RELIRE L’ARRÊT BÉLIVEAU ST-JACQUES POUR REDONNER VIE AU PREMIER ALINÉA DE L’ARTICLE 49 DE LA CHARTE QUÉBÉCOISE DES DROITS ET LIBERTÉS DE LA PERSONNE

Abstract

This paper proposes a re-reading of the decision in Béliveau St-Jacques (1996), a landmark decision that illustrates what Henri Mazeaud calls [TRANSLATION] “the force of attraction and the power of absorption of civil liability.” The Supreme Court of Canada, indeed, compares the concept of civil fault to the violation of a right protected by the Quebec Charter of Human Rights and Freedoms and, by extension, to the unlawful interference referred to in section 49. However, since 1996, the Béliveau St-Jacques decision has stood apart. In other decisions from the common law provinces, such as Seneca College v Bhadauria (1981), Robichaud v Canada (Treasury Board) (1987) and Vancouver (City) v Ward (2010), the Supreme Court has accentuated the remedial object of the (quasi-constitutional) human rights laws to support the autonomy of remedies for the infringement of rights and freedoms versus general law remedies. The Hon Louis LeBel, in de Montigny (2010), uses the contextual argument to distance himself from the interpretation made of s. 49, para. 1 in Béliveau St-Jacques, which is situated in a very specific set of facts. Echoing the question raised some years earlier: [TRANSLATION] “… with the coming into force of the Charters, what happens to the function of delictual liability in this area? Must its structural principles evolve to take account of this transformed legal environment?”