; $ 20 per monitor. For each beneficiary, it loads and poured $ 3.25 for dinner and $ 1 per snack. The bus is owned by J.C. Recreation Centre and the supervision of its operation is the responsibility of Fondation Jean Coutu, a foundation of which Mr. Coutu is the founding president and administrator.
Until 82, recipients are invited to participate in work without pay in workshops. In 82, it puts an end to this work and it introduces systematic occupational activities for all beneficiaries. These occupational activities aim housekeeping of all stages of the visitor centre as well as some work in the cafeteria.
To perform this work, recipients are divided into groups of about 13. Each group is framed by a monitor. Two groups are involved in maintenance of the basement, two others on the ground floor and two others from the floors of rooms. Finally, a brigade is set to washing dishes and preparing vegetables in the cafeteria. Janitorial work is especially run the morning while the afternoons are devoted to the outputs. No remuneration is paid for this work, which runs throughout the period, until the end March 88.
In 81, baths of the beneficiaries give the basement in a room where 4 baths are located. 4 clients both receive their bath under the supervision of a single person. The bathtubs are separated by curtains that are often broken or unused.
Recipients who wait their turn in the corridor get naked in a small adjoining room and retain their undergarments. Often, these come in the bath room while waiting for those who take their bath out. As a result, recipients meet nudes.
From 76, Pavillon Saint-Théophile sets up a system of punishments. This
system is designed to raise the beneficiary who does something inconsistent with the place of his companions or staff. It punishes aggressive behaviour; a fugue; a refusal to work in the kitchen or maintenance household; a stir-fry of mood; a rudeness in respect of a person; a delay to the drug; a refusal to strip; incontinence, etc.
As a punishment, we cut the pocket money; forced to wear the Pajamas during all day; It cut the restaurant, a meal, dessert, snack, a television program, or even a weekend trip. The occasion, attached the offending recipient using a restraint.
In February 1979, madame Mariette Carrière is admitted as a beneficiary to the Pavillon Saint-Théophile. She remained there until the end March 88. His sister, Mrs. Carpentier, is dissatisfied with how Ms. career is treated in the facility. She complains including dental care and the quality of the clothes it provides. In 83, Mrs. Carpentier without success, took steps to obtain the administration of the monthly allowance of his sister. In June 1985,
Mrs. Carpentier meets Mr. Coutu and reiterates its request.
In October 1985, Mrs. Carpentier communicates with the Centre of social services of Metropolitan Montreal, and in December 1985, she gets the trust of the monthly allowance of his sister. As of this moment, it receives directly the allocation monthly cheque. In February 86, she became curator of his sister.
Different occasions later, madame Carpentier complains that Pavillon Saint-Théophile asks him for sums of money for services that her sister has not received. She also complains that are denied certain services to her sister and the climate is deteriorating. In December 1985, Mrs. Carpentier complains of the lack of privacy of beneficiaries during baths in the basement. In February 86, Mrs. Carpentier asked that his sister be transferred in another institution. This application was refused in June 86 by officials of the Social Affairs network.
Following a visit of inspection at the beginning of December 85, two nurses from the Department of health made 20 recommendations for the establishment. These recommendations are Advisory Board of clinical staff training; accessibility to the manual of policies and procedures; the formation of a Committee of beneficiaries; the administration on an individual basis of the monthly allowance; hygiene care, such as baths, which must be given individually; the use of baths on the upper floors and the cessation of the use of the baths in common in the basement; the storage of the personal clothing of each beneficiary in his room; the quality of clothing provided to recipients; the installation of the toilet doors; the availability of health papers at any time in the toilet and no retention sanitation under padlock on the first floor.
In January 1986, Mr. Coutu convenes the parents of recipients to a first meeting of the Committee of the beneficiaries. Meetings of the Committee are held almost monthly thereafter. In August 86 at one of these meetings, the Committee refused to approve the system of management of the monthly allowance that is to share the expenses and charge fixed amounts to each beneficiary regardless of its actual consumption. The Committee also asks to cut some outings that he considers too costly.
September 9, 86, m. Coutu advises that since June 86, it terminated the charges as a “pool” and that the outputs will be gradually reduced to October 86. September 11, 86, recipients request to the public trustee Committee investigating the administration of the personal expenses allowance. (September 22, 86, the provincial Committee of patients address a complaint to the Rights Commission relatively: 1) to the use of the monthly allowance of personal expenses; (2) to work without pay recipients; (3) to the conditions of life and care imposed on the latter.
December 18, 86, the Rights Commission informed Mr. Coutu of the existence of the complaint of the provincial Committee of the sick and asks him to provide certain documents. December 30, 86, m. Coutu responds to the Commission’s rights and provides various documents. The Rights Commission transmitted the explanations of Mr. Coutu to Committee of beneficiaries.
In February 1987, the Rights Commission’s investigator meeting Mr. Coutu with representatives of the Committee of the beneficiaries. A second meeting took place in April 1987 and a third is scheduled for June 11, 87 with an ultimate goal of achieving a settlement. Subsequently, this meeting is cancelled at the request of counsel for the Committee of the beneficiaries and the provincial Committee of the sick.
July 13, 87, the Committee of the beneficiaries, through his attorney, transmits a complaint detailed the Rights Commission. The complaint States that in just about all aspects of their lives to the Pavillon Saint-Théophile, beneficiaries are victims ofexploitation on the part of the establishment. The first grievance concerning financial management of money from recipients, including the monthly allowance. Complain also imposed unpaid work to the beneficiaries, and finally, the quality of life imposed on them and the fact that so general, their rights are not respected.
September 10, 87, Mrs. Carpentier filed a complaint alleging the same grievance Committee of the beneficiaries and the Rights Commission undertakes the hearing of witnesses for the purpose of its investigation. As a result of a disagreement concerning the public nature of the inquiry, the superior court is seized with a motion in evocation and the investigation is suspended. November 20, 87, the Superior Court dismissed the motion.
During the fall of 87, the Deputy Minister of Health ordered an administrative investigation into the functioning of Pavillon Saint-Théophile. The investigator, Mr. Perreault, produced its report in October 1987.
January 88, m. Coutu sends to the public trustee a surplus of some $ 34,000 generated by the establishment, in June, 86, of the individual’s monthly allowance accounting and gradual discontinuation of the outputs to the Franc-people room and elsewhere in the fall of 86.
January 29, 88, the beneficiary Committee meets the Minister of health,
Madame Thérèse Lavoie-Roux, that promises to solve the problem. February 8, 88, the Committee of the beneficiaries received the Department’s recipients evaluation report prepared by relay Laval. The Committee meets with the investigator, Me Perreault who gave a commentary of his investigation report. Mr. Perreault promises to provide a copy of its report to the Committee during the month of March. March 31, 88, the Ministry of health places the Pavillon Saint-Théophile under supervision and puts an end to the administration of Mr. Coutu. The consolidated balance sheet of companies Emelda Coutu reveals an active 3,961,000$ at August 31, 87 and 4,241,000$ to August 31, 88.
June 88, Rights Commission resumes hearing of witnesses in its investigation which continues for 77 days until March 90. January 24, 91, following written pleadings and the tabling of a report of the investigator in November 1990, the Rights Commission concludes that the beneficiaries of the Pavillon Saint-Théophile wereoperating within the meaning of article 48 of the Charter of rights. The Commission proposes as a remedy, the payment to the beneficiaries of a compensation of $ 1,000,000 before March 1, 91.
September 3, 91, in the absence of a settlement, the Rights Commission enters the Court. At a preparatory conference, the parties agree to pay to the Tribunal record as evidence, subject to complete necessary, 77 volumes of transcript and the 450 or so pieces in the investigation already held before the Rights Commission. Finally, at the hearing, the Tribunal authorizes an amendment with the request to 2,060,000$.
3. The reasons
Against the request, Mr. Coutu and its companies claim is imputed to the Pavillon Saint-Théophile obligations of a visitor centre rehabilitation instead of those of a centre of accommodation; only the Rights Commission doesn’t have the legal capacity to sue Mr. Coutu and its other companies since the Commission’s investigation was only Pavillon Saint-Théophile; Whereas beneficiaries have been the object of any wrongdoing or exploitation; that the Department of health knew the management of the allocation system and approved as well as the programme of activities for the unpaid work of the beneficiaries. Finally, it is claimed that the action is prescribed.
For the following reasons, these claims are frivolous m. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre
3.1 The applicable law
TheQuebec Charter of rights and freedoms provides that every human being is entitled to the security, integrity and freedom of the person; any person has the right to the safeguard of his dignity, honour and reputation; respect of his life private; to peaceful enjoyment and free disposition of his property; recognition and exercise in full equality of the rights and freedoms of the individual without distinction, exclusion or preference based on disability or the use of a means to overcome this handicap. As to theexploitation of elderly and disabled people, theCharterexpressly provides:
“Any person or any person with a disability is entitled to be protected against all forms ofexploitation”.
Such person is also entitled to protection and safety that should bring him his family or people who in lieu.
Finally, unlawful interference with a right or freedom recognized by theCharter entitles the victim to obtain the cessation of such infringement and repair the moral injury or property damage resulting therefrom. In the case of unlawful and intentional interference, the Tribunal may also order its author to exemplary damages.
The health services act also provides that any person has the right to receive services from health and social services adequate on both scientific, human and social, with continuity and in a custom manner, given the Organization and resources of institutions providing these services. The regulations on social assistanceprovides that a trustee must use the assistance to a recipient in a reasonable manner, for its own benefit, and that it should not draw a direct or indirect benefit for himself. If using accumulates, it must be placed in a reasonable manner, having regard to the amount that it represents, in addition to the main interests.
3.2 International instruments
This protection provided by the laws of Quebec and theQuebec Charterdraws objectives and common standards set out on numerous occasions by the States members of the United Nations and the international community. Since 1948, the Universal Declaration recognizes the need for protection for people with disabilities. It states that every person has the right to a standard of living adequate for his health, his well-being and that his family, especially for food, clothing, housing, medical care and necessary social services. Specifically, it was noted that it is entitled to security in the event of disability or loss of livelihood as a result of circumstances beyond its control.
For its part, the Declaration of the deficient mental provides the need to assist the visually mentally to develop skills in the areas of activity the most various and foster, in as much as possible, their integration into normal social life. The deficient mental must enjoy the same rights as other beings humans; He is entitled to advice that will help it develop to the maximum its capabilities and skills; economic security as well as the right, to the extent of its possibilities, to do productive work or exercise any other useful occupation.
The deficient mental has the right to live within his family or a home is replacing and participate in different forms of community life. The home where he lives must be assisted and if its placement in specialized is required, the environment and living conditions should be as close as possible to those of the normal life; He has the right to benefit from a guardianship described as when this is necessary for the protection of his person and his property and to be protected against all exploitation, abuse or treatment degrading. Finally, if because of the seriousness of their disabilities, some deficient mental are unable to effectively exercise all their rights, or if a limitation of these rights or even their removal is necessary, the procedure used for the purposes of this limitation or abolition shall legally preserve the deficient mental against any form of abuse.
