Study 6 Flashcards
What are the two systems of law in Canada?
The two systems are COMMON LAW and the CIVIL CODE OF QUÉBEC.
How do COMMON LAW and the CIVIL CODE OF QUÉBEC differ?
They operate differently, but share many LEGAL PRINCIPLES. The difference often lies in the DETAILS.
What topics are explored in this study?
The study covers GENERAL PRINCIPLES of law, LIABILITY relationships, NEGLIGENCE of municipalities, and CLASS ACTION LAWSUITS.
What is one example of a legal topic explored in this study?
CLASS ACTION LAWSUITS—their LIMITATION PERIODS and JUDGMENTS.
What is being compared in this study?
COMMON LAW and the CIVIL CODE OF QUÉBEC and their approaches to legal principles.
What is an important thing to understand in liability insurance cases?
GENERAL LEGAL PRINCIPLES and how they are applied.
What is the PROXIMATE CAUSE in a liability case?
It’s the NEGLIGENCE that directly leads to the injury or damage, without any other intervening cause.
What does JOINT TORTFEASORS mean?
When two or more people act together in NEGLIGENCE, they are jointly responsible for the resulting damage.
What happens when the damage is INDIVISIBLE in a joint tortfeasor case?
Each wrongdoer can be LIABLE for the full damage, and the plaintiff can choose who to collect from.
What is JOINT AND SEVERAL LIABILITY?
The plaintiff can choose to sue just one DEFENDANT, who then has to pay the whole judgment, even if other parties were also at fault.
In JOINT AND SEVERAL LIABILITY, what happens if the defendant seeks compensation from others?
The DEFENDANT may bring third-party proceedings against the other tortfeasors.
What is a SOLIDARY OBLIGATION in Quebec?
It’s similar to JOINT AND SEVERAL LIABILITY. One defendant can be held responsible for the full judgment, but they can work out how to divide damages with other defendants.
What does the CIVIL CODE OF QUÉBEC say about solidary obligations?
In the case of multiple tortfeasors, the victim can claim the full INDEMNITY from one defendant.
What is VICARIOUS LIABILITY?
It’s when someone is held responsible for the actions of another, often in an EMPLOYER-EMPLOYEE relationship.
What happens in VICARIOUS LIABILITY with an employer?
The EMPLOYER is liable for actions their employee takes in the course of employment.
What must the DEFENDANT’S NEGLIGENCE be in order to be the proximate cause?
It must be the EFFECTIVE cause of the injury or damage without any INTERVENING CAUSE.
What happens when the cause of damage is DIVISIBLE in a joint tortfeasor case?
The court holds each DEFENDANT liable only for the portion of the damage they caused.
What happens in the SCOTT v. SHEPHERD case?
A firecracker was thrown around a market, and the defendant was LIABLE for the injury despite the chain of events.
What is the significance of the case The King v. Laperrière?
It established that NEGLIGENCE leading to injury from an abandoned dangerous item is still PROXIMATE CAUSE.
In Beaudoin v. T.W. Hand Fireworks, why was the defendant not held liable for the injury?
INTERVENING NEGLIGENCE by the father and his employee broke the chain of causation.
What is an example of JOINT TORTFEASORS involving drivers?
Drivers A and B race, causing damage to a third party, C. A and B are JOINT TORTFEASORS.
What does JOINT AND SEVERAL LIABILITY give the plaintiff the option of doing?
The plaintiff can choose one DEFENDANT to sue, regardless of how the fault is divided.
In JOINT AND SEVERAL LIABILITY, what happens if only one defendant is sued?
The sued defendant can seek CONTRIBUTION from the other tortfeasors.
What happens when FAULT is divided in joint and several liability?
The plaintiff absorbs their own share of fault, and defendants pay according to their RESPONSIBILITY.
How does SOLIDARY OBLIGATION work in Quebec?
The victim can claim the full INDEMNITY from one defendant, who can later divide the damages with others.
What is the purpose of CCQ Article 1526?
It outlines the SOLIDARY OBLIGATION in Quebec, where multiple defendants can be held responsible for the full judgment.
What does CCP Section 328 state about judgments in solidary obligations?
It requires judgments to be EXECUTABLE and may specify each party’s contribution in the judgment.
What does VICARIOUS LIABILITY refer to in a STRICT LIABILITY context?
It assigns liability to someone for another’s actions based on a special RELATIONSHIP, like employer-employee.
In VICARIOUS LIABILITY, how is an EMPLOYER held responsible?
The employer is liable for an employee’s actions if the employee is acting ON BEHALF of the employer.
What is the general rule regarding PRINCIPAL and AGENT liability?
