Study 1-10: Narrative Questions

Question 1

Explain what a nuisance is. Describe public nuisance and private nuisance and give ONE (1) example of each.

Answer 1

• Nuisance: In law, a class of wrong that arises out of unreasonable, unwarranted, or unlawful use by a person of his own property
• Public nuisance: An action or a thing that interferes with the general public. It interferes with the public as a class, not merely with one person or a group of citizens
  
  • Example: A neighbour stores and sells explosive fireworks from his garage in a residential area
• Private nuisance: An unlawful interference of a person’s enjoyment and use of his or her land
  
  • Example: A neighbour plays music loudly in the middle of the night, disturbing the sleep and enjoyment of her neighbour’s home

Question 2

Explain how criminal law differs from civil law.

Answer 2

• Criminal Law
  
  • A crime is an act against society
  • Criminal Code lists acts against society
    
    • prohibited by Criminal Code
    • or certain federal or provincial/territorial statutes
  • Seeks to determine guilt
    
    • Demands punishment by imprisonment or fine
• Civil law
  
  • Lawsuits arise from private disputes
  • Individuals or corporations may sue or be sued
  • Injured party usually looks for monetary compensation
  • Civil court is concerned with setting appropriate compensation for damages suffered
  • Ensures the at-fault party pays compensation to the injured party
  • Civil law seeks to assign fault
  • Civil law and criminal law are not mutually exclusive
  • A person found not guilty of a crime may still face a lawsuit on the same issue
  • Standards of proof are not as high in civil law matters

Question 3

Outline the hierarchy applied to the law of precedent.

Answer 3

Precedent and statute law

• Statute law comes into effect when parliament and provincial/territorial legislatures pass laws into written form
• Statute law is derived from legal principles and criteria are developed by common law
• Statute law is response to a rapidly changing society; supersedes case law when in conflict with the other if the statute covers the point in dispute
• Under common law, courts look to previous cases for guidance on how to resolve current ones
• Research is conducted by lawyers and judges to determine which previous cases are similar in circumstances to their own; when past cases direct the outcome of cases that follow, they set precedence

Question 4

Explain how a reasonable person is described in the legal case of Arland v. Taylor.

Answer 4

The reasonable person is NOT

• an extraordinary or unusual creature
• superhuman
• required to display the highest skill of which anyone is capable
• a genius who can perform unusual feats
• possessed of unusual powers of foresight

Question 5

Outline the circumstances in which parents are responsible for the negligence of their children.

Answer 5

Parents’ liability

• The child was acting on the parents’ express instructions or under their authority
• The child was employed by the parent
  
  • and acting within the scope of the employment
• Damage was caused by a dangerous thing, such as a motor vehicle
  
  • or by an animal that the parents allowed the child to control

Question 6

Name the Supreme Court of Canada case that set out the rules to follow in order to prove a negligence claim based on the breach of a statute. Outline the rules.

Answer 6

• Right of Canada v. Saskatchewan Wheat Pool
• The statute must have been breached
• The conduct that was a breach of the statute must also have caused the damage for which compensation is sought
• The statute must have been intended to prevent the damage that occurred
• The person making the claim must be among the group the statute was intended to protect

Question 7

Name FIVE (5) defences someone can use to defend him- or herself when accused of committing a tort.

Answer 7

• Denial
• Remoteness of damage
• Inevitable accident
• No duty owed
• Emergency
• Act of God
• Voluntary assumption of risk
• Contributory negligence

Question 8

Outline the type of cases where strict liability has been applied.

Answer 8

• Fire or large volumes of water used for industrial or transportation purposes
• Commercial use of or commercial quantities of gas and electricity
• Use of poisonous gases in fumigation
• Spraying of herbicides
• Keeping wild animals or domestic animals with known vicious tendencies

Question 9

State the exceptions defendants can use to be excused from strict liability.

Answer 9

• Act of God
• Escape caused by the plaintiff’s own actions
• Escape by the deliberate wrongful act of a third party
• When the dangerous object is on the defendant’s land with the implied or express consent of the plaintiff
• When the authorization to bring and keep the dangerous object on the defendant’s land is granted by statute

Question 10

Outline the FIVE (5) categories that the CCQ Articles 1457 to 1469 can be roughly divided into.