The Declaration of the rights of persons with disabilities also provides that the term ‘disability’ means any person unable to ensure by itself any part of the necessities of a normal social or individual life, due to disabilities, congenital or not, its physical or mental capabilities. Persons with disabilities must enjoy all the rights set forth in the Declaration, these must be recognized to all persons with disabilities without exception no.
The disabled person is essentially right to respect for his human dignity and the same fundamental rights as his fellow citizens of the same age, which implies that to enjoy a decent life, as normal and healthy as possible; She was also entitled to measures designed to provide the widest possible autonomy; aid, advice, job placement services and other services that provide maximum value of its capabilities and skills development and expediting the process of its integration or his social reintegration. to a decent standard of living and the right to obtain and retain employment or to exercise a useful, productive and remunerative occupation and to belong to trade unions.
The disabled person has right to have their special needs taken into consideration at all stages of economic and social planning; to live within his family or a home is replacing and participate in all social, creative or recreational activities. No disabled person cannot be required, residency, to separate treatment which is not required by its State or improvements that can be made to him. The environment and conditions of life must be as close as possible to those of the normal life of the people of his age; the person with a disability must be protected against any operation, any regulation or any treatment discriminatory, abusive or degrading treatment or punishment.
January 1, 84 to March 31, 88 companies A.P.A.D. was inoperative. She asked no move relatively to the beneficiaries and no evidence has been offered to his subject. The claim against it must therefore be rejected.
Before addressing the question of the properoperation of recipients, two preliminary remarks are needed: first the status of Pavillon Saint-Théophile as accommodation reception centre and the second concerning legal Commission of the rights to sue Mr. Coutu and some of its companies.
3.3 Vs Services Hosting Services of rehabilita tion
Mr. Coutu, and his companies seem to want to pull a defence of Pavillon Saint-Théophile had a status of visitor accommodation centre and that he had neither the resources nor the status to ensure that the services of a “rehabilitation” centre.
It should be noted that the health services act provides that everyone is entitled to receive services health and social services adequate on the plans to both scientific, human and social, with continuity and in a personalized manner, given the Organization and resources of institutions providing these services. As a result, the status of a reception centre or a lack of resources, or even budgetary constraints cannot justify in any manner an exploitation of disabled beneficiaries.
It is true that several people in the network of Social Affairs, including Mr Coutu, found that some beneficiaries of the Pavillon Saint-Théophile would have advantage to be placed in a centre of rehabilitation rather than in a centre of accommodation. They asked the Health Ministry to solve this problem.
He refused to transfer recipients in a rehabilitation center and it also refused to change the status of the Pavillon Saint-Théophile. Furthermore, the resources of the institution were greatly increased. Clinical staff has increased from 36 in 84, 42 in 86 to be then brought to 65 in 87. As a result, Pavillon Saint-Théophile had sufficient clinical staff to avoid that beneficiaries be exploited or undergo an infringement on their rights protected by theCharter.
3.4 Complaint vs Pavillon Saint-Théophile only?
For what is the capacity of the Commission’s rights to sue Mr. Coutu, and his companies other than the Pavilion Saint-Théophile, they claim that they cannot be assigned to justice because investigation, a precondition to the remedy exercised against them, has referred that Pavillon Saint-Théophile and anyone else.
This issue has already been examined and rejected in the appeal lodged against the judgment in judicial review by the superior court against the judgment on the motion to dismiss the present application. In this respect, the Tribunal cannot do better than to quote with approval, the remarks of the hon. Gendreau:
“In my opinion, they (callers) are wrong.” First, the facts: as early as July 13, 1987, counsel for the beneficiaries, in a long letter to the Commission which it concluded at the request of an investigation, referred specifically to the Foundation Jean Coutu, the Franc people recreation and Mr. Jean Coutu Centre personally and as Director general of the Visitor Centre or owner of the establishment. He even stated: “Since the 3 last years, beneficiaries have seen tens of thousands of dollars be entertained for the benefit of other corporations owned by Mr. Jean Coutu”. On the other hand, according to the affidavit of Mr. Perras, the investigator, Mr. Coutu was personally present throughout the 73 days of the inquiry except for 5 or 6 sessions, and always represented by lawyers. In addition, before withdrawing to deliberate and prepare its report, the investigator publicly summarized the evidence in broad terms, specifically mentioning Mr. Coutu and most of the callers and asked lawyers to hold in writing their comments and details. In response to this invitation, the Visitor Centre was a 183-page document with a section entitled ‘complaints management allowances recipientsalleging that Jean Coutu or the flag away for their benefit money from the beneficiaries’and where you commented on this aspect of the case.
In sum, from the start, the investigation was acts ofexploitation in contravention ofarticle 48 of the Charter , which claimed that some had been possible because camouflaged or hidden through the implementation of a number of companies controlled by the Reception Centre or Mr. Coutu. Later, in the investigation, the unveiling of these alleged violations would earn gradually over the sessions, in the presence of the principal applicant and his lawyer. And finally, at the end of the hearings, Mr. Coutu would have informed of the criticisms we made him as to the other parties and did, in their place, specific representations on their merit.
The Tribunal finds that from the beginning, the Rights Commission’s investigation was Mr. Coutu and each of its companies. The Rights Commission therefore has the capacity to bring the present action.
3.5Exploitation of beneficiaries
As already mentioned in the case of Brzozowski,operation prohibited by theCharterof any person, or with a disability is defined as any form ofexploitation and is not limited, in the text of theCharteron economic exploitation , i.e. a profit of financial. Theoperation can be physical, psychological, social or moral.
3.5.1 The appropriation of the monthly allowance
According to the evidence, J.C. Recreation Centre invoice each beneficiary, to even his monthly allowance for personal expenses, $ 13 per week for recreation, $ 7 a week in pocket money, $ 4 per month for hair, $ 7 per month for viewing movies and $ 4.50 or $ 6.50 per month for hygiene products depending on whether it is men or ladies products. These fixed costs to each beneficiary have nothing to do with the number of its outlets or its actual consumption.
The accountant, Mr. Tessier, admits that instead of vague amounts, it provides descriptions, but these are arbitrary descriptions for services rendered to beneficiaries: “since the beginning, they say that there are surpluses on positions to give revenue to the Centre J.C.;” to create recreational activities for patients. “Could have put ‘services rendered to the beneficiaries’ overall… it never said that it was the actual costs”.
Without doing an exhaustive enumeration, the Tribunal adopts the following. Given the monthly load $ 4 for haircuts on all recipients, Recreation Centre J.C. invoice the account in trust an average of $ 352 a month. Billing is made to each beneficiary regardless of the price of the Barber. The Barber is paid $ 2.50 initially, then $ 3 and $ 3.50. This ensures that the Barber is paid for the number of actually made haircuts. This concern for audit is set aside when it comes to charge beneficiaries.
In December 84, I charged $ 348 for 87 haircuts while we pay $ 155 for 62 cuts. In April 1985, it charges $ 352 for 88 cuts while 14 beneficiaries only receive cuts at a cost of $ 35. In September 1985, no cutting is paid, but I charged $ 352 again. It is likewise in December 1985 and January 1986. In March 86, it gives no cut, but it charges $ 340 for 85 cuts. In June 86, you pay $ 130 for 52 cuts while I charged $ 344 86-cut. In July 86, you pay $ 40 for 16 cuts and I charged $ 344 86-cut. In December 84, we pay $ 155 for 62 cuts and I charged $ 348 for 87 cuts.
As for clothing, we buy at discount price and I charged at the regular price or to
an inflated price. In January 1985, we buy two Pajamas at a cost of $ 7.99 and invoices at $ 17. In October 84, it buys 11 sweaters at $ 10 each and I charged them $ 11 each. We buy shoes at $ 10.95 and invoices to $ 19. In September, 84, we buy bags at $ 6.99 and invoices to recipients at $ 8. We buy three swimsuits at $ 19.99 and I charged them $ 24 each. We buy 60 dresses of Chamber 17 $ and I charged them $ 23 to the beneficiaries. In August 1985, is a billing of $ 2 per Jersey on swimwear and in September 1985, we buy 192 sweaters with Pavillon Saint-Théophile listing and phone number. It pays $ 6.75 and it resells them to recipients at $ 8 the unit.
For hygiene, in December 84 products, you buy 6 gallons of foam $ 37.20 charged to beneficiaries to $ 88. In June 84, we buy 4 gallons for $ 24.40 and I charged recipients for $ 88. We bought 6 gallons for $ 36.60 in July 84, and I charged $ 88. In September, 84, we buy 6 gallons at $ 36.60 and I charged $ 88. In October 84, we buy no foam, but it charges $ 88. In November 84, we bought 4 gallons of foam to $ 24 and I charged $ 88.
For films, in November 84, it pays $ 250 and I charged $ 609. December 84, it pays $ 475 and I charged $ 609. In January 1985, it pays $ 310 and I charged $ 609. In February 1985, it pays $ 400; in March 1985, $ 600; in April 1985, $ 450; in November 1985, $ 440; in December 1985, $ 580, and in January 1986, $ 455, but in each of these months, I charged $ 616. In February 86, it pays $ 440; in March 86, $ 470. in April, 86, $ 540 and for each of these three months, I charged $ 595.
For purposes of leisure, I charged systematically $ 13 per week with $ 7 for recreation and $ 6 to transport. According to the number of weeks in the month, J.C. Recreation Centre collects 4,575 6,600 $ monthly recipients. This amount, established arbitrarily, is sufficient to cover all expenses of hobbies; This contradicts the thesis to the effect that it overcharges other items in order to cover the expenses of hobbies which entail no deficit.
Furthermore, the loads for recreation have no relation to the costs actually incurred. No fixed number of beneficiaries is going to the Franc-people room; This depends on the number of seats available on the bus. However, the loads are always the same, regardless of the number of beneficiaries involved in each activity.
On the other hand, the amounts collected in leisure and transport costs are redistributed across the corporate network from Mr. Coutu. J.C. Recreation Centre organizes its Bingo to the Franc-people room cost of $ 300 paid to 116467 Canada rental for each output. For transport, the company exclusively uses his own bus operated by Fondation Jean Coutu and pays it $ 150 for each output.
Over a period of three years, the Franc-people room rental income amounted to approximately $ 126,000, $ 81,000 from the J.C. Recreation Centre that taps into the trust’s beneficiaries account.
Recreation Centre J.C. invoice recipients for meals and snacks to the Franc-people room whose food is already paid from the budgets of the Pavillon Saint-Théophile. In December 1985, when the activities are removed because of an outbreak of scabies, all recipients are still charged, for recreation, totalling $ 2,112.
Recreation in the Franc-people room allow Mr. Coutu benefit from income to rent a room, meals, snacks, and transport. The Franc-people room is the only occupant of the building, property of companies Emelda Coutu. Although there is no lease between the room Franc-people and companies Emelda Coutu, m. Coutu decided periodically sums paid by room Franc-people business Emelda Coutu. Rent paid by Club Franc-people business Emelda Coutu is $30,000 83, $ 15,000 in 84, $20,000 85 and $ 20,000 in 86.
