Chapter 6

Question 1

Give an example of an intervening cause that would provide a defendant with a defence of remoteness of cause.

Answer 1

A cyclist collides with a pedestrian walking on a sidewalk. The pedestrian sustains an arm injury as a result of the cyclist’s negligence. On the way to the doctor, the pedestrian sustains a leg fracture when he is hit by a car as he crosses the highway. The leg fracture resulted from an intervening cause.

Question 2

Describe the case of Scott v. Shepherd (1773) to illustrate a chain of events and the effect it has on proximate cause.

Answer 2

The defendant threw a lighted firecracker (squib) into a crowded market where it fell on a stall. The occupier of the stall threw it away to avoid danger and it fell on another stall where it was similarly thrown away. This happened several times until the firecracker eventually exploded causing injury to the plaintiff. The defendant who lit and then threw the firecracker in the first place was held liable.

Question 3

Chains of events and intervening causes were subsequently dealt with in two Quebec cases. Describe the outcome of these two cases.

Answer 3

Laperriere v. The King - the issue of proximate cause was upheld.

Beaudoin v. TW Hand Fireworks - the issue of intervening cause because of a break in the chain of events was upheld.

Question 4

Joint Tortfeasors

Answer 4

Two or more persons acting in concert for a common purpose and causing injury or damage to another.

Question 5

What right does a joint tortfeasor have when a plaintiff chooses to proceed against only them in an action where joint and several liability applies?

Answer 5

They can seek contribution from the other tortfeasors sharing fault. In practice, the tortfeasor named in the suit will bring third party proceedings against the other tortfeasors.

Question 6

How is apportionment of liability among joint tortfeasors handled in Quebec?

Answer 6

The victim can claim the whole indemnity from one particular defendant. The defendants can resolve the distribution of damages amongst themselves, however, the law provides that the courts may determine the contribution owed by each of the parties at fault.

Question 7

Solidary Obligation

Answer 7

Corresponds to the common law principle of joint and several liability. Any one defendant may be liable for the entire share of a judgment.

Question 8

Vicarious Liability

Answer 8

Responsibility for the acts of others.

Question 9

What is the general rule outlining the responsibility of principals for the acts of their agents?

Answer 9

The principal is responsible for the acts of their agents acting on their behalf.

Question 10

How is the concept of principal and agent referred to in Quebec?

Answer 10

Mandator and Mandatary

Question 11

Explain four ways in which agency can be created.

Answer 11

By contract
By ratification
By estoppel
By necessity

Question 12

Agency by contract (express)

Answer 12

The legal liability of the principal for the activities of an agent depends upon the agency contract. However, the principal is not only bound by the express authority stated in the contract, but also by the apparent or ostensible authority which arises from the operation of the contract.

Question 13

Agency by ratification

Answer 13

a. Authority to “act on behalf of” conceded later.
b. An agent may knowingly act for a principal without express authority to do so. If the principal later acquiesces, or, by some positive act demonstrates acceptance and approval of the agent’s actions, then ratification is said to have occurred and agency created between the two.

Question 14

Agency by estoppel

Answer 14

a. The restraint which the law places on a person to prevent allegations that previous representations, either by word or action, were not truthful, when another person has relied on those representations assuming them to be true.
b. When a principal tacitly agrees to allow someone to act as an agent on a matter where, in fact, no authority has been given.

Question 15

Agency by necessity

Answer 15

There are cases where no actual authority has been conferred by a principal to an agent, but because of the urgency of the situation, the law allows the person to act as an agent.

Question 16

Under what circumstances in a principal-agent relationship can an agent be held liable to a third party?

Answer 16

a. On contracts in which the agent is improperly identified.
b. When the principal does not exist.
c. When the agent exceeds the conferred and apparent authority of the agency contract.

Question 17

How does the Civil Code of Quebec define mandate?

Answer 17

A contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power.

Question 18

What legal liabilities arise out of the relationship between the mandator and mandatary?

Answer 18

• The mandator is liable to third parties for all obligations contracted by the mandatary within the limits of the authority or mandate and for acts exceeding such authority when they have been ratified.
• The mandator is also responsible to third parties who, in good faith, contract with a person whom they believe to be a mandatary but who is not, when the mandator has given reasonable cause for such belief.
• The mandator is liable for any injury caused by the fault of the mandatary in performing the mandate (unless proven unpreventable).
• The mandatary cannot act beyond the authority expressed or implied in the mandate except for those acts which are incidental and necessary for execution of the mandate.
• The mandator is obliged to execute the mandate and is responsible for damages arising from the failure to do so.

Question 19

What principle is demonstrated in Lockhart v. CPR (1941)?

Answer 19

Employer responsible for negligent employee.

Question 20

How can responsibility remain with the employer when the employee’s actions are expressly forbidden?

Answer 20

When the action represents a way of doing what the employee was hired to do. If the employee was carrying out assigned duties, the employer will be held responsible.

Question 21

What is “a frolic of his own” and how would it affect an employer’s responsibility for damage arising from it?