Answer 10

• Liability for one’s own act or fault
• Liability for others’ acts
• Liability for damages caused by one’s things and buildings
• Liability for damages cause by one’s animals
• Liability of the manufacturer

Question 11

Explain the duty of the Good Samaritan according to Quebec’s Charter of Human Rights and Freedoms.

Answer 11

• Every human being whose life is in peril has the right to assistance
• Every person must come to the aid of anyone whose life is in peril
  
  • either personally or by calling for aid
• By giving the person the necessary and immediate physical assistance
  
  • unless it involves danger to himself or to a third person or there is another valid reason

Question 12

Outline the guidelines the Civil Code of Québec provides for litigants as to what damages can be claimed in cases of extra-contractual liability or contractual liability.

Answer 12

• Plaintiff can sue for bodily injury
• Material damage
• Moral prejudice
• Damages expressed in monetary terms
• Moral damages have been used to compensate solatium doloris (the harm felt by a spouse or relative of a deceased party) and also to compensate the plaintiff in cases of nervous shock.

Question 13

Explain how the denial defence is interpreted according to the Civil Code of Québec.

Answer 13

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

Question 14

Explain how the voluntary assumption of risk defence is interpreted according to the Civil Code of Québec.

Answer 14

• CCQ Article 1477 outlines the benefit to the plaintiff
• The plaintiff’s assumption of the risk is not a complete defence
• Liability will 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, then liability will be apportioned accordingly

Question 15

Explain how the Civil Code of Québec interprets defences for manufacturers.

Answer 15

• CCQ Article 1473
• Manufacturer of a moveable thing is not bound to make reparation for injury caused by
  
  • a safety defect in the thing
• If he proves that the victim knew or could have known of the defect
  
  • or could have foreseen the injury

Question 16

State the general legal principles in insurance liability cases.

Answer 16

• Proximate cause
• Joint tortfeasors
• Joint and several liability
• Solidary obligation (Quebec)
• Vicarious liability

Question 17

Briefly describe the legal relationship between a principal and an agent.

Answer 17

• An agent is someone who acts on another’s behalf
• A principal is someone who is generally responsible for the acts of an agent
• It is implicit that one must be aware of the other’s intentions
• This is usually embodied in an agreement
• An agreement can be expressed or implied

Question 18

How does the common law affect limitation periods, and how do they vary?

Answer 18

• Under common law, when a cause of action in negligence arises, limitation periods commence on the date the damage is incurred
• Some limitation statutes have altered common law, stating that limitation periods commence on the date the conduct is discovered
• Or, limitations periods may commence on the date of some other event
• Limitation periods may vary depending on the circumstances and statutes that govern a particular claim
• Limitation periods can create conflict when liability claims arise years after the original occurrences

Question 19

Discuss how contract theory applies to the ladder of supply.

Answer 19

• Products liability claims may arise from breach of contract or breach of warranty under a contract of sale
• Legal doctrine of privity of contract is established between buyer and seller, limiting the enforcement of the contract’s obligations between them
• The legislation affirms that products sold must be warranted to meet the following criteria:
  
  • Be reasonably fit for their intended use
  • Be of merchantable quality

Question 20

Discuss how tort theory applies to the ladder of supply.

Answer 20

• Products liability claims may arise out of a breach of contract or in tort
• MacPherson v. Buick Motor Co. established the tort theory of products liability when the injured party was allowed to successfully bring action against the manufacturer
• Under the contract theory, MacPherson, who had purchased the car from a dealer, would have had to prove that the dealer was responsible (under contract)
• The court ruled the following: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, then it is a thing of danger, its nature giving warning of the consequences to be expected
• If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser and used without new tests, then, irrespective of contract, the manufacturer of this thing is under duty to make it carefully

Question 21

Explain the responsibility that manufacturers have to warn consumers about the potential dangers of their products.

Answer 21

• The manufacturer has a duty to warn consumers about products that could pose a danger, including defective products
• Includes providing adequate instructions about how to use the product and specific instructions on how to deal with any injury that might occur
• For warnings to be adequate, enough information must be passed on to allow the consumer to make an informed decision whether or not to accept the risk
• Manufacturers of inherently dangerous products are held to a higher standard of care
• Manufacturers’ level of responsibility for taking precautions regarding warnings increases with the potential for injury

Question 22

Explain the purpose of an insuring agreement. Which insuring agreement under Section I— Coverages covers false arrest, detention, or imprisonment?