In 86, the actual spending of Foundation Jean Coutu, which operates the bus is $ 500 per month in transport costs, but I charged between $ 1,500 and $ 2,000 to J.C. Recreation Centre which, in turn, requires $ 2,100 to $ 2,600 each month to beneficiaries.
Although often appeal to the game of bingo as a hobby, the real usefulness of this activity for recipients is doubtful. Beneficiaries play a role of extras. A majority of them cannot place the tab in the right place. They are not interested in the game. When they win, they receive their price of $ 0.50 and automatically, the $ 0.50 falls into the machine to liqueurs. Many do not return to the activity or even come back by being more or less aware of what is happening.
Mr Beaudoin, head of unit in 88 by the Ministry of health to observe beneficiaries, has the impression that a small part of them included the meaning of the bingo activity and could remove fun. Furthermore, three quarters do not have this knowledge of the game, except that they know that the activity as such provides still a gain. Nobody going force, everyone goes there because they know that at some point, they’re going to win. In such circumstances, one cannot speak of needs.
For its part, Ms. Grenier, Clerk to the recipients, said she helps those who do not know their numbers. Often, it has 10 bingo cards ahead, and then no one knows the numbers. The aim is to occupy and then when they have their $ 0.50, they are well proud to receive it. According to Ms. Hood, head of the Franc-people room, only ten beneficiaries include the game. We have never thought or suggested to do otherwise.
3.5.2 The forced labour of the beneficiaries
The Pavillon Saint-Théophile budget includes two main elements: the clinical component and the component operation. The clinical component includes activities of direct services to beneficiaries, such as salary of nurses, and orderlies, monitors in rehabilitation. It is a closed budget on which the establishment has no way to make any profit whatsoever. Saved hourly wages are not left in the general funds of the institution, but returned to Québec.
The second component is functioning. This includes the salary of executives and ancillary services (laundry, kitchen, housekeeping); the cost of supplies, such as food, maintenance equipment, rolling and various other expenses. These expenses are covered by a per diem flat rate paid by the Ministry of health. Insofar as we can achieve savings in these expenditure items, this profit is retained by the owner of the establishment.
Pavillon Saint-Théophile had executed some of the work by the beneficiaries and, for free. It thus it dispenses to hire employees who would be paid to the functioning of the budget component. It takes advantage of the work of the beneficiaries in the cafeteria.
The policies and procedures manual of the Pavillon Saint-Théophile provides occupational activity programs with the most normalizing to ensure beneficiaries a living environment possible for their full development. It is expected that these programs are designed taking into account the tastes and the physical and psychological capabilities; each beneficiary is oriented based on their personal characteristics in a number of programmes of activities developed at the Visitor Centre.
The reality is quite different. Instead of occupational activities, also included in the manual, the list of maintenance activities to be carried out by the beneficiaries with a schedule of activities similar to that of a week and a day of work, expected maintenance of almost all the Pavillon Saint-Théophile. The work of the beneficiaries is supervised by monitors of therapeutic activities that complement the work necessary. The beneficiaries are divided into seven teams composed of more or less 13 recipients with a work schedule.
Theoretically, tasks are assigned to teams of recipients who change team every three or six months. In fact, some beneficiaries have designated tasks. Dishwashing, 16 persons are assigned, and they are always the same. Expected substitutes in case of absence of beneficiaries engaged in this work. Mr. Coutu himself admits that in general, beneficiaries still do the same work or close. According to Mrs. Amnotte, these are the best persons to do so, those who have dexterity, those who like it, resourceful and able patients who have really decided for themselves to be part of the list. There is always the same and most functional according to madame Amnotte.
In summary, most likely beneficiaries are those who are always assigned to repetitive tasks, at the expense of their physical and intellectual development. On the other hand, other beneficiaries, who do not have the potential, participate in any particular learning. They have no individualized intervention plan.
Moreover, the work is not voluntary. ‘Effects’ or ‘punishments’ apply to recipients who refuse to work or to perform their work, unless they have obtained prior, a nurse, an exemption for illness. Beneficiaries do not have the choice to perform work to which they are assigned. According to Mr. Coutu, if a beneficiary does not follow his team, he faces discipline, consequences such as the Pajama. If a recipient does not want to work, madame Amnotte, which calls itself authoritarian person, deals. She goes down to the basement and asks the recipient why it won’t work. In response, the beneficiary complies. Madam Amnotte adds that the same team to the kitchen three meals, seven days a week.
Ms. Levasseur, Clerk to the recipients, the day is scheduled, it is mandatory, the schedule is there and it follows. If a beneficiary does not work, there are consequences. Ms. Archambault, Clerk to the recipients, confirms that Madam Amnotte managed to convince the recalcitrant beneficiaries return to work. Mrs. Lachapelle stresses that participation in domestic work is not free, it has only exemption for illness. If a recipient is “sick” to work, it happens to invent a headache. Speaking of a beneficiary, she reported: “she has the impression that it is only she who washes dishes; although it is not the only one to do the dishes, it is perhaps better able to understand.” Finally, it confirms that if there’s no medical reason to refuse to work, a punishment is applied.
Mr. Coutu claims that he work beneficiaries because its budget is less than that of the other shelters. This is not correct. Pavillon Saint-Théophile is among reception centres the best funded both the clinical component for component operation.
It is claimed that the programme of activities put in place to encourage recipients to work is more profitable than long periods of leisure where they would have nothing to do. This may be true but by requiring recipients to work free of charge, without compensation, we enjoy their disability to increase the income of the institution. The benefits of a regular job cannot justify theexploitation of an employer who benefits with impunity, without ever paying compensation.
Mr. Coutu has asked the Department to get eight more employees to fill: “… what the recipients did”. Later, he admits that he could hire someone to decrease the work of the beneficiaries, but that: ‘… it would have reduced $ 25,000 proceeds from the box,… because it is always profit a reception centre’. It is therefore concluded, that the prime objective of Mr. Coutu is to make the most possible profits at the expense of beneficiaries.
Recipients were therefore deprived of their allocation and forced to work for free. In light of these considerations, a first conclusion applies: the beneficiaries of the Pavillon Saint-Théophile, all of which are persons with disabilities, deficient intellectual, are the object of exploitation.
3.6 The achievement to the protection and the safety of the beneficiaries
The second paragraph ofarticle 48 of theChartersets out a right for the elderly or disabled to see its protection and security provided by his family or people who in lieu. This last expression “who in lieu thereof” includes all of the inter-
stakeholders of the service network of health and social services when they replace family.
3.6.1 The lack of qualifications of staff
To understand the extent of the infringement of the human rights of the beneficiaries, is to consider not only the practices put in place in the establishment, but also the lack of qualifications of the staff. This lack stems in turn from inadequate selection criteria used when hiring.
First, Mr. Coutu itself: 59, he is electrician. There’s no special training for health services. He attended a few seminars and symposia in various institutions. He surrounded himself with a staff whose first quality is to be linked in different ways.
Since 75, m. Coutu entrusts the management of its corporate network to his nephew René Tessier who becomes c.g.a. in 81. Mr. Tessier acts as accountant of all the companies of Mr. Coutu. Until 85, his salary is fully paid by Pavillon Saint-Théophile. In 85, he became employee of companies Emelda Coutu that Bill Pavillon Saint-Théophile for services.
The Director of purchases of Pavillon Saint-Théophile is madame Nicole Clément. Madame Clément is the de facto wife of Mr. Coutu. She worked at the centre d’accueil since 20 years. She is the mother of Jean Coutu jr, the son of Mr. Coutu, who also works at the Pavillon Saint-Théophile as beneficiaries. Madame Clément has no specific training for health services.
The day at the Pavillon Saint-Théophile program officer is Ms. Madeleine Amnotte, sister of madame Clément. It occupies since 80 and she works in the Pavillon Saint-Théophile until 87. His son Jean Amnotte, also works at the Pavilion. The curriculum vitae of Ms. Amnotte demonstrates that before be chosen Director programs, it has done three years of craft on a commercial basis; She worked 19 months as a manager of a branch of the Rôtisseries St-Hubert; has directed a course of crafts in the summer camps at the Collège André Grasset; She completed four years in the service of public relations at the Lorraine City Hotel; has held a school of crafts at the Penguin store. cared for a short period of old men in city Lorraine in a host family; Finally, she was appointed to beneficiaries three months in 77 for Mr. Coutu.
The Organization of the outputs of the beneficiaries of the Pavillon Saint-Théophile is entrusted to Mrs Pauline Hotte, the wife of Mr. Coutu. She is an employee of J.C. Recreation Centre His daughter Patricia works also, on occasion, as instructor for outings of the beneficiaries of the Pavilion.
Several other members of the Coutu family work at the Pavillon Saint-Théophile. Marcel Coutu, the brother of Mr. Coutu, works as a night watchman. Daniel Coutu, the nephew of m. Coutu, works as an orderly, while Mr. Coutu’s niece, Isabelle Levasseur, as well as Anne-Marie Leclerc, Nicole Clément niece, are all two orderlies. Finally, France Clark, the daughter of Mr. Coutu, is used occasionally to Pavillon Saint-Théophile.
Evening programs officer, Mr. Canuel, without being a member of the immediate family of m. Coutu, undergoes a fairly specific evaluation in its hiring practices. In this respect, Mr. Coutu is expressed as follows: “… Since one year, I was having dinner… I was staying at the time in Laval-des-Rapides, I stood in front… the Centre Bélanger.” Worse the restaurant where I was eating, there were employees of the centre of the other side who stood, or “pool” at the small bar, then ca placotait you know. Then I noticed Canuel there… he had lost his “job” for sleeping on the ‘job’ I guess. And then there he was all the time, he has advised beneficiaries, behaviour and how it was going and days, lunch, I was going to dine there then some beneficiaries were there then I saw him work with beneficiaries. “It is that I offered him the position, come try to run programs night, that there was no person in charge to run.”
To fill the gaps at the level of the selection criteria in hiring, there is no valid staff in-service training. The tasks are handled by employees unrelated to the job title they hold. Once hired, an employee receives a single day’s training and learn the rest of his work ‘on the job’, to day to day.
Dear Déquier the complaints Department of the regional network of health and Social Services, said that at the Pavillon Saint-Théophile, there are no adequate staff; He did y
has no qualified personnel for this kind of customer. are there not enough. This is also underlined by the service department amenities nurses who noticed that the classification of employees does not correspond to their actual qualifications.
Ms. Archambault, Director of nursing, said for its part that there are employees who just should not be there. They are not all dynamic and talented staff. Ms. Archambault, some attendants are not in their place, they have an attitude of indifference towards the customer and make improper use of punishments. Finally, they have a disdain for the customer, a lack of motivation and should not work with beneficiaries.
It identifies two employees, all two Executive Director parents, who, to the knowledge of Ms. Archambault, work while intoxicated by their recipients. When Ms. Archambault shall notify the Executive, they are still left finish their shift. For its part, the nurse, Ms Fournier, points out that: “the world formed, is not”.
