Chapter 5

Question 1

Abuse of Right

Answer 1

Establishes a general standard of care limiting how you can treat people.

“No right can be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.”

Question 2

Gross Fault

Answer 2

A fault which shows:

i. gross recklessness,
ii. gross carelessness, or
iii. gross negligence.

Question 3

Is there a defence for someone who has committed a gross fault?

Answer 3

No

Question 4

Describe five exceptions to CCQ Article 2803 (that the plaintiff bringing a lawsuit must prove the facts upon which the lawsuit is based)

Answer 4

1- A tutor must prove that he did not commit any fault in the custody, supervision, or education of the minor

2- 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

3- Liability of employers for employees

4- The owner of an animal must show the victim’s fault

5- The owner of an immovable must prove that the ruin does not result from lack of repair or from defect of construction

Question 5

Onus of Proof

Answer 5

The duty of a person to provide proof to the court on a case in question.

Question 6

Presumption of Fault

Answer 6

Requires that the defendant show that he or she was not at fault.

Question 7

What are the three denial defences?

Answer 7

1- Denial of fault: there is no fault on the part of the defendant

2- Denial of injury: There is no injury suffered by the plaintiff

3- Denial of causal link: There is no causal link between the fault and the injury

Question 8

How does CCQ Article 1462 provide an additional defence for a person not endowed with reason?

Answer 8

It asserts that a person must be endowed with reason in order for a court to find liability against him or her, unless the conduct of the person would otherwise be considered wrongful.

Question 9

Describe the defence available in Quebec based on superior force.

Answer 9

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.

Question 10

Superior Force

Answer 10

An unforeseeable and irresistible event, including external causes with the same characteristics.

Question 11

How does the Civil Code of Quebec treat the voluntary assumption of risk?

Answer 11

When a victim imprudently accepts the risk of an activity, the Civil Code nonetheless permits the victim to maintain his or her rights to sue the defendant.

Question 12

To use disclaimers as a defence in Quebec, what must a defendant prove?

Answer 12

Contractual Obligations: The defendant must show that the injured party was aware of the limitation when the contract was formed.

Extra-Contractual Obligations: The disclaimer will not succeed, but will serve as a warning of danger to the plaintiff.

Question 13

For what type of damages can a person limit his or her liability?

Answer 13

Where an injury has been caused by several persons, or when the victim is included in the apportionment when the injury is partly the effect of his own fault.

Question 14

What rights are available to a Good Samaritan in Quebec?

Answer 14

They 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 intentional or gross fault.

Question 15

Describe how a manufacturer can escape liability as outlined in CCQ Article 1473?

Answer 15

If it was impossible for the manufacturer to have known of the safety defect in the product because the state of the knowledge at the time of manufacture, distribution, or supply did not support it.

Question 16

What three defences can a manufacturer use if a claimant succeeds in proving a safety defect exists in a product?

Answer 16

1- The manufacturer could only have known the state of knowledge regarding the product in existence at the time.

2- The claimant could have known about the defect and should have known its risks.

3- The manufacturer made available all the proper information about the shortcomings of the product.

Question 17

Describe how liability is enforced against manufacturers liability according to CCQ Articles 1468 and 1469.

Answer 17

The defendant will not be able to escape liability if he or she did not provide adequate labelling or warn of a known danger as stated in CCQ Article 1469.

CCQ Article 1468 provides that the manufacturer of a movable property is liable to reparation for injury caused to a third person by reason of a safety defect in the thing. The same is true for the retailer.

Question 18

What rights does the Consumer Protection Act of Quebec grant to the consumer?

Answer 18

Manufacturers or sellers cannot defend against a suit filed by a consumer by alleging they were unaware of a defect or a lack of instructions.

Therefore, CCQ Article 1473 seems to apply only in commercial transactions.

Question 19

Extinctive Prescription

Answer 19

A means of extinguishing a right which has not been used or of pleading the non-admissability of an action.

The period for extinctive prescription is ten years, except as otherwise fixed by law.

Question 20

How much time does a plaintiff generally have to file a suit?

Answer 20

Three years from the accident.

If damages appear gradually, the limitation period starts from the day the damage first appeared.

Question 21

What is the time limitation for a claim of defamation?

Answer 21

One year from the day on which the defamed person learned of the defamation.