Chapter 5 - Defences Against Extra Contractual Liability In Quebec

Question 1

In which circumstance is the defence of a person prohibited?

Answer 1

Under gross fault

Question 2

Which CCQ article excludes gross fault?

Answer 2

CCQ Article 1474

Question 3

Define onus of proof

Answer 3

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

Question 4

Define presumption of fault

Answer 4

Defendants must exonerate themselves by denying that they committed a fault or by showing that the victim was at fault

Question 5

What does CCQ Article 1459 outline in regards to tutors?

Answer 5

The tutor must prove they did not commit any fault in the custody, supervision or education of a minor

Question 6

What does CCQ Article 1463 state in regards to employees and agents?

Answer 6

Principals may retain right to pursue the agent or employee for any wrongdoing

Question 7

Which two articles outline the act of a thing?

Answer 7

1466 (animal) and 1467 (lack of repair or defect from construction)

Question 8

Outline the seven (7) eligible defences

Answer 8

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

Question 9

For the denial defence to be utilized, any of the following three must be proven:

Answer 9

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

Question 10

Explain the Not Endowed with Reason defence

Answer 10

A person must be endowed with reason (ie. not mentally challenged) to be find liable for an act.

Question 11

What is force majeure?

Answer 11

Superior force

Question 12

Explain the Superior Force defence

Answer 12

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.

Question 13

Explain Voluntary Assumption of Risk

Answer 13

Not a complete defence, however this could apply if the victim imprudently accepts the risk of an activity

Question 14

What would be the use of a disclaimer?

Answer 14

It works to display that the victim was aware of any sort of limitation that may have been in place for the contract.

Question 15

What does CCQ Article 1476 indicate about a notice?

Answer 15

You may not exclude or limit obligation to make reparation, however you may utilize it to warn of a danger.

Question 16

Explain Contributory Negligence of the Victim

Answer 16

This could apply if several persons are involved with the injury of the victim. Liability is shared proportionate to their responsibility.

Question 17

Explain the Defences for a Good Samaritan

Answer 17

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.

Question 18

Explain the Defences for Manufacturers and Distributors of Products

Answer 18

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.

Question 19

What is an apparent defect?

Answer 19

It can be perceived by a prudent or diligent buyer without the help of an expert.

Question 20

What three defences may a manufacturer use in regards to an safety defect?

Answer 20

• 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

Question 21

Which four parties can extra-contractual liability be assessed against in Quebec?

Answer 21

Manufacturer, distributor, wholesaler or retailer

Question 22

Is ignorance a defence for manufacturers?

Answer 22

No

Question 23

What does the Consumer Protection Act set out?

Answer 23

How action can be taken by injured parties when no contract existed between them and the manufacturer if a product is defective.

Question 24

How long of a time period does one have to apply for additional damages?

Answer 24

Three years, typically

Question 25

When does prescription begin for minors and what does it mean?

Answer 25

Once they come of legal age, they could then be entitled to sue a person entrusted with their custody if needed.

Question 26

What is extinctive prescription?

Answer 26

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

Question 27

How long is the extinctive prescription period?

Answer 27

Ten years, unless otherwise stated by law

Question 28

When does the right to pursue action begin?

Answer 28

From the day the action appears for the first time.

Question 29

When must libel claims be brought?

Answer 29

Within the year of the day which one learns about the defamation.

Question 30

What is gross fault?

Answer 30

A fault which shows gross recklessness, gross carelessness or gross negligence

Question 31

Is there a defence to gross fault?

Answer 31

No

Question 32

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

Answer 32

They are not liable except for conduct which would otherwise be considered wrongful.

Question 33

What must the defendant prove for the disclaimer defence?

Answer 33

That the accusing party was aware of the notice at the time of the damage.

Question 34

What do articles 1468 and 1469 indicate about liability?

Answer 34

The manufacturer is responsible for movable property if damage occurs due to a safety defect.

The labeling must be adequate and appropriate.

Question 35

Under CCQ Article 1476, what does a notice serve as?

Answer 35

A warning

Question 36

What does CCQ Article 1471 outline?

Answer 36

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.