The selection process used is improvised by madame Amnotte, the Director of programs. She is looking for people who demonstrate good faith and availability. They did not graduate, but it does not request. In 87, when pressures to reform the institution, new employees are “non-recipients”, but “requires nothing of it”. She said in full:
“I asked diploma, I asked someone who had the heart at work, which was not bad in the heart, who loved the patients then that would work to the well-being of all these people we had with us.”
3.6.2 The dress of the beneficiaries
The land use plan regional services to adapt to people with intellectual disabilities, adopted in 84-85 by the Board of Directors of the CRSSS, provides that services provided by a facility include special attention to the attire of the person with an intellectual disability and ensure the integrity of respect for his privacy.
This objective is set aside in the Pavillon Saint-Théophile. Moreover, the use of the monthly allowance for the benefit of the corporate network of Mr. Coutu leaves little room for the purchase of clothing.
In February 86, Newby and Truchon of the Ministry of health, nurses visit the Pavilion Saint-Théophile following a complaint by the Committee of the beneficiaries. Among others, they point out that 88 recipients wear a shirt identical to the effigy of Pavillon Saint-Théophile Inc. with telephone number 627-2683. Nurses refer again to the establishment that wearing identical sweaters for all clients is not acceptable. Recipients should be able to choose their clothes every day. As already recommended in spring 81 and to promote the autonomy of clients, personal clothing of each beneficiary should most be stored in his room.
Ms. Grenier, Clerk to the recipients, said that most of the clothing is kept laundry where it must choose for beneficiaries. The expert’s request, Mr Bertino notes March 88 that clothes are not in the House of the people and that recipients get them daily or when they need to change. It also notes that the latter go clothing each other and that this has a side “enrégimentant”, on the one hand, as well as a loss of identity and individualization. He added finding that people wear the same coat for seven days overall, “… a beige coat, very easily identifiable, which does not look like the others, is passed on several people”.
According to the inventory of clothes of the beneficiaries to Mr Bertino by madame Clément in March 88, 12 people over 60 have no winter coat, 20 out of 60 have no winter boots, 18 have no mantle of spring and “… all of these people were released, it took, well, they are someone else’s boots”. Mr. Coutu provides the following explanation: “group deep which never came out, they had few (clothing), a bit less than other because attendants were never coming out”.
Mrs. Amnotte says: “… There was 40, 45 skidoo clothing and that it was in common.” There were Pajamas in the laundry room not labelled (on behalf of the recipient) who were in common and the bottom. We had boxes that were not marked with the patient’s name. We took her bath, we took the panties, the brassiere, stockings, petticoat, just what was needed. There were winter coats used for troubleshooting,… maybe 25 ”.
Madam Clement, responsible of purchases, quote it amount spent for the purchase of clothing in 87-88 for some beneficiaries: “$ 56,43 for L.B.;” $ 84.83 for D.C.; $ 69,92 for L.D., etc. “.” On the other hand, she mentioned that she was buying a pair of shoes annually for each beneficiary. There has been only 26 winter coats purchased for recipients who were between 84 and 88.
When it comes to the quality of the clothing, Mrs. Carpentier describes at length clothing provided by the Visitor Centre to the beneficiaries. She said that in summary, they were outdated, shoddy, too big or too small. Mr Martel, brother of a beneficiary, said he realized that his sister clothes were really pity. Mr Beaudoin, head of Department at the Pavilion from April 88 and as an observer for two weeks in March 88, said: “it was too big, too small clothes or which was obsolete, which was no longer fashionable.” Linen that was more suited to the person who was the owner of clothing because it was too big, too small or too worn. “One threw 20 to 25 bags of clothes”.
3.6.3 The language of staff at the place of the beneficiaries
At Pavillon Saint-Théophile, beneficiaries live several situations that daily violate their dignity. The verbal behavior of some employees reflects a disregard and lack of respect for the beneficiaries. The evidence in this regard stems from the notebooks of employees in which they write their comments and summarize their shift. It includes: “… no damage, causes rise smoothly, I think that there was a complacency about to sunrise.” Many have been in bed. Very hard to lift, especially (four appointees), those I had if we can say “tamed”. “Perhaps the temperature.”
In August 1994, found the note: “Slept in my departure”fucked”ben hard.” “Marjolaine feels the old minoune.” In September 1994, it adds: “Ca fired up these days.” Further on, we find: “(J.L.)” “Our dear j. national discussed with the dogs in the district by its window.” Further: “If he wants to stand, it will stand.” “I tied it with a leather belt.” Further: “Oh yes, P. has built a cascade of water in his bed.” But what an imagination. I had the misery to believe my eyes. “I had never seen so much water from a single human gut.” On another occasion, Mr. Canuel said: ‘Fact monitoring.’ Sent incontinent urinate. Is phones. Lava Paul at soda before bed. “In the evening, washing two little pigs that have made Brown damage.” Further, it adds: “Changed M.T. underwear” There were traces of brakes fairly thick. “Besides that, nothing to report.”
For its part, Mrs. Levasseur inscribed: “Toured the arriving every hour.” “Made cigarettes and beards, raise to the dingy, the recommended hours.” Mr. Canuel adds: “S.L. has complaint of headache and, to keep the head for they do not she breaks out.” “It’s almost interesting.” At the inquiry, asked if he considers this to be an acceptable note, he answers Yes. For its part, Ms. Amnotte said speaking of nicknames given by attendants to beneficiaries: “It wasn’t really nasty nicknames.” He there had “boqué” which was J.P…. because he was stubborn. … “Traineux foot”, “silty”, the “dingy” this is incontinence… “.”
Testimonies reveal the perception that some employees have beneficiaries. Ms. Amnotte said: “pajamas, this is not a contention.” “It was rather a restraint to remain in the enclosure, if one can say, four fences of the flag.” To explain punishment data without the permission of the nurses, Mrs. Amnotte said: “it’s like a dog that just piss, you him put the nose in it immediately, ca it is our expression that is really common, but we do not an hour later, because the patient, it does remind more.” The next day, during the investigation, Ms. Amnotte adds: “I have often seen patients arrive in my Office make-up like a buffoon.” “I was laughing to them: ‘You are amanchee like a buffoon’.”
3.6.4 The infantilization of the beneficiaries
Speaking of the age of the beneficiaries, the hotel doctor, Dr. Depôt said: “what do we have the definition of a deficient mind?” Me, a deficient mind 50 years old, I have never seen. The mental age of a deficient play down approximately 10 years… “.” Asked whether the beneficiaries are able to feel humiliated to be put in pajamas, and answers:
“I do believe that their senses are large enough for that.” “On the other hand, there is certainly a feeling that they were perhaps different, although there are some that could be three weeks in pajamas then needed to force them to remove it.”
Mr. Coutu will say: “Do not take the disabled for more intelligent than they are.” Further, he adds: “twelve or fourteen, which were the fittest.” But it was the bastards. “They were people who were the most messy on their body.” Finally, Mr. Coutu described recipients globally: “It is children with quotients of two to six years.”
We see the beneficiaries like children and treated as such, regardless of their age. This has an impact directly on the activities proposed, appropriate and rewarding activities for children, but demeaning for adults whose average age is 40 years.
One of the clearest manifestations of this stems from the annual visit to Santa Claus. This visit is done in public in a shopping mall. Mrs. Lachapelle and Fournier nurse stress that this activity makes them uncomfortable. First, it is a mandatory release. Recipients object, especially the older ones. They do not want to go there: “Probably, that they feel they are too old for that, without being able to express clearly, Santa Claus, it said them more nothing.” Mrs. Lachapelle adds: “I already accompanied young and I did not so much like my experience.” “You know, you feel… you’re laughed a little bit, because even though people seem to have some sympathy, there still remains one few different small other.”
Ms. Amnotte described the visit with Santa Claus in a different way. For her: “Santa Claus sits in his big Chair then he is dressed in red and white.” “There ‘Gillian’ around him, and then it gives candy, then it takes pictures.” Asked if recipients are online and if they will give their suggestions for gifts for Santa Claus; She replied Yes.
3.6.5 Non respect for the privacy of recipients
On another level, are not respected the privacy of the recipients. They can enjoy intimacy, even in their rooms. Mr. Canuel registration in the book of attendants illustrates this: “M.T., for his part, participated to explore his body by the joys of masturbation.” “After an hour of fun, she fell asleep.”
The Pavillon Saint-Théophile, is use of an intercom that can be used to call recipients. According to the expert, Mr Bertino, it happens that the intercom of the information very personal and intimate be disclosed without caution to the respect for the individual. Talking to the intercom between stakeholders and asked the infirmary: “Mrs a such, what is she is menstruating?” Are not heard the answer, but later the person adds: “well Yes, but it is full of blood.” Following another answer, means: “good good, put him a towel in the meantime and eventually”. The Bertino expert asks us to think about the reaction of the person concerned and other beneficiaries who hear this Exchange.
During the telephone conversations, the recipient is accompanied by an attendant. The shared bathroom continues for several years after the inspection service of the Ministry of Health ordered that this practice cease.
According to Mr. Coutu, he has never had attempts at sex education among the recipients. Of the institution discourages homosexuality, but not “normal sexuality”. Yet to have sexual contact between them, recipients need to take refuge on the beach summer, across the field at night and even in a ‘container’ to change where they are regularly picked by the police called by neighbours. In winter, they took refuge in stairwells. The rooms cannot be accessed day and toilets on the ground floor doors are locked.
Mr Bertino said that such a policy goes against the valorization of the individual. He added that in such circumstances, sexuality certainly isn’t something that is records with pride or taste you want to share it with someone else. Sexuality is much more associated with something that is dirty, which is done secretly and who can be tried.
3.6.6 The punishment system
As punishment, we place one recipient in pyjamas for several hours and even all day. The occasion, is it physically attached using restraints. It is said that it is for his own protection to prevent the beneficiary of self-injurious and to stop an attack, but more often that otherwise, this practice looks like a punishment.
Mr. Canuel registered in the book of attendants: “Except that J.L. has been” boqué’.” So, if he wants to stand, it will remain standing. “I attached it to the waist with P.H. leather belt” Further: ‘Crisis of s., in 40 minutes and Pat on the right cheek restraints.’ Further: “I gave him a float.” Finally: “Please, do not detach l. for 72 hours, day, evening, night.” “I was angry.”
The Tribunal finds that were imposed on recipients of humiliating situations. They are given nicknames with a contemptuous connotation. They can enjoy intimate moments. The rooms on the floors are inaccessible during the day so that at the time of the sunset, the rooms doors must remain open. They can enjoy their privacy at the level of personal hygiene, the bathroom being given at fixed times and together for reasons of convenience and efficiency.
All of these situations, a second conclusion applies: Pavillon Saint-Théophile recipients are not within the protection institution nor the security that should bring their families and the people who in lieu thereof. On the contrary, they see their rights to freedom, to dignity, honour, and their right to privacy violated on a daily basis by outmoded institutional practices implemented and tolerated in the establishment.
