Hockey Rioters not Liable for the Acts of their Fellow Miscreants.

In August 2016, my partner Kurt A. Johnson wrote about the case of City of Montreal v. Lonardi, 2016 QCCA 1022 (“All for one, and one for all!”), where the Court of Appeal found that there was no solidary liability for rioters following a Canadiens game.

 In its recent decision in Montréal (Ville) v. Lonardi, 2018 SCC 29 the Supreme Court of Canada had to decide whether the citizens who had rioted after the Canadiens won a playoff game against the Boston Bruins in April 2008, could be held solidarily liable for damages to City property that they had not damaged themselves.

Fifteen patrol cars were vandalized during the riots. The police investigation resulted in the identification of 20 people who were involved. The City instituted individual civil actions for each vehicle that was damaged and sued all of the identified rioters in each action whether they had done damage to that vehicle or not. It sought solidary liability against all of the defendants in each action.

The Court of Quebec (the court of first instance) had ordered the defendants to pay damages for the injuries caused by their individual actions, rather than on a solidary basis. The Court of Appeal upheld that decision, holding that arts. 1480 and 1526 of the Civil Code of Quebec (which provide for solidarity where there is an extra-contractual fault) were not applicable in the circumstances.

The Supreme Court of Canada, in a 6-1 decision, Justice Côté dissenting, dismissed the appeal.

In his majority decision, Justice Gascon summarized the Court’s decision as follows:

This appeal illustrates the apparent conflict that sometimes exists between two core principles of extracontractual liability in Quebec civil law. The first of these principles is that of full compensation for injury. The second is the principle that, unless an exception applies, a person is liable for reparation only of injuries caused by his or her own fault.

The Civil Code of Québec (“C.C.Q.” or “Code”) establishes a scheme that strikes a balance between these principles. Article 1457 of the Code provides for full compensation for injury caused by a fault. Article 1525 para. 1 provides that solidarity between debtors is not presumed. Articles 1480 and 1526 set out the circumstances in which there is a solidary obligation to make reparation for injury caused by an extracontractual fault. The Code thus lays down the general principle that a person is liable only for damage he or she causes, but qualifies this principle to favour full compensation of a victim who suffers a single injury as a result of extracontractual faults committed by two or more persons. However, because solidarity represents a deviation from the general principle, it must be applied strictly.

The central issue in this appeal requires the application of these principles. It may be summed up as follows: To what extent can a rioter who has caused property damage be held solidarily liable to the victim for damage done to the same property by other rioters?

I agree with the Court of Appeal and the Court of Québec that the facts of these cases do not support the application of the articles of the Code that provide for solidarity in cases of extracontractual fault. The evidence is such that it is possible to determine what specific damage to the victim’s property was caused by each of the identified rioters. That being the case, this legislative scheme cannot be circumvented by imposing liability in solidum in this context either. The appeal must therefore be dismissed.

Before getting into the merits of the decision, Justice Gascon reminded his readers that:

Hockey is a tradition that is of particular significance in Montréal. Every spring when the Canadiens are in the playoffs, the city’s mood varies with the success or failure of its team. On the night of April 21, 2008, the Canadiens were playing the Boston Bruins. The rivalry between the two teams is legendary. Excitement was at a fever pitch. It was the seventh game of the series, and the teams were tied. When the Canadiens won the game and eliminated their archrivals, the jubilant crowd went out to celebrate downtown. The spontaneous gathering was initially festive, but unfortunately turned into a riot as the evening progressed. Numerous acts of mischief were committed over a period of more than three hours. These included the vandalizing of 15 patrol cars belonging to the police department of the appellant, Ville de Montréal (“City”). Nine of the cars were total losses; the other six required major repairs.

Fantastic! Perhaps there is a novel in Justice Gascon’s future? I digress.

Justice Gascon reasoned as follows: since solidarity is not presumed and must be interpreted narrowly in Quebec law, the principles of art. 1480 CCQ must be established in order to find co-defendants solidarily liable. That article reads:

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

As noted by Justice Gascon:

Two conditions must be met for this article to apply. First, it must be impossible to determine which person actually caused the injury. Second, there must have been either “join[t participation] in a wrongful act which has resulted in injury” or “separate faults each of which may have caused the injury”. Neither of these conditions is met here. The solidary liability being claimed by the City on this basis has not been established.

The court held that these conditions are cumulative; one must establish that it was impossible to determine who committed the fault and that there was joint participation or separate faults that might each have caused the injury. Two interpretations of the French version of the text were possible, but:

As the Court of Appeal observed, however, the English version of art. 1480 C.C.Q. is unequivocal. The phrase “in either case” conveys a choice between only two things, not between an indefinite number of things. The English version therefore excludes the possibility that the requirement that it be impossible to identify the person who committed the fault that caused the injury applies only to the situation in which there are separate faults, the number of which is indeterminate.

The English and French versions of Quebec statutes are equally authoritative. Here, the English version of art. 1480 C.C.Q. does not conflict with the French version; rather, it confirms the most natural reading of the French words. It follows that the only possible interpretation is that the words “dans l’un ou l’autre cas” link that requirement to both the scenarios contemplated in art. 1480 C.C.Q., that is, both that of joint participation in a wrongful act and that of separate faults. (Emphasis added, citations removed)

This interpretation is also the one that is most consistent with the scheme and object of the statute and with the intention of the legislature.

