4.1 - Extra-Contractual Liability in Quebec Flashcards
The principle of Extra-Contractual Liability
-in Quebec, most legal obligations and rights are codified in the ‘Civil Code of Quebec’
-one of the major differences between the civil law system of Quebec and the common law system of the other prov. and terr. > in Quebec, most law is established in jurisprudence (decisions made by judges in legal cases)
-whereas the common law system has the liability of tort, the ‘Civil Code of Quebec’ includes something called extra-contractual liability - which is a civil wrong other than a breach of contract
-the term “delict” is an older word sometimes used in Quebec to refer to a civil wrong
-Book Five of the Civil Code of Quebec (CCQ), titled “Obligations”, is divided into extra-contractual and contractual obligations
-within the extra-contractual obligations, a general duty of care for members of society is set out in Articles 1457-1481
-CCQ Articles 1457 - 1469 can be roughly divided into five categories:
> Liability for one’s own act or fault
> Liability for others’ acts
> Liability for damages caused by one’s things and buildings
> Liability for damages cause by one’s animals
> Liability of the manufacturer
-if they fail to meet the standard duty of care, persons may be found liable for their deeds, the deeds of others, the defects of things, or the actions of animals
-similarly, manufacturers have obligations to the public
Elements Required to Establish Civil liability
-a plaintiff instituting a lawsuit for extra-contractual liability in QC must establish 3 elements to the satisfaction of the court:
- Fault on the part of the defendant
- Injury or damage suffered by the plaintiff
- Causal link between the fault and the injury or damage
Liability for One’s own act or fault
-CCQ Article 1457 applies to everyone, and it outlines a duty of care: people are expected to abide by appropriate rules of conduct so as not to injure another
-in determining the standard of care expected in a particular case, courts will consider the circumstances, usage, and law
-A person who does not conduct themselves carefully may incur liability for harm suffered by a TP
> > Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.
-the Civil Code requires a person to be endowed with reason in order to be held liable for their wrongful conduct. Courts consider whether the person is able to distinguish right from wrong. A person who is mentally incapacitated may not meet this test. Certain minors have also been categorized as not endowed with reason - for example, courts generally do not consider children under the age of 7 to be endowed with reason
Liability for Others’ Acts
-the 3rd paragraph of Article 1457 states that a person may be held liable not only for the consequences of their own acts but for those of other people:
> > ## He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody
Liability of Parents for Minor Children
-persons having parental authority are liable for a minor’s acts causing damage UNLESS the parents can prove the minor has been well supervised, well raised, and adequately educated
-parents will have to prove, for example, that they had warned their child against using dangerous objects (knives, slingshots, lighters), that they did not show the child any bad habits, that the child was successful at school and so on
-proof must be both general (a generally good education) and specific (strict supervision at the time of the incident)
> > a person having parental authority is bound to make reparation for injury caused to another by the act, omission or fault of a minor under his authority, unless he proves that he himself did not commit any fault with regard to the custody, supervision or education of the minor
Liability of Custodians or Teachers for Minors
-the same principle applies to any other person who, though not the child’s parent, is entrusted with the custody, supervision, or education of the child. In other words, a teacher or a babysitter can be liable under CCQ Article 1460
-however, where this person is acting gratuitously (without pay) or for reward, the burden of proof reverts back to the plaintiff
> > A person who, without having parental authority, is entrusted, be delegation or otherwise, with the custody, supervision or education of a minor is bound, in the same manner as the person having parental authority, to make reparation for injury caused by the act, omission or fault of the minor
Liability of Tutors and Curators for Adults not Endowed with Reason
-persons acting as tutors or curators for adults who are not endowed with reason can be held liable for the latter’s acts if the tutors or curators have been guilty of a deliberate or gross fault.
-gross fault has been described in jurisprudence as a fault of such recklessness that the most uncaring person would not have committed it. This is essentially similar to the common law doctrine of gross negligence
> > ## Any person who, as tutor, curator, or otherwise, assumes custody of a person of full age who is not endowed with reason, is not bound to make reparation for injury caused by an act or omission of the person of full age, except where he has himself committed an intentional or gross fault in exercising custody
Liability of Employers for Employees
-CCQ Article 1463 provides that principals (for example, employers) are liable for the faults of their agents (employees) committed in the course of their duties.