3.7 The acquiescence of families and the Ministry of health
Formulated reproaches, m. Coutu and its companies meet recipients, their family members and even the Ministry of health officials knew all of the practices put in place in the Pavillon Saint-Théophile and that they accepted the latter. This objection is ill-founded.
Ban to form anyoperation to a person with a disability is an absolute prohibition. It is a requirement of public order that suffers no exception. Pavillon Saint-Théophile beneficiaries are all people with disabilities. Developmentally, they deserve protection and the more complete security that the company can offer them.
The legislator took the trouble to set out in theCharter that no person shall, in a legal act written or not, stipulate a clause involving discrimination. Such a clause is deemed without effect. In consequence, the beneficiaries themselves or members of their family, or the Ministry of health officials, nor anyone who have the right to grant to any exploitation of beneficiaries of Pavillon Saint-Théophile.
The Ministry of health is working in more than harsh. In addition, they deal with the perennial problem of budgetary constraints. The Ministry of health is implementing inspections periodicals of all institutions of the network of social services, including the Pavillon Saint-Théophile. Although these inspections are made and although inspection reports show deficiencies in the management of the establishment, it is clear that this system of inspections does not reach his goal. Net result: the beneficiaries of the Pavillon Saint-Théophile endure unacceptable in a civilized society.
3.8 The intentional aspect
If the beneficiaries are victims of exploitation and unlawful intentional interference, the Tribunal must consider the award of exemplary damages in addition to compensation for the damage already claimed.
The evidence shows that Mr. Coutu, Pavillon Saint-Théophile and his network of companies system criminalizeexploitation financial and psychological of the beneficiaries. This system allows Mr. Coutu and its companies take advantage of disability of the beneficiaries and to appropriate, through various accounting techniques, all of their personal allowance.
Unpaid work is imposed on the beneficiaries of deliberate, systematic and organized way, so that they perform a number of tasks of housekeeping and cafeteria.
Mr. Coutu knows that this activity as established at the Pavillon Saint-Théophile meets no need of the beneficiaries. He also admits it saves at least eight positions in housekeeping, allowing it to increase all its profits at the expense of beneficiaries.
The evidence shows that Mr. Coutu and his staff chose to systematically as attendants, non-qualified personnel. Because of the savings, it is work rather than clinical functional level are interested in Mr. Coutu. If clinical staff work manually, it cannot make all required clinical care to beneficiaries.
This function of beneficiaries attendant has a fingering that requires hard work, skill and training. Attacks on the dignity of the recipients committed by employees of the institution are more likely to occur when staff is not qualified and not trained to work with this type of customer. These abuses were known to all. They are also never suppressed effectively by the management of the establishment. We therefore conclude that Mr. Coutu, establishment and its entire network of companies endorse the wrongdoing by employees in this regard. The many inscriptions in the books of the servants bear eloquent witness.
The same from the management trust exists with respect to the use of punishments for officers. It shows an indifference to the lack of respect for the rights of beneficiaries. Despite the obvious abuse revealed by the evidence and by the specifications of the consequences, Mr. Coutu does not intervene to put an end to unlawful interference.
Mr. Coutu is the Director general of the institution. Obviously, each of the violations of rights of beneficiaries is known. Mr. Coutu wants and wishes to the normal consequences of the decisions it takes on the management of the establishment, it violates, intentional and unlawful, so the rights of beneficiaries. As a result: the infringement of the rights of the beneficiaries by Mr. Coutu and the companies of which he is the sole shareholder, is desired, conscious and deliberate.
Against the request, Mr. Coutu, and his companies claim that the Rights Commission’s action is delictual and it is prescribed by two years. Without admitting the claim, the Rights Commission reply that it was absolutely impossible in law or in fact to act before the end of its investigation.
For the following reasons, each of these claims is ill-founded, at least, Mr. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre
3.9.1 The legislation applicable in the field of
According to thecivil Code, the obligations are contracts, quasi-contracts, offences, quasi-offences or the law alone. Action for damage or bodily injury are prescribed by a year. In the case of a claim for damages resulting from offences and quasi-offences, the action is prescribed by two years, in the absence of other applicable provisions. Furthermore, the continuation of the services, publications, sales or supplies does not prevent prescription, if it has not been recognition or other interrupt causes. In all cases of short prescriptions, the debt is absolutely extinguished and no action can be received after expiry of the set time. Finally, requests that the prescription is not otherwise regulated by law prescribe by 30 years.
Regarding the suspension of the limitation period, theCode provides that prescription runs against all persons unless they are in some exception established by the Code or absolutely impossible in law or in fact to act by themselves or by being represented by others. The same article points out that: the thirty-year prescription does not run against minors or the major unable to consent, whether or not provided with a guardian or a trustee. On the other hand, prescription of under 30 run against minors and the major unfit to agree with guardian or curator except appeal against the latter.
Until December 10, 90, theCharter of rights provides that a request for an investigation, at the time when it is addressed to the Commission, suspend the prescription of any civil action for the same object for a period of one year or until the Commission has notified the applicant of the result of its investigation, the lesser of these deadlines.
3.9.2 The time to prescribe
In support of their contention regarding the prescription, m. Coutu, and his companies cite case law that they claim to be constant on the part of the Tribunal, as well as settled by the superior court. All these cases clearly state that the action for damages under theCharter of rights are subject to the rules of prescription in thecivil Code. There is no place to come back to this point. Each of these cases applied elsewhere a short prescription. In this respect, the Tribunal is of the opinion that additional nuances are needed.
In the judgment Patry, the supreme court has clearly stated that in the case of a claim for damage or injury, the limitation period to take action is one year, that the injury or personal injury for which calls for results or non-contract, tort, a tort, etc. It is the nature of the damages claimed and not the source of the obligation that determines the applicable limitation period.
In this case, person, or same Mr. Coutu nor any of its companies, to suggest that we are in the presence of a claim for damage or injury. Written procedures do not not mention in this regard. Yet, it could be argued that the Rights Commission claims about at least in part, for psychological anguish and suffering on the part of the beneficiaries, so that we would be in the presence of a claim for damage or injury. This reasoning is however set aside by the Court of appeal in Gagnon.
In that case, it is a request for psychological and moral damages caused to children as a result of sexual assault. It was brought more than one year, but less than two years after the alleged events. The Court of Appeal points out that the declaration makes no “personal injury” and that the trial judge was wrong to take for granted that the alleged acts had produced a bodily effect, so an injury.
The Court of Appeal points out that when damage is not body itself, should not be subject to the short prescription of one year. It therefore invokes the rule of interpretation that an exception and in particular a short prescription only applies when it expressly deals with the case. the short limitation period must be interpreted restrictively. The Tribunal considers that it is better to follow the path traced by the Court of appeal. As a result, the short prescription of one year applicable to claims for injury or bodily injury does not apply in this case.
The Quebec legislature did not exclude the recourse in damages or compensation for unlawful interference to the rights and freedoms protected by theCharterof the application of the normal rules on prescription. We took the penalty provision in theCharter of rights the filing of a complaint with the Rights Commission suspends for a certain period the prescribing of any civil remedy for the subject of the complaint.
The duration of this requirement, apart from the case already mentioned of action for personal injury or the case of an action for breach of a contractual obligation, it was concluded that an action for compensation for infringement of the rights or freedoms protected by theCharter of rights is an action for damages resulting from an offence or a quasi-offence shall according to that the infringement is intentional or not, and it is prescribed by two years. This was already explained in the above mentioned Butterfly as well as the abundant jurisprudence in case.
Companies Emelda owns all buildings that are part of the corporate’s Mr. Coutu network, including the premises of Pavillon Saint-Théophile and Franc-people room. The space of the Pavilion are leased from Pavillon Saint-Théophile and Franc-people room is leased to 116467 Canada that administers it and the aggregate at Recreation Centre J.C. J.C. Foundation, for its part, administers the Recreation Centre bus J.C. and J.C. $ 150 Recreation Centre invoice output to cover its expenses. Beneficiaries lease the bus one or the other of these buildings.
Accordingly, the appeal of the Commission’s rights against companies Emelda Coutu, 116467 Canada and J.C. Foundation is a strictly tort remedy that is prescribed by two years. It is part of any contract with the beneficiaries of the Pavillon Saint-Théophile.
Moreover, the damages claimed by the Rights Commission against Mr. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre are the result of a breach of contractual obligations. When the meaning of the request, this remedy prescribed by 30 years.
Mr. Coutu is personally committed as trustee for each of the beneficiaries of the Pavillon Saint-Théophile. He also admitted this repeatedly. Recreation Centre J.C. channels his hands personal services not paid for by public funds. As such, it provides recreation, haircuts, movies, various hygiene products, clothing, etc.
For its part, Pavillon Saint-Théophile is engaged in two ways with the beneficiaries: firstly directly, taking it as recipients in the establishment; Secondly, through the stipulation for others listed in the contract concluded between him and the Ministry of health under the Health Act.
By this agreement, Pavillon Saint-Théophile is committed to provide the adequate social health services on both scientific, human and social, with continuity and custom manner considering the Organization of its resources to each of the beneficiaries. According to the Honourable Baudouin, the stipulation for a third person is a legal operation by which a person, called the promisor, commits to another, called stipulating, to carry out an obligation for the benefit of a third party. The operation is therefore a triangular arrangement with effect of making a third party who is not a party to the contract, the contractual creditor of promising.
Further, it adds that the acceptance of the third party can be done by any means and may be also well express that implied, but has however not create the right of claim of the latter. This right to claim exists indeed in its heritage from the moment of the conclusion of the contract between stating it and the promisor, acceptance being confirmed.
Finally, the Honourable Baldwin stressed that the stipulation for a third person creates a direct link between the promisor and the third party beneficiary. Between them, there is therefore a debtor-creditor relationship and the third to a direct remedy against the promisor to ensure enforcement of the promise. However, latter may oppose him in defence all means resulting from the main contract with himself, stating it such defects of consent, the latent defects affecting the thing, etc.
The contractual activities, Mr. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre operated beneficiaries and took advantage of their disabilities and their weaknesses for the sole purpose of generate and increase the profits of their network. The reasons for this conclusion are abundantly demonstrated. On the other hand, it would be superfluous to recall that the obligations of a contract extends not only to what is expressed, but all consequences resulting from his nature, and according to equity, usage or law yet.
Mr. Coutu, Pavillon Saint-Théophile and Recreation Centre J.C. violated contractual obligations they have subscribed to the place of the beneficiaries. Although contractual obligations form one of the major obligations, they do not expressly object of a provision of the civil Coderegarding prescription. Thecivil Codeprovides for also the rights of action which the prescription is not otherwise regulated by law, prescribe by 30 years. The Honourable Baudouin outlines the general a 30-year limitation period applies to contractual liability lawsuits. Finally, it stressed that the claim for exemplary damages piggybacks, in principle, to a principal claim for damage to the person and property and is to be followed in this connection with the prescription.