The PRINCIPAL is responsible for the actions of the AGENT when the agent acts on the principal’s behalf.
What does the phrase Qui facit per alium facit per se mean?
It means ‘one who acts through another acts himself,’ indicating the principal’s responsibility for the agent’s actions.
What must the PRINCIPAL and AGENT be aware of?
They must be aware of each other’s INTENTIONS, which are typically outlined in an AGREEMENT.
How are AGENTS classified?
AGENTS are classified based on the SCOPE OF AUTHORITY, the source of authority (contract), and the nature of the services provided.
How can AGENCY be created?
AGENCY can be created by CONTRACT, RATIFICATION, ESTOPPEL, or NECESSITY.
What is the contractual creation of agency?
AGENCY is created by an express CONTRACT, binding the principal to the agent’s actions within their authority.
What is apparent authority?
Apparent authority arises when the agent undertakes duties in the contract and assumes responsibility for related tasks.
What happens in the case of Agency by Ratification?
If an agent acts without authority but the principal accepts and approves the actions, RATIFICATION creates an agency relationship.
Give an example of Agency by Ratification.
If a brokerage acts for an insurance company without permission but the company later accepts the contract, ratification occurs.
What is Estoppel in agency law?
Estoppel prevents a principal from denying liability when they allowed someone to act as an agent, even without formal authority.
Give an example of Agency by Estoppel.
If a company allows a broker to appear as its agent, it may later be bound by the broker’s actions, even without an official contract.
What happens in Agency by Necessity?
In urgent situations, someone can act as an agent even without explicit authority, such as a carrier selling perishable goods.
What happens when an agent exceeds their authority?
The PRINCIPAL may still be liable if the agent’s actions are ratified or if the agent acts within apparent authority.
How does the Civil Code of Québec (CCQ) define a mandate?
A mandate is a contract where the MANDATOR gives another person, the MANDATARY, the power to represent them in legal acts.
What is the mandator’s liability under the CCQ?
The MANDATOR is liable for the actions of the MANDATARY within the scope of the mandate and for acts ratified after exceeding authority.
What does CCQ Article 2131 state about mandates?
It outlines that the mandate may involve personal protection or the management of the mandator’s property.
What is the mandatary’s responsibility under the CCQ?
The MANDATARY is responsible for fulfilling the mandate and liable for damages caused by failure to do so.
What does CCQ Article 2157 state about a mandatary’s liability to third parties?
When acting within the scope of the mandate, the MANDATARY is not personally liable to third parties, but the MANDATOR remains responsible.
What is the master-servant relationship in liability law?
It’s a historical employment relationship where the EMPLOYER is responsible for the actions of the EMPLOYEE during the course of their work.
In the case of Lockhart v. Canadian Pacific Ry. Co., what was the employer’s liability?
The EMPLOYER was held liable for the employee’s actions even though the employee used his personal vehicle for company business.
When is an employer liable for an employee’s actions?
An employer is liable when the employee is performing duties assigned by the employer, even if the employee acts against rules.
What is the concept of a frolic of his own?
It refers to when an employee engages in personal activities unrelated to work, and the employer is not liable for damages caused.
Is the employer responsible if an employee uses their property for personal use?
The employer is generally NOT LIABLE if an employee uses their property for personal purposes, but exceptions may apply.
How are employers and employees liable for negligence?
Employers may be liable for employee negligence, but employees may also be sued for damages caused by their own negligence.
What is the liability for an Independent Contractor?
An INDEPENDENT CONTRACTOR is personally liable for any negligence, and the PRINCIPAL is generally not responsible for the contractor’s actions.
What is the role of a general contractor?
A general contractor hires and coordinates other independent contractors to complete a project.
What is a subcontractor?
A subcontractor is hired by a general contractor to perform part of the work required for a project.
How does liability work when a general contractor hires a subcontractor?
The general contractor often assumes responsibility for the work done by the subcontractor, unless specified otherwise.
What happens if the work is dangerous?
If a subcontractor is hired for dangerous work, the subcontractor is generally responsible, but the general contractor may still share liability.
What happens if unlawful work is done?
UNLAWFUL WORK is not supported by the law, and the principal or contractor may not be liable for damages resulting from it.
When can the principal be liable due to interference with a contractor’s work?
If the principal interferes with a contractor’s work, the principal may assume responsibility for the results, as seen in Davie Shipbuilding Ltd. v. Cargill Grain Co..
What’s the deal with MUNICIPAL LIABILITY?
Municipalities can be held responsible for NEGLIGENCE. This comes from STATUTE LAW—aka rules made by the government, telling cities what they must and must not do.
