Study 5: Quebec: Defences Against Extra-Contractual Liability - Summary Flashcards
Defences available to a defendant sued for negligence in Quebec.
The Civil Code prohibits the success of a defence for a person who has committed a gross fault.
It also provides for ways in which the defendant can exonerate him- or herself from liability. The assertion that there was no fault on the part of the defendant is a defence that arises in many of the articles of the Civil Code as a positive statement: If the defendant did “abide by the rules of conduct,” this defence is available to the defendant to avert a finding of being liable for damages.
Onus of proof in Quebec
The onus of proof refers to the duty of a person to provide proof to the court on a case in question. Similar to the common law, the plaintiff must prove the facts upon which the lawsuit is based.
There are exceptions to this general rule. Various Civil Code articles provide for a presumption of fault against the alleged wrongdoer—the defendant. The presumption of fault requires that the defendant show that he or she was not at fault. In effect, this reverses the onus of proof.
Examples of reversal of onus of proof in Quebec
- CCQ Article 1459 - a tutor must prove he did not commit any fault in the custody, supervision, or education of the minor
- CCQ Article 1465 - 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
- CCQ Article 1466 - the owner of an animal must show the victim’s fault
- CCQ Article 1467 - the owner of an immovable must prove that the ruin did not result from lack of repair or from defect of construction
Denial (defence in Quebec)
Generally, when the requirements to establish a lawsuit are not met, they serve as the denial defence against the lawsuit. Includes 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.
Not Endowed with Reason (defence in Quebec)
The Civil Code provides that a person with an intellectual disability can avoid liability.
Superior Force (defence in Quebec)
Also known as force majeure under the law in Quebec, it refers to forces beyond the control and without the fault or negligence of any party. It applies to both contractual and extra-contractual situations.
Voluntary Assumption of the Risk (defence in Quebec)
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. The plaintiff’s assumption of the risk is not a complete defence. Liability must be assessed according to the circumstances of the incident.
Disclaimers (defense in Quebec, related to voluntary assumption of risk)
A disclaimer posted in a notice to absolve a party’s contractual obligation can be invoked if the defendant can show that the injured party was aware of the limitation when the contract was formed.
Defences for a Good Samaritan (Quebec)
Good Samaritans 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.
Contributory Negligence of the Victim (defence in Quebec)
- A share of responsibility is allocated to the injured party (similar to common law)
- When several persons have caused the damage, and it is impossible to determine each person’s involvement, they are solidarily (joint and several liability) liable for reparation.
- This means the plaintiff may sue one of the persons at fault and be fully compensated. The other persons at fault are still liable for the assessment of liability against them.
Defences available in Quebec to manufacturers and others involved in the sale of products.
Overall, the law ensures that manufacturers value the safety of consumers.
- The Manufacturer: The manufacturer can escape liability if the manufacturer did not know of the safety defect in the product because of the state of the knowledge at the time of manufacture, distribution, or supply did not support it.
- The Seller: The seller is not bound to warrant against any latent defect known to the buyer or any apparent defect.
- Product Suppliers and Distributors: Product suppliers and distributors are also bound to warrant the fitness of their products.
- Extra-Contractual Liability: Extra-contractual liability can be assessed against the manufacturer, distributor, wholesaler, or retailer. The defendant will not be able to escape liability if he or she did not provide adequate labelling or warn of a known danger.
Three defences for a manufacturer if the claimant succeeds in proving a safety defect in a product
- The manufacturer could only have known the state of knowledge regarding the product in existence at the 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.
Consumer Protection Act
- Provides that 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. They cannot escape liability by pleading ignorance; they are presumed to know such details about their own products.
- Any subsequent purchasers of the defective product continue to have the right of action against a manufacturer.
Civil Code Limitation Periods
Provides for extensions to the claimant to apply for additional damages when his or her physical condition cannot be determined with sufficient precision at the time of judgment.
CCQ Limitation Period for Children
Special rules apply to children: Prescription starts to run once a minor comes of age. The child is entitled to sue his or her representative or the person entrusted with his or her custody. For example, a child who suffered brain damage at birth could, once an adult, sue his or her parent or tutor for the acts of a negligent obstetrician.