In the case of Sandra, the supreme court said that damages claimed for damage to personal, social, or professional reputation for humiliation, mental pain, and even physical, arise in the case of a single cause of action: irregular room of Montréal buildings, in other words, of a breach of contractual obligations which it within 30 years the suspension and expulsion. It is also in this case.
3.9.3 Absolutely impossible in law and in fact to act
In support of their claim for absolutely impossible in law or in fact to act, the Rights Commission, the Committee of the beneficiaries and the public trustee invoke shutdown
of the supreme court in the matter, Oznaga. In that case, the Crown corporation acted so as to hide the existence of the facts of the law, Mr. Oznaga, thus delaying the opportunity take the procedures and send useful advice.
In this case, the circumstances are different. Accordingly, the Tribunal finds that neither the Rights Commission, or Committee of the beneficiaries, the public trustee nor Mrs. Carpentier, finally who have been absolutely impossible in law or in fact to act.
Indeed, just read the complaint of July 13, 87, of the Committee of the beneficiaries and the request for an investigation from September 10, 87, of Mrs. Carpentier to evidence that neither one nor the other were in absolutely impossible to act. Furthermore, all allegations ofexploitation chosen by the Rights Commission in its recommendation of January 25, 91 were already in the complaint of the Committee July 87 recipients and in the request for an investigation of Mrs. Carpentier’s September 10, 87. Therefore, the facts of law are invoked and that it has relied on later, were already known in 87. It goes the same for the public trustee.
The recipients, Ms. Carey as well as the public trustee Committee also acted. Since the beginning, they have retained prosecutors; They complained of the practices put in place by Mr. Coutu and its companies; they have sent complaints. they made requests for investigation; they attended the investigation and at any time, they argued their rights.
Beneficiaries and their representatives were aware of all the elements required to bring an action against Mr. Coutu and his network of companies. In addition, Mr. Coutu, Pavillon Saint-Théophile and his network of companies have never sought to hide the existence of practices that they had put in place, both for the management of the allocation of personal expenses, work of the beneficiaries or the conditions of life imposed on them. On the contrary, everything was admitted and known at any time. They only defended himself by claiming that these practices were normal and acceptable; they were known and accepted by all; could not be better seen the status of the Pavilion and saw budgetary constraints.
In a particularly elaborate judgment, the Superior Court said the restrictive interpretation that must be given to the expression “absolute impossibility in fact and in law to act”. The Honourable Archambault says:
“This review of doctrine and jurisprudence emphasized the special nature of cases where our courts are found in the sense of an apparent extension of the limitation period by decrease of its starting point due to total and invincible ignorance in which there were the victim and those who might normally have represent it, is the identity of the author of the delict”, to the existence of the damage himself.
This confirms the principle recalled by Pierre Martineau, concerning the restricted application imposes the absoluteness of the impossibility to act mentioned in article 2232 C.C.
Accordingly, cannot be considered as creating this impossibility to act the difficulty or delay in research and collection of necessary evidence.
Later, the Honourable Archambault says do not confuse absolute impossibility in fact or in law to act with the difficulties to manage evidence as to the essential elements of the application that they are known. In this regard he adds:
“All these factual aspects of the case reported difficulties in relation to the administration of proof and demonstration of the right, but is not absolutely impossible in fact or in law to act mentioned in article 2232” “Otherwise, no one would be entitled to take action before or unless it is assured of a favorable judgment.”
This judgment was upheld by the Court of appeal, which says that it is false to claim that the applicant is absolutely impossible in fact or in law to act on the sole ground that it has not determined that the gestures or the responsible practices are actually wrongful.
Moreover, in the Richercase, the Superior Court said through
the Honourable Savoie it is not absolutely impossible in law or in fact to act when the damage is existing in the accident, although its scope and its aftermath are not fully known. Ignorance of the extent of damage is not equivalent to the absolutely impossible to act referred to thecivil Code.
The Rights Commission seems to claim that it was impossible in law to act until its investigation was complete and as long as had not ruled on the existence of theoperation and the infringement that it checked. This argument has already been considered and rejected by the superior court in the case of The city of Québec. Although the judgment in this case have broken on appeal, the Court of appeal did not alter the reasoning of the Honourable Rioux of the superior court which pointed out that the legislature is expressed with clarity to tell the Commission the rights that the maximum period of interruption of the prescription for the purposes of his investigation was limited to one year. The Honourable Rioux is expressed thus:
“This argument cannot hold, because the legislature has itself provided for the maximum period of interruption of prescription, which is one year after the request for an investigation.” It is the Commission itself which was the case at hand since the request received by it on December 14, 1978, and it has taken action on September 3, 1981. Clearly, the legislator comp-.
The Tribunal fully shares this reasoning. As a result, we conclude that the Rights Commission was not absolutely impossible in law or in fact to act because of the length of his investigation.
On the question of prescription, we therefore conclude that demand against companies Emelda Coutu, 116467 Canada and Foundation Jean Coutu prescribed by two years, whereas the appeal against Mr. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre within 30 years. Furthermore, neither the Commission rights, nor the Committee of beneficiaries, the public trustee or Mrs. Carpentier was absolutely impossible in law or in fact to act.
The earliest date where acts at the origin of the request were posed by Mr. Coutu and his network of companies is March 31, 88, while the Ministry of health brought an end to their administration. Furthermore, the application was only filed at end August 91 and served on September 3. Even by removing this long period, the maximum one year suspension then provided by the legislature for the conduct of the Commission’s investigation, it was concluded that demand against companies Emelda Coutu, 116467 Canada and Foundation Jean Coutu was prescribed and absolutely turned off when she was brought.
Mr. Coutu advertising Rights Commission and companies it controls 2,060,000$ in moral and punitive damages.
3.10.1 Moral damages
Rights Commission calls for moral damages, $ 4,000 for each of the beneficiaries for each year of stay in the Pavillon Saint-Théophile between January 1, 84 and 31 December 88. Such damages arise from three sources: the appropriation of the monthly allowance of recipients; the work of the beneficiaries; the living conditions imposed on them.
These grievances are designed as protection against any form ofexploitation of the beneficiaries as persons with disabilities, that protection and safety that must provide the persons who take the place of their family. In violation of each of these rights, it has infringed several fundamental rights and freedoms of the beneficiaries.
Apart from theoperation itself, Mr. Coutu and its companies focused dignity of beneficiaries. Human dignity is the cornerstone of all other rights and freedoms of the individual. TheUniversal Declaration States in the first paragraph of its preamble, that the recognition of the dignity inherent in all members of the human family and their equal and inalienable rights is the foundation of freedom, justice and peace in the world. Later, in his first article the Universal Declaration States that all human beings humans are born free and equal in dignity and rights. For its part, theQuebec Charter of rights sets out in the second paragraph of the preamble that all human beings humans are equal in value and dignity and are entitled to equal protection of the law.
This special place reserved for human dignity is based on the principle that every human being has an intrinsic value that makes it worthy of respect. For the same reason, every human being is entitled to recognition and exercise in full equality of the rights and freedoms of the individual. The right to human dignity is in no way diminished or modified when it targets people with disabilities victims of intellectual disabilities.
Dans un commentaire particulièrement éloquent, l’honorable Fishs’exprime à cet égard comme suit:
“With the greatest of respect, I do not believe the right of human beings to the safeguard of their dignity is to be measured, under the charter, according to the sense of decency (or “sentiment de pudeur”) of the unfortunate victims in this case. It is not their apppreciation of dignity – but rather that of the reasonable and well-informed members of society -that is the value system enshrined in the charter. And surely the right to human dignity is not forfeited by those who, for whatever reason, are incapable of detecting its violation.
From the facts as found by the trial judge, I have no doubt that the right of the members of the group to the safeguard of their dignity was interfered with illegally and intentionally by the very persons whose vocation it was to protect that right. This alone was a proper basis for ordering exemplary damages: the interference was not only illegal and intentional, but also planned, concerted, persistent and, for the reasons given by Nichols J.A., socially unacceptable.”
Le Tribunal partage cet avis et conclut qu’il s’applique pleinement au cas présent.
Mr. Coutu acts as trustee of the monthly allowance of recipients. He was thus pay about $ 10,000 monthly. By the establishment of a gravitating system around its visitor centre, it manages to give legal skins to a system with the purpose of overcharging beneficiaries. He participated knowingly in the diversion and the appropriation of monthly allowances. He admits himself that the establishment of the system is designed to overcharge for services rendered. It violates his fiduciary obligations and with the support and complicity of his companies, he appropriates unreasonably for the money it holds in ignoring the interests of the beneficiaries. It provides a financial benefit by concealing the actual cost of the services that it has the obligation to provide to the beneficiaries at the cost through its network of companies.
With respect to the unpaid work, Pavillon Saint-Théophile, work teams are formed and tasks are identified and allocated to recipients. This work is neither free nor voluntary. If a beneficiary decides not to participate in the work, it undergoes a system of punishments and consequences. Work is mandatory but not stimulating; In addition, he is not paid. The first objective approach is looking for profits at the expense of the development and evolution of the beneficiaries.
As for the conditions at the Pavillon Saint-Théophile, beneficiaries live in an institutional framework where are favoured harmonization of activities by ignoring their capabilities, skills and needs. Imposed practice ignores the individual and deals with only the group.
Beneficiaries are subject to a rigid and questionable penalties system. The punishments are imposed on a daily basis. Some must wear the Pajamas for several days, while others are physically attached by restraints for several hours. Some are deprived snack, pocket money or outputs. In no way does is considered the inability of beneficiaries understand the punishment imposed and its meaning.
The beneficiaries are supervised and punished by a staff with no training. The system of recruitment of staff as well as the management system, as well as mentoring and supervision of recipients, are inadequate.
The conditions of life inflicted have the effect of infringing their rights to freedom, to dignity, honour and to their reputation and integrity.
The obligation to the beneficiaries is to provide them with the environment as normalizing as possible. However, not only it does not reach this goal, but one moves away. The expert, Mr Bertino, said that apart from basic needs like eating and sleeping, who are satisfied, other needs of beneficiaries did not met. In this respect, it is expressed as follows:
“… It is a detrimental to individuals. But in terms of development in his broadly, there, I am not referring to school, at the University or… but development, i.e. to exist, laugh, grow well. I say and I am formal on this, with the elements that I had, I have vibrated them these elements there, for several periods and for a whole month, to which I have the right to reference, I say it is harmful.
It grows not in there as a person. And there, I do not at all call rehabilitation. “I appeal to normal activities that I have right in my life everyday and basic respect to which I am entitled, to the rhythms of life that I have right and how I need to be considered.”
The conditions at the Pavillon Saint-Théophile are such that beneficiaries are called to live in unhealthy and inadequate climate where services rendered are contrary to the requirements of the Health Act. All these elements contribute to steal beneficiaries of protection and safety that should bring their families and people who in lieu. In addition exploited.
In the matter of The Hospital of St-Ferdinand, the superior court was seized with a class action lawsuit on behalf of intellectual deficient recipients in a hospital, private care and services during an illegal strike. The Honourable Lesage stresses that to determine the damages in such a case, should wonder on the similarity of the harm suffered by all the beneficiaries of the centre and on the possibility of grouping certain beneficiaries and to identify specific damages for groups. One must analyze the harm from the context of the usual care. The injury is very subjective. Some suffer discomfort while others suffer from psychological distress.
