5.1 - Defences Against Extra-Contractual Liability in Quebec Flashcards
Discuss the defences available to a defendant sued for negligence in Quebec
Defences available in Quebec
-notwithstanding the available defences, the ‘Civil Code’ prohibits the success of a defence for a person who has committed a gross fault, as defined:
CCQ Article 1474:
»A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence.
He may not in any way exclude or limit his liability for bodily or moral injury caused to another.»
-where the ‘Civil Code’ created liability, it also provides for ways in which the defendant can exonerate themselves from liability.
-CCQ Article 1457 provides the basis of a model article to continue this introduction to defences.
CCQ Article 1457:
»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.
Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral, or material in nature.
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»
-The assertion that there was no fault on the part of the defendant is a defence that arises in many of the articles of the ‘Civil Code’ as a positive statement: if the defendant did “abide by the rules of conduct,” this defence is available to the defendant to avert a finding of being liable for damages
Onus of Proof
-the onus of proof refers to the duty of a person to provide proof to the court on a case in question
-the rules of evidence are codified in CCQ Articles 2803-2874
-similar to the common law, the ‘CCQ’ under Article 2803 provides that the plaintiff brining a lawsuit must prove the facts upon which the lawsuit is based
CCQ Article 2803:
»A person seeking to assert a right shall prove the facts on which his claim is based.
A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim.»
-however, there are exceptions to this general rule.
-various ‘Civil Code’ articles provide for ‘presumption of fault’ against the alleged wrongdoer - the defendant
-therefore the defendants must exonerate themselves by denying that they committed a fault or by showing that the victim was at fault
-the presumption of fault requires that the defendant show that they were not at fault. In effect, this reverses the onus of proof
-Act or fault of another:
»under the CCQ Article 1459, a tutor must prove that he did not commit any fault in the custody, supervision, or education of the minor
»under the CCQ Article 1465, a person entrusted with the custody of a thing must prove that the thing did not act autonomously or that he is not at fault
-CCQ Article 1463 provides that when the principal is liable for the fault of his agents or employees, the principal still retains the right to pursue the agent or employee for any wrongdoing
-this is similar to the doctrine of vicarious liability at common law
-Act of a Thing:
»under CCQ Article 1466, the owner of an animal must show the victim’s fault
»under CCQ Article 1467, the owned of an immovable must prove that the ruin did not result from lack of repair or from defect of construction
Denial
-generally, when the requirements to establish a lawsuit are not met, they serve as the ‘denial defence’ against the lawsuit and include the following:
> Denial of fault: There is no fault on the part of the defendant
> Denial of injury: There is no injury suffered by the plaintiff
> Denial of causal link: There is no causal link between the fault and the injury
-when the plaintiff is not able to establish the defendant’s fault, the plaintiff’s own injury, or the causal link between the fault and the injury, the lawsuit will not succeed
Not Endowed with Reason
-The ‘Civil Code’ provides another defence for those “not endowed with reason”.
-the law acknowledges that a person with an intellectual disability can avoid liability
-a person who is unable to understand the rules of conduct cannot be made liable if they break the rules
-CCQ Article 1462 asserts that a person must be endowed with reason in order for ta court to find liability against them, unless the conduct of the person would otherwise be considered wrongful
CCQ Article 1462:
»A person is liable for injury caused to another by an act or omission of a person not endowed with reason only in cases where the conduct of the person not endowed with reason would otherwise have been considered wrongful»
Superior Force
-superior force, also know as ‘force majeure’ under the law in Quebec, refers to forces beyond the control and without the fault or negligence of any party
-it applies to both contractual and extra-contractual situations and has been described by the courts as an irresistible force, and unforeseen event, an overpowering force, or an accident that human prudence can neither foresee nor prevent
-examples include things such as acts of God, wars, fires, and other disasters, but they also include more conventional commercial events such as the failure of equipment or certain labour unrest
-the defence of Superior force arises from:
CCQ Article 1470:
»A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it.
Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics»
-in the common law prov. and terr., ‘force majuere’ is a clause used in contracts allowing a party the right to escape their contractual obligation upon the happening of certain events defined as ‘force majuere’
Voluntary Assumption of Risk
-when a victim imprudently accepts the risk of an activity, the ‘Civil Code’ nonetheless permits the victim to maintain their rights to sue the defendant
-compared to common law jurisdictions, this is quite favourable to the plaintiff
CCQ Article 1477:
»The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the author of the injury»
-the plaintiff’s assumption of risk is not a complete defence
-liability must be assessed according to the circumstances of the incident
-the defendant must rely on other defences to avoid a finding of fault
-if responsibility for the wrongful act is shared, liability will be apportioned accordingly
Disclaimers
-a disclaimer posted in a notice to absolve a party’s contractual obligation can be invoked if the defendant can show that the injured party was aware of the limitation when the contract was formed
-it operates like a hold-harmless clause
CCQ Article 1475:
»A notice, whether posted or not, stipulating the exclusion or limitation of the obligation to make reparation for injury resulting from the nonperformance of a contractual obligation has effect, with respect to the creditor, only if the party who invokes the notice proves that the other party was aware of its existence at the time the contract was formed»
-a disclaimer posted in a notice to absolve a party of their obligations will not succeed; however, it will serve as a warning of danger to the plaintiff
-a signed document such as a waiver, should meet this test
CCQ Article 1476:
»A person may not by way of a notice exclude or limit his obligation to make reparation with respect to third persons; such a notice may, however, constitute disclosure of a danger»
Defences for a Good Samaritan
-the standard of care is softened for the positive duty created by Quebec’s CHRF to respond to another person in peril by:
CCQ Article 1471:
»Where a person comes to the assistance of another or, for an unselfish motive, gratuitously disposes of property for the benefit of another, he is exempt from all liability for injury that may result, unless the injury is due to his intentional or gross fault»
-Good Samaritans can limit their liability for an additional injury caused to a victim as long as they can show that it was not caused by their international or gross fault
Contributory Negligence of the Victim
-CCQ Article 1478 provides for the right of apportioning damages
-this includes allocating a share of responsibility to the injured party as well, which is similar to the concept of contributory negligence under the common law
CCQ Article 1478:
»Where an injury has been caused by several persons, liability is shared between them in proportion to the seriousness of the fault of each.
The victim is included in the apportionment when the injury is partly the effect of his own fault»
-when several persons have caused the damage, and it is impossible to determine each person’s involvement, they are solidarily (jointly and severally) liable for reparation according to CCQ Article 1480
-this means the plaintiff may sue one of the persons at fault and be fully compensated
-the other persons at fault are still liable for the assessment of liability against them
-thus Quebec, like common law jurisdictions in Canada, embraces the concept of joint and several liability