-this does not apply to an employee’s fault causing damage to another employee, since the Act respecting industrial accidents and occupational diseases (no fault) would apply
-the common law doctrine of ‘vicarious liability’ is similar
> > ## The principal is bound to make reparation for injury caused by the fault of his subordinates in the performance of their duties; nevertheless, he retains his remedies against them
Liability for One’s Things and Buildings
-the principle set out in Article 1465 applies to almost any object, be it a helicopter, a pipeline, an electric cable, a volatile substance, electricity or water
-for example, when a sewer pipe broke in Montreal and water excaped from it into the cellars of some residences, the city was held liable under an earlier version of what is now CCQ Article 1465, because the pipe and the water it contained were things under the city’s custody (‘Watt and Scott v. City of Montreal’)
> > ## the custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault
-the reference to an autonomous act means that the thing at the time was not subject to human intervention and the thing itself had a dynamic role in inflicting the damage
-the owner of a building is liable for damage caused by poor construction or maintenance
-this article establishes a reverse onus. The defendant rather than the plaintiff, has the onus to prove their case, which in this situation means proving they are NOT negligent
> > ## the owner of an immovable without prejudice to his liability as custodian, is bound to make reparation for injury caused by it ruin, even partial , whether the ruin has resulted from lack of repair or from a defect in construction
Liability for One’s Animals
-under CCQ Article 1466, the owner of an animal and the person making use of the animal are jointly liable for any damage it causes
-for example, if a person takes his friend’s dog for a walk and the dog bites a neighbour, both the dog owner and the friend are liable
-this is a type of strict liability in that the plaintiff does not need to prove the owner was at fault; the plaintiff merely has to prove their injury
-by contrast, common law liability can be based on a theory of negligence of the owner where recovery is based on the action or lack of action by an animal owner/keeper
> > the owner of an animal is bound to make reparation for injury it has caused, whether the animal was under his custody or that of a third person, or had strayed or escaped.
Liability of the Manufacturer
-CCQ Articles 1468, 1469 & 1473 cover liability for safety defects in products
-the principle is roughly in line with the decision of the Supreme Court of Canada in ‘General Motors Products of Canada v. Kravitz’. In this case, the court held that the dealer and the manufacturer of a new car were jointly and severally liable for damages and for the price of the car
-the manufacturer was liable under a warranty against latent defects not only to the immediate purchaser (the dealer) but also to any subsequent purchaser of the car
> > The manufacturer of a movable thing is bound to make reparation for injury caused to a third person by reason of a safety defect in the thing, even if it is incorporated with or placed in an immovable for the service or operation of the immovable
> > ## The thing has a safety defect where, having regard to all the circumstances, it does not afford the safety which a person is normally entitled to expect, particularly by reason of a defect in design or manufacture, poor preservation or presentation, or the lack of sufficient indications as to the risks and dangers it involves or as to the mean to avoid them.
-these articles, combined with the ‘Consumer Protection Act’, extend liability to retailers who sell goods received from the manufacturer, often without any opportunity to test them or without opening the package
-Legislators intend to protect ordinary customers who do not have the power or the will to confront a manufacturer (whose products are often made in foreign countries).
-Customers would rather litigate with retailers because the retailers are closer to them
Other Concepts of Liability
-other general concepts of liability that are related to common law principles include:
>abuse of right
>obligations of neighbours
>duty of the Good Samaritan
Other Concepts of Liability:
-Abuse of Right
-Legislators have incorporated into Quebec’s Civil Code the notion of abuse of right that applies generally to extra-contractual and contractual matters
-it might be considered as establishing a general standard of care limiting how one can treat people
> > ## No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner, and therefore contrary to the requirements of good faith
-the notion was discussed in the Supreme Court of Canada’s decision in ‘Houle v. Canadian National Bank’
-in this case, the bank was a secured creditor of a company whose shareholders were, to the knowledge of the bank, negotiating the sale of their shares to a third party. The bank called back the loans, took possession of the company’s assets, and sold the assets within 3 hours of taking possession. Consequently, instead of paying $1 million for the shares, the third party only paid $300,000. The Supreme Court held that although the bank was allowed contractually to act as it did, its actions were unreasonable under the circumstances, and the actions were judged to be an extra-contractual fault. Consequently, the bank was held liable for the drop in value of the shares
Other Concepts of Liability:
-Obligations of Neighbours
-CCQ Article 976 provides that neighbours do not have to endure annoyances that are beyond the limit of tolerance according to the nature or location of the land or to local custom
-thus, if one neighbour is conducting some sort of business that emits a powerful and obnoxious smell, preventing others from enjoying their property, a cause of action against that neighbour is a possibility
-the general rules of civil liability do not apply in that it is not necessary to establish fault
-this provision known as ‘trouble de voisinage’ is the equivalent of the tort of nuisance under the common law
-the obligations of neighbours were reviewed by the Supreme Court of Canada in ‘St. Lawrence Cement Inc. v. Barrette’, a case in which damages were claimed because of the unreasonable dust, noise and smells of the cement company
-the concept of liability without fault was affirmed to align with the common law tort of nuisance
Other Concepts of Liability:
-Duty of the Good Samaritan
-Quebec’s Charter of Human Rights and Freedoms imposes a duty on everyone to help a person in peril
-the law encourages its citizens to come to the aid of others in need by limiting the scope of liability for such individuals
> > Every human being whose life is in peril has a right to assistance.
Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or to a third person or he has another valid reason