In the Court of appeal, it was noted that victims are more vulnerable than others because of their mental disability. Since it was for incapacitated persons, their damage are strictly non-monetary nature. Civil law does not advocate functional thesis in any setting. Thus, do not search the demonstration that the compensation is liable to compensate or satisfy the victim. Only a loss objective must be compensated and measured personal way compared to what the victim is actually private. According to the Court of appeal, the discomfort is minimal harm and damage reduced to its simplest expression.
In the case that concerns us, beneficiaries all suffered damage and minimum disadvantages of the same nature in the same places and during the same period. Despite the fact that some did not have the same number of penalties, they were all inflicted arbitrarily. They were always the same: pyjamas, snacks cut, withdrawing pocket money, removal of outputs, etc. In addition, recipients lived in an unhealthy atmosphere, surrounded by people in pajamas, kneeling, etc. They were supervised by people with no training and abusing the system of punishments.
The beneficiaries are all financial victims ofexploitation through unreasonable use of their personal allowance, they are required to perform mandatory housekeeping jobs that are repetitive and non-stimulant while they are not paid. In addition to undergo an operation, they are all deprived of protection and safety that must provide a health care facility that serves as their family. In this case, there are no instead of dividing the group so as to identify some suffered more.
In the case of St-Ferdinand there are four periods of damage during the strike. The Superior Court set damages at $ 100 per day during the first period, $ 75 per day during the second, $ 50 per day during the third and $ 25 per day during the fourth. In this case, the amount claimed, if it was allocated as a whole, represent just $ 11 a day, which is minimal. It is not appropriate to distinguish between the months of stay with each other.
In the light of all these circumstances, the Tribunal finds that there is place to establish moral damages suffered by each of the beneficiaries to $ 300 per month for each month of stay at the Pavillon Saint-Théophile’s January 1, 84, to March 31, 88, such as elaborated in the following table.
3.10.2 The exemplary damages
Punitive damages, the Rights Commission calls for $ 3,000 per beneficiary for a total of about $ 300,000. To allocate this kind of damage, the Tribunal must conclude that the infringement of protected rights is unlawful and intentional interference.
Each of these requirements is met in this case. The infringement of protected rights is desired, conscious and deliberate. Mr. Coutu has set up a network of companies that allows billing of services rendered. This result corresponds to the objective ofoperation it was pursuing.
Moreover, unpaid compulsory work also demonstrates an intention to exploit the beneficiaries. Mr. Coutu candidly admits that the work done by the beneficiaries was designed to save a salary that would have reduced profits. Finally, the system
punishments set up at the Pavillon Saint-Théophile is managed and administered in an arbitrary way by the staff. This system is part of a total recklessness of the needs of the beneficiaries by persons responsible for ensure the same protection and the same security as members of their own family.
In the Gilfoylejudgment, the Court of Appeal concluded that it had not instead of allocating punitive damages, first because Mr Gilfillan had not acted intentionally. Second, because if he had acted intentionally, urban community have not ratified intentional; and finally, because an employer can be liable for exemplary damages allocated under theCharter of rights because its only link from employer to employee.
This case differs from the Gilfoyle judgment in several respects. First, Mr. Coutu and employees and employees of Pavillon Saint-Théophile and J.C. Recreation Centre have committed intentional violations of the rights of the beneficiaries. Second, unlike theGilfoylecase, where the urban community had not ratified or approved the actions of their agent, in this case, each of the actions of employees of Pavillon Saint-Théophile and J.C. Recreation Centre was set up, approved and ratified by management of both companies. Finally, the Tribunal has serious doubts as to the correctness of the assertion to the effect that it is now established that an employer may be liable for exemplary damages awarded under theCharter of rights because the only employer-employee relationship.
This assertion found in the judgment Gila refers to stop Vani where the Court of Appeal concluded that it was not held liable for exemplary damages against an employer. In this case, the victim was in a bar operated by appellant Vani. The attendant Pouliot crushes it a glass in the face causing the loss of an eye. The trial judge condemns in compensatory damages as well as punitive damages, both attendant Pouliot as the employer Vani.
Hear the appeal of the latter, the Court questioned the possibility to order an employer to exemplary damages for intentional infringement caused by his attendant. With many respects, the Tribunal is of the opinion that the Court of appeal has not answered this question in the negative because it concluded that the officer did not himself intentionally door reached on the rights of the victim, so that the question did not arise. The Honourable Vallerand is expressed in this regard as follows:
“In the case of unlawful and intentional interference…” The provision applies to the principal that the attendant is responsible for an intentional hit that one has never wanted? The question is not devoid of interest, although it arises not here, although the agent itself has not intentionally made the physical integrity of the victim. “The error of omission than that, without in any way to the unlawful interference, did not have the means at its disposal to prevent it is not the author of an unlawful and intentional interference within the meaning of the Act.”
In Robichaud, the supreme Court of the Canada States that the fundamental objectives of our society which are expressed in the various charters of rights and freedoms require the condemnation of employers for the wrongful acts of their employees when they are connected in any way to the job in question. It was in the case of an employee who has engaged in sexual harassment against a coemployee. InJanzen, the supreme court reaffirmed the principles issued inRobichaud and employer to exemplary damages.
Without necessarily subscribe to the nuances contained in the Robichaud case and stopping Janzen, the Tribunal, with a lot of respects, is of the opinion that these principles apply equally in the context of theCharter Quebec of rights and freedoms. Moreover, the solution that makes the employer responsible for the wrongful acts of its employees is not foreign to the civil law in such circumstances.
Even when the infringement of rights is unlawful and intentional interference, the conviction to exemplary damages is not automatic. The legislature clearly indicates that the tribunal “may” also ordered the author to exemplary damages. This is also stated by the Honourable Fish in Hospital St-Ferdinand. Furthermore, in the same judgment, the Honourable Nichols CITES with approval the comments of the Honourable Knight in the case of employees and employees of public services Federation where it pointed out that the quantum of exemplary damages is left entirely to the discretion of the Court.
Exemplary damages are double intended to express the disapproval of society against intolerable conduct and prevent a similar attitude in the future, as much by the offenders than by those who would be tempted to imitate them. This was also recognized in Hospital St-Ferdinand. For his part, Professor Perret says:
“The damages and punitive damages will be paid, by the author of intentional fault, to the victim that will have claimed them.” They are intended to punish and anti-social behaviour, as well as to serve as deterrent example for anyone who commits such behaviours in society. “These damages and punitive damages are also often called, exemplary damages.”
The criteria to assess exemplary damages are the conduct of the wrongdoer; the harm suffered; the quantum of compensatory damages to the victim; the aspect of preventive, deterrent or punitive damages; the profit made by the author of the damage; the means of the author. In the case of Hospital St-Ferdinand, added that there is place to take account of the number of victims and the fact that it is of particularly vulnerable victims.
In the light of all these principles and criteria, the Tribunal finds that there is place to condemn Mr. Coutu, Pavillon Saint-Théophile and J.C. Recreation Centre jointly and severally to exemplary damages and to fix this damage to a total amount equivalent to $ 30 per beneficiary per month of stay in Pavillon Saint-Théophile such period as detailed in the table below. This amount represents on a monthly basis, but it totals an amount reasonable and adequate when considered globally.
3.11 Table of the amounts allocated to the beneficiaries
For all the reasons expressed above, the Tribunal finds that there is place to allocate to beneficiaries the amounts hereinafter indicated:
NAMES OF MORAL COPIES STAY
ADAIR, Simon 46 months 13,800 1,380
ALLARD, Huguette 51 months 15,300 1,530
BEAUCHEMIN, Claude 51 months 15,300 1,530
BEAUDOIN, Gérard 51 months 15,300 1,530
BEAUPRÉ, Louise 51 months 15,300 1,530
BÉGIN, Simon 51 months 15,300 1,530
BÉLANGER, Lucie 51 months 15,300 1,530
Welcome, Madeleine 48 months 14,400 1,440
BIGRAS, Denise 49 months 14,700 1,470
BIZIER, Madeleine 41 months 12,300 1,230
BLANCHETTE, Lise 51 months 15,300 1,530
BOISVERT, Onezime 51 months 15,300 1,530
CANDLE, Pierrette 17 months 5,100 510
BRAULT, Nicole 51 months 15,300 1,530
FOG, Rollande 51 months 15,300 1,530
TILE, Gilbert 51 months 15,300 1,530
CAREER, Mariette 51 months 15,300 1,530
CECERE, Angelo 29 months 8,700 870
CHABOT, Denis 51 months 15,300 1,530
CHARBONNEAU, Real 51 months 15,300 1,530
CHÂTEAUVERT, Pierre 51 months 15,300 1,530
DELAGE, Liliane b. 51 months 15,300 1,530
DESJARDINS, Georges 51 months 15,300 1,530
Ekundayo AYODELE, Normand 51 months 15,300 1,530
DOIRON, Michel 51 months 15,300 1,530
Gold, Jacqueline 51 months 15,300 1,530
DUBÉ, Michel 51 months 15,300 1,530
DUBOIS, Louise 51 months 15,300 1,530
DUTTON, Ronald 50 month 15,000 1,500
FOUNTAIN, Daniel 51 months 15,300 1,530
FORTIN, André 51 months 15,300 1,530
GAULIN, Jean-Pierre 51 months 15,300 1,530
GAUVIN, Danielle 51 months 15,300 1,530
GENDRON, Hélène 51 months 15,300 1,530
Nice, Richard 51 months 15,300 1,530
GIGNAC, Marie-Josée 41 months 12,300 1,230
GRAVEL, Georges 41 months 12,300 1,230
GRISE, Ginette 51 months 15,300 1,530
GUAY, Lise 51 months 15,300 1,530
Goncalves, Adrien 51 months 15,300 1,530
HEBERT, Diane 27 months 8,100 810
HEBERT, Guy 51 months 15,300 1,530
HÉTU, Pauline 27 months 8,100 810
HUDON, Pierre 51 months 15,300 1,530
KAROSIS, Pierre 51 months 15,300 1,530
KURLUK, Micheline 51 months 15,300 1,530
LACERTE, Sonia 51 months 15,300 1,530
LAMBERT, Cécile 21 months 6,300 630
LANDREVILLE, Jean 51 months 15,300 1,530
LAROUCHE, Jocelyn 51 months 15,300 1,530
LATOUR, Jocelyne 49 months 14,700 1,470
LAURIN, Francine 51 months 15,300 1,530
LAUZON, Georgette 51 months 15,300 1,530
LAVOIE, Aurore 51 months 15,300 1,530
LAVOIE, Gilles 51 months 15,300 1,530
LAVOIE, Jean 51 months 15,300 1,530
LAVOIE, Pierre 51 months 15,300 1,530
LAVOIE, Serge 51 months 15,300 1,530
LEBLANC, Marc 51 months 15,300 1,530
LEBOEUF, Yvon 21 months 6,300 630
LEBLANC, Marc 51 months 15,300 1,530
Claude 41 months, LECAVALIER 12,300 1,230
LEDUC, André 29 months 8,700 870
LIGHTWEIGHT, Raymonde 51 months 15,300 1,530
LEPINE, Elaine 21 months 6,300 630
LÉTOURNEAU, Christian 51 months 15,300 1,530
LÉVESQUE, Marjolaine 51 months 15,300 1,530
LEVESQUE, Roger 51 months 15,300 1,530
The happy, Jacques 51 months 15,300 1,530
MARCIL, Pierre 51 months 15,300 1,530
MARQUIS, Denis 51 months 15,300 1,530
MARTEL, Diane 51 months 15,300 1,530
MARTEL, Michel 51 months 15,300 1,530
MESSIER, Jean-Claude 51 months 15,300 1,530
MONDELLI, Frederico 51 months 15,300 1,530
MONETTE, Robert 25 month 7,500 750
MORIN, William 51 months 15,300 1,530
NANTEL, Richard 49 months 14,700 1,470
Nero, Guy 46 months 13,800 1,380
OUELLETTE, Micheline 51 months 15,300 1,530
PARISIEN, Paul 51 months 15,300 1,530
PATENAUDE, Michel 51 months 15,300 1,530
PHARAND, Claudette 21 months 6,300 630
POIRIER, Jean-Pierre 51 months 15,300 1,530
RICARD, Raymond 51 months 15,300 1,530
ROBILLARD, Pierrette (D) 7 months 2,100 210
ROUSSEAU, Gisèle 51 months 15,300 1,530
ROY, Danielle 51 months 15,300 1,530
ROY, René 51 months 15,300 1,530
ROZON, Lise 51 months 15,300 1,530
SALOIS, Gilles 51 months 15,300 1,530
ST – CYR, Jacqueline 49 months 14,700 1,470
ST-JEAN, Roland 46 months 13,800 1,380
THÉRIEN, André 51 months 15,300 1,530
THIBEAULT, Gaétan 49 months 14,700 1,470
THIBEAULT, Yvon 51 months 15,300 1,530
TOUGAS, Monique 51 months 15,300 1,530
VILLENEUVE, Monique 51 months 15,300 1,530
VINCENT, Monique 51 months 15,300 1,530
WOOD, Wilfrid 47 months 14,100 1,410
Taking into account the particular circumstances of this case, punitive exemplary damages aspect, and the date of the amendment made to the quantum claimed, the Tribunal finds that the interests as well as additional compensation awarded on the amounts of conviction should only run from the date of this judgment.
