31 Déc 2014

Think Twice about Who You Kiss at Midnight this New Year’s Eve

By Sarah D. Pinsonnault

It is New Year’s Eve! A time of merriment and celebration. A time when people gather to reflect on the past
year and ponder on resolutions for the upcoming year.  In certain cultures, it
is customary to ring in the New Year by kissing the first person you meet at the
stroke of midnight, as this is believed to set the tone for the year to come. 
In Toulch c. Litvack, 2014 QCCS 1143, during New Year’s
celebrations taking place in Miami Beach, the Defendant had the misfortune of
choosing the wrong person with whom to partake in this holiday

As it turns out, the girl the Defendant chose to give a kiss to on
the cheek (incidentally the “Plaintiff” in the case at bar) ended up having a
boyfriend. It goes without saying that her boyfriend was not pleased with what
had just transpired. A heated exchange between the two men thus ensued,
resulting with the Plaintiff getting punched in the nose and knocked

The Plaintiff had to consult several medical specialists and even
undergo cosmetic surgery to correct her nose following this blow. That, along
with other damages she suffered as a result of this ill-fated New Year’s Eve
incident, led her to institute the present legal proceedings against the
Defendant for compensation.

Given the Plaintiff’s state of unconsciousness during this
altercation, she could not recall who hit her. Her boyfriend alleges that when
the Defendant tried to take a swing at him, he ducked out of the way and the
Defendant ended up punching the Plaintiff, who was standing behind him, in the
face. Conversely, the Defendant denies striking the Plaintiff and contends that
she was possibly struck by her boyfriend as an accident. The Court had to
therefore determine which version of the facts to believe.

Enter the Latin maxim: magis creditur duobus testibus
affirmantibus quam mille negantibus
(translation: more credibility is
granted to two positive testimonies rather to a thousand negative ones).
As applied by the Supreme Court of Canada in Lefeunteum v.
Beaudoin, [1897] 28 S.C.R. 89, this long-established principle dictates
that when a witness testifies that a certain incident occurred or statement was
made (i.e. swears positively to a fact) and another witness denies it, it is the
former’s testimony that is to be preferred over the latter’s.

The Court accordingly applied this principle in its analysis:
“[10] Even if the Court were to assess equally the contradicting
evidence from both sides, it would have to favour Alexandra. The Supreme Court
has said a long time ago that when a court is faced with contradictory testimony
that it considers equally credible, it is preferable to retain the version of
witnesses who affirm the existence of a fact than the version of those who deny
it.” (reference omitted)

And it then went on to conclude as follows:
“[12] Thus, the Court is of the view that on the balance of
probabilities, James hit Alexandra in the face and broke her nose and this
constitutes a fault on his part.”

With respect to the damages, the Defendant was ordered to pay $8,148
for compensatory damages and $20,000 for moral damages with interest. And
although punitive damages, in the ballpark of $10,000, were claimed by the
Plaintiff, the Court denied her this because it found that the Defendant’s
violation of her Charter rights was not intentional:
“[31] By kissing Alexandra on the cheek, James unwittingly set off a
sequence of events that led to her being injured. There is no evidence however
that James intended to hurt Alexandra on New Year’s Eve. Therefore, this is not
a case where punitive damages should be imposed.”

To read this decision in its entirety, click here.


Putting tradition and superstition aside, when the ball drops at the end of 2014 tonight, whether you
end up giving a meaningful kiss to your partner, a random kiss to the first
person you meet, or choose to not kiss anyone
at all, chances are that the upcoming year will nevertheless be whatever you make of it. So instead of focusing on what may have been
shortcomings in the past year, cherish your accomplishments and prepare to
celebrate all of the amazing moments that await you in the year to come.
Remembering this will contribute immeasurably to
your success in 2015.

Happy New Year!

Bonne année!

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