Answer 22

Insuring agreement

• Explains what the policy intends to cover
• Defines the scope of coverage
• Used to determine whether a claim is covered
• Each of the insuring agreements carries its respective exclusions
• Coverage B. Personal and Advertising Injury Liability covers false arrest, detention, or imprisonment.

Question 23

Describe the history of the use of the terms “accident” and “occurrence” in the insuring agreement Coverage A. Bodily Injury and Property Damage.

Answer 23

Accident in relation to occurrence

• Coverage was broadened when the term occurrence was introduced to the wording
  
  • Use of “occurrence” broadens scope of coverage to any continuous event or exposure
• The term “accident” was restrictive
  
  • It implied that suddenness
  • and definiteness were part of the criteria needed to establish coverage

Question 24

According to Coverage A. Bodily Injury and Property Damage of the CGL policy:

• State the type of damages recoverable.
• Outline the duty and right the insurer has when an insured action is launched against the insured.
• Outline the three conditions that must exist for coverage to be available.

Answer 24

Insuring agreement: CGL Coverage A

• Compensatory damages are recoverable
• The insurer has the duty to defend only if a claim falls within the terms of the coverage
• The bodily injury or property damage
  
  • must occur during the policy period
  • must be caused by an occurrence
  • must take place in the coverage territory

Question 25

State FIVE (5) limit categories that appear in the CGL policy declarations.

Answer 25

• Each occurrence limit
• Personal and advertising injury limit for any one person or organization
• Medical expense limit for any one person
• General aggregate limit
• Tenants legal liability for any one premises
• Products or completed operations aggregate limit

Question 26

State FIVE (5) forms of business, which categorize the legal nature of the named insured.

Answer 26

• Individual
• Joint venture
• Partnership or limited liability partnership
• Trust
• Limited liability company
• Any other organization

Question 27

Explain workers’ compensation legislation and how it came about.

Answer 27

• Workers’ compensation legislation is in force in all provinces and territories in Canada
• Before workers’ compensation legislation was passed, an employer could be sued for injuries to employees on the job
• Employees were required to prove such negligence in court, which was not easy since the evidence was in the control of the employer
• In addition, employees rarely had the financial resources to pursue their claims through the courts, particularly if the injuries were serious enough that they could not work
• To combat these costly lawsuits against employers and to protect employees, legislation was passed to provide benefits to employees who are injured in the course of their employment

Question 28

Outline FIVE (5) situations that create a cyber risk for an organization.

Answer 28

• A rapidly spreading virus is released on the Internet and infects an organization’s system when an employee clicks on the link to the site
• An employee’s laptop is stolen from his or her vehicle
• Ransomware is embedded in the organization’s network, which shuts down access until a ransom is paid
• Hackers set up a program to randomly check the organization’s network security and crack employee passwords, which allows them full access to the company’s system
• A fake email is sent to employees asking them to send the CEO all their research on a new technology the organization is developing
• An email is sent to a company asking to pay a fake invoice, and an employee pays the invoice to an untraceable account and the monies are gone

Question 29

Explain ridesharing and how it works.

Answer 29

• Ridesharing apps (Uber, Lyft, and others) link registered vehicle owners with riders
• The apps provide users the option of selecting from services providing various types of specialty vehicles
• Vehicle owners register with the ridesharing app as independent drivers or “partners”
• Driver partners set their own hours and drive as often or as seldom as they wish
• Riders post their trip requests on the app, including rider details and pick-up and drop-off locations
• Drivers access the app to select ride requests
• Once the ride is complete, the rider’s credit card is billed by the app. In most cities, no cash is exchanged
• Ridesharing app operators pay their drivers based on completed fares and deduct a service fee for providing the app

Question 30

State the questions of concern that are emerging in the insurance industry regarding semiautonomous vehicles.

Answer 30

• How can the insurance industry secure timely information about the collision experience and repair costs for semi-autonomous vehicles?
• Will automakers install a “black box” to record when driver-assistance features are engaged?
• Will insurance companies be allowed to access this data?
• What safety technology will be required by regulation in new vehicles?
• Will the coverage offered need to be redesigned?