FOR THESE REASONS, THE TRIBUNAL:
Rejects the claim against companies Emelda Coutu Ltd., 116467 Ltd., Foundation Jean Coutu Canada and the companies A.P.A.D. Inc..;
Condemnedjointly and severally, Jean Coutu, Centre d’accueil Pavillon Saint-Théophile Inc. and Recreation Centre J.C. for deficient mental to pay to the Commission of human rights of Quebec to the reset of the beneficiaries of the Pavillon Saint-Théophile, a total amount of 1,413,300$ in compensatory damages and $ 141,330 in punitive damages, with interest from the date of this judgment to the rate fixed according tosection 28 of theAct the Department of revenue;
The wholewith costs.
TABLE OF CONTENTS
1. The issues 4
2. Facts 5
3. Patterns 15
3.1 The 15 applicable law
3.2 International instruments 17
3.3 Hosting Services
vs Rehabilitation Services 21
3.4 Complaint vs Pavillon St-Théophile
3.5Operation of 24 beneficiaries
3.5.1 The appropriation of allo-24
3.5.2 The forced labour of the bene-
3.6 The breach and to
the safety of the 33 beneficiaries
3.6.1 The absence of qualifications
3.6.2 Dress of
3.6.3 The language of staff to
the location of the 40 recipients
3.6.4 The infantilization of the bene-
3.6.6 The system of penalties 45
3.7 The acquiescence of families and
the Department of health 47
3.8 The intentional aspect 48
3.9 The 50 prescription
3.9.1 The applicable law
3.9.2 The time to prescribe 52
3.9.3 The absolute impossibility
in law and in fact to act 58
3.10 64 Damage
3.10.1 64 Moral damages
3.10.2 Exemplary damages 71
3.11 Table of the amounts allocated
See supra note 1, art. 4
See supra note 1, art. 5
[[ 4]See supra note 1, art. 6
[[ 5]See supra note 1, art. 10
[[ 6]See supra note 1, article 48
[[ 7]See supra note 1, art. 49
[[ 10]Universal Declaration of the human rights, General Assembly of the United Nations, resolution 217 A (III), of 10 December 1948, art. 25
[[ 11]Declaration of the rights of the deficient mental, the UN General Assembly, December 20, 71, resolution 2856 (XXVVI) preamble
[[ 12]See supra note 11, s. 1
[[ 13]See supra note 11, art. 2
[[ 14]See supra note 11, art. 3
[[ 15]See supra note 11, section 4
[[ 16]See supra note 11, art. 5
[[ 17]See supra note 11, art. 6
[[ 18]See supra note 11, art. 7
[[ 19]Declaration of the rights of disabled persons, General Assembly of the United Nations, December 9, 75, resolution 3447 (XXX), s. 1
[[ 20]See supra note 19, art. 2
[[ 21]See supra note 19, art. 3
[[ 22]See supra note 19, art. 5
[[ 23]See supra note 19, art. 6
[[ 24]See supra note 19, art. 7
[[ 25]See supra note 19, art. 8
[[ 26]See supra note 19, art. 9
[[ 27]See supra note 19, art. 10
[[ 28]See supra note 8, art. 4
[[ 29]Jean Coutu & Als v. Human Rights Tribunal and the Quebec Human Rights Commission & Als, (C.A.) 1993 CanLII 4285 (QC CA), (1993) R.J.Q., p. 2793
[[ 30]See supra note 29, pp. 2799-2800
[[ 31]Commission on human rights of Quebec v. Brzozowski (T.D.P.Q.) 1994 R.J.Q. 1447 to p. 1471
[[ 32]See supra notes 1 and 6
[[ 33]See supra note 1, art. 13
[[ 34]See supra note 8, art. 142
[[ 35]See supra note 1, art. 49
[[ 37]See supra note 36, art. 2262
[[ 38]See supra note 36, art. 2261
[[ 39]See supra note 36, art. 2266
[[ 40]See supra note 36, art. 2267
[[ 41]See supra note 36, art. 2242
[[ 42]See supra note 36, art. 2232
[[ 43]See supra note 36, art. 2269
[[ 44]See supra note 1, article 70.1
[[ 45]Butterfly & al. v. Commission scolaire de Portneuf, (1994) 20 c.h.r.r. d / D/140;
Poliquin v. College of Victoriaville, (T.D.P.) 1992 CanLII 1657 (QC TDP), (1993) R.J.Q. 350;
Voltaire v. Commission scolaire Chomedey de Laval, (T.D.P.) 1992 CanLII 1972 (QC TDP), (1993) R.J.Q 340.
[[ 46]Commission on rights v. city of Quebec (C.S.) reflex, (1986) R.J.Q. 243.
Brisson c. Leduc & Al(C.S.) reflex, (1988) R.J.Q. 1623;
Commission on human rights of Quebec v. Montreal urban community (1983) 4 C.H.R.R., p. 1302;
Commission on human rights of Quebec v. Montreal urban community (C.S.) 1987 CanLII 1007 (QC CA), (1987) R.J.Q 2024;
Commission on human rights of Quebec v. Communauté urbaine de Montréal, J.E. 83-458 (C.S.).
[[ 47]Hôpital Notre-Dame v. Patry (1975) 2 S.C.R. 388
[[ 48]Gagnon v. Béchard 1993 CanLII 4017 (QC CA), (1993) R.J.Q. 2019
[[ 49]See supra note 1, article 70.1, now art. 76
[[ 50]See supra notes 45 and 46
[[ 51]See supra note 8, art. 176
[[ 52]Baldwin, Hon. Jean-Louis,bonds, 3rd ed. 1989, no. 403, p. 261
[[ 53]See supra note 52, no. 409, p. 264
[[ 54]See supra note 52, no. 415, p. 267
[[ 55]See supra note 36, art. 1024
[[ 56]See supra note 36, art. 2242
[[ 57]See supra note 52, p. 528 No. 875
[[ 58]See supra note 52, no. 228, p. 155
[[ 59]Senez v. Montreal real estate (1980) 2 S.C.R. 555
[[ 60]Oznaga v. Société courses du Québec 1981 CanLII 28 (SCC)andoperation of lotteries, (1981) 2 S.C.R. 113
[[ 61]CHOW Gregory c. Federation québécoise de la Montagne (1981) C.S. 238
[[ 62]Gregory c. Fédération québécoise mountain, (C.A.) (1986) R.D.J. 256
[[ 63]Richer c. Larivière C.S. St-François 819-450-05-000287, Hon. Savoie, j.s.c., 10 May 1982
[[ 64]Quebec v. Quebec Human Rights Commission (city of), (S.C.) reflex, (1986) R.J.Q. 243
[[ 65]Québec (city of) v. Commission of human rights of Quebec, (C.A.) 1989 R.J.Q. 831
[[ 66]See supra note 10, preamble
[[ 67]See supra note 10, s. 1
[[ 68]See supra note 1, preamble
[[ 69]CONKLIN, Prof. William e., The Utilitarian Theory of Equality Before the Law, Ottawa Law Review (1976) 485, at p. 504
[[ 70]National Union of employees of the Hospital St-Ferdinand v. Quebec (public curator), (1994) R.J.Q. 2761, at p. 2818 (C.A.)
[[ 71]Curateur public v. national Union of employees of the Hôpital St – Ferdinand (C.S.N.), (1990) R.J.Q. (C.S.) 359
[[ 72]See supra note 70
[[ 73]See supra note 71
[[ 74]Augustus v. Gosset, C.A.M.: hon 500-09-001207-901, 500-09-001203-900, 500-09-001200-906,. Vallerand, Fish, Deschamps, jj.c.a., January 13, 95
[[ 75]Vani v. Couture, (1991) R.R.A. 493
[[ 76]Robichaud v. Canada (Treasury Board), (1987) 2 S.C.R. 84
[[ 77]Janzen v. Platy Enterprises Ltd., (1989) 1 S.C.R. 1252
[[ 78]See supra note 1, art. 49
[[ 79]See supra note 70, p. 2818
[[ 80]See supra note 70, p. 2805
[[ 81]Federation of employees and employees of public services Inc. (C.S.N.) v. Béliveau St-Jacques, 1991 CanLII 3767 (QC CA), (1991) R.J.Q. 279
[[ 82]See supra note 70, p. 2805
[[ 83]PERRET, Louis, the impact of the Charter of rights and freedoms on civil law contracts and liability in Quebec, Revue générale de droit, 12 (1981) 121, at p. 138
[[ 84]See supra note 70, p. 2805