Answer 21

If an employee, during business hours, abandons work and does something unrelated to it and in the process, negligently causes damage. The employer is not liable for an employee’s personal negligence.

Question 22

How would liability be assigned if an employee was using the employer’s property without authority to do so?

Answer 22

The employer is not responsible for the negligence of the employee if the property was for their own use.

Question 23

When are independent contractors not solely liable for damage they negligently cause others?

Answer 23

When:

a. Dangerous work is undertaken
b. Unlawful work is done
c. The principal interferes with the contractor

Question 24

General Contractors:

Answer 24

Hire and coordinate other independent contractors to get the job done.

Question 25

Subcontractor:

Answer 25

One that contracts to provide some service or material for the performance of a principal contractor’s contract.

Question 26

What principle was reinforced in Davie Shipbuilding v. Cargill Grain (1978)?

Answer 26

If the employer or principal “who knows better” interferes with the operation of a contractor, the principal will be liable for any consequences from their interference.

Question 27

How can municipal liability arise?

Answer 27

Statutes define the responsibility of cities and municipalities.

Question 28

Misfeasance

Answer 28

The improper performance of something that is legal to do.

Question 29

Nonfeasance

Answer 29

The omission to perform duties which by law one is bound to do. In other words, it is the failure to do something that ought to be done.

Question 30

Malfeasance

Answer 30

An act which in itself is unlawful and is conducted by someone in an official capacity as an official duty.

Question 31

What are some municipal liability exposures?

Answer 31

a. State of the highways and sidewalks
b. Weed and insect control
c. Public utilities
d. Persons working for the municipality

Question 32

How do requirements regarding notice differ between municipal and other types of liability?

Answer 32

The time period varies with the type of loss. The time limit is short; 7, 10 or 15 days from the time of loss. Often must be submitted in writing.

Question 33

How is municipal liability determined in Quebec?

Answer 33

Municipalities are liable like any individual in torts under CCQ Article 1457 and under statutes like the Cities and Towns Act, the Municipal Code, and specific city charters.

Question 34

What standard of conduct is enunciated in section 1457 of the Civil Code of Quebec?

Answer 34

Municipalities are liable like any individual in torts

Question 35

What must an insurer do to protect its subrogation rights?

Answer 35

Require that tenants must carry their own insurance.
If a tenant pays a portion of their landlord’s insurance premium, then the tenant becomes a joint insured, and the insurer will not have subrogation rights against the tenant.

Question 36

Who may bring an action in a class action?

Answer 36

A member of a group for the benefit of all members. A person has to obtain authorization from the court to institute such an action.

Question 37

Member:

Answer 37

A person being part of a group on whose behalf a person brings or intends to bring a class action.

Question 38

In general terms, who may launch a class action and how would they go about it?

Answer 38

When

• Each member of the class has the same interest and not just a similar interest in the subject matter of the litigation.
• The claim is against a discernible fund or an asset existing for the benefit of the class and there only remains to be determined the right of the plaintiffs to the asset in whole or in part and the right of the individual members of the class to a part of the total class entitlement.

Question 39

What procedures are involved in launching a class action in Quebec?

Answer 39

• Prior authorization of the Superior Court must be obtained.
• The plaintiff members must prove that the group shares an interest in identical, similar or related questions of law or fact.
• The court must approve of the representatives of the members bringing the class action.
• If the representatives don’t bring their demand within 3 months of this authorization, the court may declare it no longer valid.

Question 40

In a class action, what conditions does the court impose when the final judgment is given?

Answer 40

• Every final judgment describes the group and binds the members who have not requested exclusion from the group.
• The judgment ordering the collective recovery of the claim orders the debtor either to deposit the established amount with the court or to carry out the process in another appropriate way. The judgment may also fix terms and conditions of payment.
• When final judgment acquires the authority of res judicata (which has the effect of barring another action by an individual to vindicate the same right), the court of first instance orders the publication of a notice. A member may, within one year following publication of the notice, file a claim.

Question 41

What is a limitation period?

Answer 41

A period of time after which a cause of legal action may no longer be enforced.

Question 42

Under common law, when does a cause of action time period begin?

Answer 42

From the date the damage is incurred.

Question 43

How have some limitation statutes modified the common law?

Answer 43

By specifying that the time begins to run from the date the conduct was discovered or some other event.

Question 44

What types of interest might an insurer be called upon to pay in addition to an actual loss?

Answer 44

• Interest levied on the damage award up to the limit of the policy.
• Interest accruing after the entry of judgment is payable over and above the limit of insurance - but only on the part of the judgment that falls within the limit of liability.

Question 45

How is interest computed on a postjudgment in Quebec?

Answer 45

From the day the action is filed to the day when it is paid.

Question 46

How is prejudgment interest on goods computed?

Answer 46

From the date that payment was due until the date of judgment.

Question 47

How is prejudgment interest on non pecuniary damages computed?

Answer 47

From the date of the notice of claim until the date of judgment. May be the date of the cause of action in some jurisdictions.

Question 48

How is interest computed on a postjudgment in the Common law provinces (usually)?

Answer 48

From the date judgment is rendered until the damages are paid.