This is true because we have a fault-based system where causation plays an important role: one should only be held liable for the injuries caused by one’s own fault:

The general civil liability framework set out in art. 1457 C.C.Q. is based on the concept of fault. Unless an exception applies, a person is accordingly liable to pay compensation only for damage caused by his or her own fault.

It is consistent with the scheme of our civil liability system to interpret art. 1480 C.C.Q. such that, in every case, solidarity can be imposed only if it is impossible to identify the person who committed the fault that caused the injury. To limit this outcome to cases involving separate faults, while excluding those involving joint participation in wrongful acts from the scope of this provision, would place the provision in conflict with the central role of causation in the scheme of extracontractual liability established by the Code. (citations removed)

Article 1480 CCQ was adopted to protect victims in circumstances where it was impossible to determine who had caused the injury. Where it is possible to determine who caused the injury, there is no need to resort to art. 1480 CCQ:

It was in the name of fairness that the legislature chose not to leave a victim without recourse where two or more persons have jointly taken part in a wrongful act or have committed separate faults and it is impossible to determine who committed the fault that actually caused the injury. As the Minister of Justice mentioned, art. 1480 C.C.Q. resolves the problem of apportionment of liability among those who are at fault. He added that, in the cases contemplated in art. 1480 C.C.Q., the rule of solidarity applies [translation] “to protect the victim, because, in the circumstances, the victim is unable to establish a causal connection between the injury he or she suffered and the causal fault” (ibid.). The legislature has thus ensured that the victim does not bear the consequences of evidentiary difficulties that can be attributed to the situation in which he or she has been placed by the persons who committed the faults.

Where it can be shown which fault caused which injury, however, there is no indication that the legislature had any intention of deviating from the general principle of civil liability that a person is liable for reparation only of injuries caused by his or her own fault. (Emphasis added, citations removed)

In this case, it was not impossible to determine who was responsible. Accordingly, art. 1480 CCQ did not apply.

Considering the second criterion, the Court also upheld the trial judge’s finding that the participation in a riot was not “joint participation in a wrongful act”:

On the subject of this second condition for the application of art. 1480 C.C.Q., the trial judge concluded from his assessment of the evidence that the facts did not support a finding of joint participation in a wrongful act. I wish to make it clear here that the trial judge did not merely hold that the riot as a whole did not constitute joint participation in a wrongful act. His analysis also focused on the fact that the defendants did not have a common intention for the acts of vandalism they committed against each of the patrol cars in question in the 10 cases before him. And this was in fact the very question he had to answer, given the City’s election to bring a separate action for each damaged patrol car. Here again, his determination on the issue of joint participation in a wrongful act is not open to review absent a palpable and overriding error on his part. A simple difference of opinion about the assessment of the evidence does not suffice.

On balance, the trial judge found that the riot was not the cause, but the occasion, of the injury. He added that the common venture alleged by the City had not been established given the absence of a clear intention or a plot to commit mischief. The City has not satisfied me that he erred in this finding. Its arguments reflect an incorrect analysis of the judicial precedents on the common venture concept and a misunderstanding of the concept of joint participation in a wrongful act to which art. 1480 C.C.Q. now applies.

Furthermore, if a party wants to establish solidarity as a result of a “common venture” which causes an injury, it is 1526 CCQ that must be satisfied:

The second article, art. 1526 C.C.Q., concerns a common fault or contributory faults that, here again, caused a single injury. It should be mentioned in this regard that art. 1526 C.C.Q. imposes solidarity on persons who have committed a common fault or contributory faults even where the evidence shows which person committed the fault that actually caused the injury. Thus, it is under art. 1526 C.C.Q., not under art. 1480 C.C.Q., that solidary liability can now be imposed on those who commit common or contributory faults, for which the courts formerly sometimes used the expression “common venture”. Of the various cases discussed in the preceding section, Massignani is therefore the only one that would likely be covered by art. 1480 C.C.Q. The others (D’Allaire, Gagné, Laxton, Légaré and Dumont) would now most likely fall within the scope of art. 1526 C.C.Q. (Emphasis added, citations removed)

Article 1526 CCQ provides:

1526. The obligation to make reparation for injury caused to another through the fault of two or more persons is solidary where the obligation is extra‑contractual.

As the Court noted:

For this article to apply, the fault of two or more persons must have caused a single injury. This fault may be a common fault or may consist of contributory faults. On this point, the City argues that the mutual encouragement on the rioters’ part contributed to the aggregate injury it suffered, that is, the total destruction of the patrol cars. In the City’s opinion, the courts below erred in law in characterizing the injury, which must be assessed as a whole rather than being split into separate portions.

In my view, the City is mistaken. Although its argument is purportedly one of an alleged error of law in characterizing the injury, what it is really seeking is, here again, to have this Court revisit the trial judge’s findings of fact on the injury actually caused by each of the respondents’ faults. In so doing, the City is also disregarding the trial judge’s findings of fact to the effect that the respondents’ faults were separate. Given that the trial judge made no palpable and overriding error that would taint his finding that a single injury did not result from the respondents’ separate faults, there is no reason to intervene.

For her part, Justice Côté took the following position :

My colleague Gascon J. frames the central issue in this appeal as follows: “To what extent can a rioter who has caused property damage be held solidarily liable to the victim for damage done to the same property by other rioters?” (para. 3). In my view, rioters who act together to do damage to property must be held solidarily liable for the whole of the injury suffered by the victim in respect of that property.