The tragedy of the nursery school in the Sainte-Rose district, in Laval, remains a drama, human above all. If tears spring, one can ask the question: what is their price?
As such, it is permissible to break away from criminal law and mobilize the law of civil liability. Personal civil liability aims to compensate for any prejudice, whether moral (suffering) or material (breakage or loss of property), in the face of proof of three cumulative conditions: a fault on the part of the agent who caused the damage suffered by the victim. It is necessary to insist on the fact that, to commit a fault, the author must be competent, that is to say be able to understand the nature, scope and consequences of his act.
More specifically, the question that arose is the following: is it possible to compensate relatives (think of parents, grandparents, friends) affected by the death of a direct victim? How much should they be awarded in damages?
The Supreme Court of Canada’s decision in Augustus v. Gosset1 gives a positive answer to the question. This case concerns an action brought following the death of a young black man aged 19, caused by the shooting of a police officer, in Quebec. The boy’s mother seeks compensatory damages as solatium doloris. This Latin expression corresponds to the price of the consolation of grief and moral pain that arises from the death of a loved one.
Moving away from the common law’s traditional reluctance to recognize the solatium doloris as compensable non-pecuniary damage, the highest court in the country granted this claim. He grants a sum of $25,000 in this respect.
While we can congratulate ourselves on the recognition of this head of prejudice, in Quebec civil law, the modest nature of the sum granted testifies to the difficulty, if not the impossibility, of adequately quantifying the pain of a parent caused by the death of a child. The court writes to this effect:
“It is not difficult to conceive that the death of one’s own child represents an extremely painful event, even traumatic, in all respects. The suffering that accompanies this unnatural event is only matched in intensity by the immeasurable joy that the birth of a child can provoke. This suffering is so acute that it seems impossible even to evaluate it in terms of money. (para. 47)
Faced with this delicate exercise of assessing the moral prejudice resulting from the death of a loved one, the court developed certain criteria “for the sake of preserving even a little the objectivity of this approach which, while showing sensitivity to the particularities of each case, cannot ignore the limits of the principle of full restitution” (para. 48).
Depending on the circumstances of each case, the courts should consider in particular the following criteria: “the circumstances of the death, the age of the victim and the parent, the nature and quality of the relationship between the victim and the parent, the personality of the parent and his ability to manage the emotional consequences of the death, the effect of the death on the parent’s life in light of, among other things, the presence of other children or the possibility of having others. Since monetary compensation, whatever it is, will not alleviate the pain of the parent, the figure will necessarily be arbitrary to a large extent” (para. 50).
However, in the case of the nursery school in the Sainte-Rose district, it is necessary to point out a key fact: the situation involved a motor vehicle, in this case a bus. The state compensation scheme of a social nature based on the Motor Insurance Act applies. When the deceased is a minor, his parents can apply for a lump sum death benefit and for funeral expenses from the Société de l’assurance automobile du Québec. There is no need to assert an action before the courts and to lend oneself to this perilous exercise of evaluating the price of tears… On the other hand, automatic compensation is necessarily arbitrary…
1 [1996] 3 SCR 268