Chapter 5 - Defences Against Extra Contractual Liability In Quebec Flashcards
In which circumstance is the defence of a person prohibited?
Under gross fault
Which CCQ article excludes gross fault?
CCQ Article 1474
Define onus of proof
The duty of a person to provide proof to the court on a case in question
Define presumption of fault
Defendants must exonerate themselves by denying that they committed a fault or by showing that the victim was at fault
What does CCQ Article 1459 outline in regards to tutors?
The tutor must prove they did not commit any fault in the custody, supervision or education of a minor
What does CCQ Article 1463 state in regards to employees and agents?
Principals may retain right to pursue the agent or employee for any wrongdoing
Which two articles outline the act of a thing?
1466 (animal) and 1467 (lack of repair or defect from construction)
Outline the seven (7) eligible defences
Denial Not Endowed with Reason Superior Force Voluntary Assumption of Risk Contributory Negligence of the Victim Defences for a Good Samaritan Defences for Manufacturers and Distributors of Products
For the denial defence to be utilized, any of the following three must be proven:
Denial of fault: no fault on part of defendant
Denial of injury: no injury suffered by the plaintiff
Denial of causal link: no causal link between fault and injury
Explain the Not Endowed with Reason defence
A person must be endowed with reason (ie. not mentally challenged) to be find liable for an act.
What is force majeure?
Superior force
Explain the Superior Force defence
If an event is an irresistible force, unforeseen event, an overpowering force or an accident which human prudence can neither foresee nor prevent.
This is often due to fires or other acts of god.
Explain Voluntary Assumption of Risk
Not a complete defence, however this could apply if the victim imprudently accepts the risk of an activity
What would be the use of a disclaimer?
It works to display that the victim was aware of any sort of limitation that may have been in place for the contract.
What does CCQ Article 1476 indicate about a notice?
You may not exclude or limit obligation to make reparation, however you may utilize it to warn of a danger.
Explain Contributory Negligence of the Victim
This could apply if several persons are involved with the injury of the victim. Liability is shared proportionate to their responsibility.
Explain the Defences for a Good Samaritan
The standard of care is softened due to the positive duty created by the Charter of Human Rights and Freedoms. As long as one can show their act was not intentionally harmful or grossly at fault, this could be a successful defence.
Explain the Defences for Manufacturers and Distributors of Products
The law ensures that manufacturers must value the safety of their consumer.
Both the seller and manufacturer are liable to their consumers.
Three major subcategories include apparent defects, labelling must be adequate and safety defects.
What is an apparent defect?
It can be perceived by a prudent or diligent buyer without the help of an expert.
What three defences may a manufacturer use in regards to an safety defect?
- The manufacturer could only have known the state of knowledge regarding the product in existence at that time
- The claimant could have known about the defect and should have known its risks
- The manufacturer made available all the proper information about the shortcomings of the product
Which four parties can extra-contractual liability be assessed against in Quebec?
Manufacturer, distributor, wholesaler or retailer
Is ignorance a defence for manufacturers?
No
What does the Consumer Protection Act set out?
How action can be taken by injured parties when no contract existed between them and the manufacturer if a product is defective.
How long of a time period does one have to apply for additional damages?
Three years, typically
When does prescription begin for minors and what does it mean?
Once they come of legal age, they could then be entitled to sue a person entrusted with their custody if needed.
What is extinctive prescription?
A means of extinguishing a right which has not been used or of pleading the non-admissibility of an action.
How long is the extinctive prescription period?
Ten years, unless otherwise stated by law
When does the right to pursue action begin?
From the day the action appears for the first time.
When must libel claims be brought?
Within the year of the day which one learns about the defamation.
What is gross fault?
A fault which shows gross recklessness, gross carelessness or gross negligence
Is there a defence to gross fault?
No
How does CCQ Article 1462 provide additional defence for a person not endowed with reason?
They are not liable except for conduct which would otherwise be considered wrongful.
What must the defendant prove for the disclaimer defence?
That the accusing party was aware of the notice at the time of the damage.
What do articles 1468 and 1469 indicate about liability?
The manufacturer is responsible for movable property if damage occurs due to a safety defect.
The labeling must be adequate and appropriate.
Under CCQ Article 1476, what does a notice serve as?
A warning
What does CCQ Article 1471 outline?
The Good Samaritan Act.
When a person comes to the assistance of another for an unselfish motive disposes free of charge of property for the benefit of another person he is exempt from all liability for injury that may result from it unless the injury is due to his intentional or gross fault.