What are the 4 types of NEGLIGENCE in municipalities?
We have MISFEASANCE, NONFEASANCE, MALFEASANCE, and good ol’ FEASANCE. Misfeasance is messing up on the job, Nonfeasance is doing NOTHING when you’re supposed to, and Malfeasance is BREAKING RULES with bad intentions.
Can you give an example of MISFEASANCE?
Sure! A city MESSING UP its storm sewer system, which ends up flooding people’s homes.
What’s an example of NONFEASANCE?
Imagine a city knows a SIDEWALK is broken but doesn’t fix it. Someone trips and falls. Guess what? The city’s NEGLIGENCE comes back to bite them.
What’s the exception to NONFEASANCE in HIGHWAY MAINTENANCE?
A city can’t be sued for NONFEASANCE on highways unless a law or bylaw says so.
What’s MALFEASANCE in simple terms?
It’s when someone with authority BREAKS THE LAW on purpose.
In QUEBEC, how are municipalities treated for NEGLIGENCE?
Like any regular person—no special treatment! They follow the same rules for TORTS as anyone else.
How does the CIVIL CODE affect municipalities in Quebec?
It says municipalities must follow the rules FOR LEGAL PERSONS.
How did the LAURENTIDE MOTELS case affect municipalities?
The city messed up FIREFIGHTING efforts by not maintaining its water system. The court said cities are LIABLE when they don’t do their job right.
Why are MUNICIPAL INSURANCE COSTS rising?
They’re going up because of CLIMATE CHANGE, MORE LAWSUITS, and the fact that municipalities are seen as the ‘INSURERS OF LAST RESORT.’
What are some LOSS PREVENTION measures municipalities use?
They HIRE CONTRACTORS wisely, INSPECT WORK, and make sure they have a plan for WINTER MAINTENANCE.
What happens in a TENANT’S LEGAL LIABILITY case?
Tenants are usually responsible for DAMAGES unless it’s something COVERED BY THE LEASE, like FIRE.
What happened in UNITED MOTORS SERVICE vs. Hutson?
The tenants tried to clean with GASOLINE, started a fire, and damaged the property. They were LIABLE for the repairs because their actions were NEGLIGENT.
How does SUBROGATION work in a tenant case?
If the tenant pays for part of the FIRE INSURANCE, the landlord’s insurer can’t SUE THE TENANT.
Do tenants need INSURANCE?
Yup, unless the LEASE says otherwise.
What’s a CLASS ACTION?
It’s a lawsuit where one person represents a group to get justice for everyone. But you need COURT APPROVAL to start the action!
What must be true for a CLASS ACTION to happen?
Everyone in the group needs to have the SAME INTEREST, not just similar ones.
Can a member start a CLASS ACTION on their own?
No! They need COURT AUTHORIZATION to start a class action on behalf of others.
What is the limitation period for a CLASS ACTION?
It’s the time you have to start a lawsuit. If you wait too long, your case might be too late.
What is required for a class action to happen?
Everyone in the group needs to have the SAME INTEREST, not just similar ones. Plus, the case must be against a FUND or ASSET for the whole group.
Can a member start a class action on their own?
Nope! They need COURT AUTHORIZATION to start a class action on behalf of others. Gotta follow the rules first!
What is the limitation period for a class action?
It’s the time you have to start a lawsuit. If you wait too long, your case might be too late (aka STATUTE-BARRED).
What happens if you miss the limitation period?
If you try to file after the period ends, you’re out of luck.
Example: Visitor sues after 2 years? Nope, too late!
How is the limitation period calculated?
It starts when you discover the issue or when you should’ve known about it.
For example, Ontario’s law gives 2 years from when you realize the problem.
How does the limitation period change for children?
For kids, the timer doesn’t start until they turn 18. So, no pressure until they’re legally adults.
What is judgment interest?
It’s interest added to a damage award until the victim gets paid. It’s usually covered by insurance but can go over the policy’s limit.
When does pre-judgment interest apply?
It applies from the date the payment was due until the trial’s judgment.
For example, on goods owed but not paid for.
Do non-economic damages get interest?
Yep! If someone breaks an arm and gets $10,000 for pain, they get interest from when the claim was made until trial.
What’s post-judgment interest?
It starts when the judgment is made, running until the money is actually paid.
In Quebec, it’s calculated from the filing date to the payment date.
How does Quebec handle interest on damages?
In Quebec, interest on damages is based on the legal rate or what the parties agreed upon, starting when the default happens.
Can you get extra compensation on damages in Quebec?
Yes! Quebec can add an extra indemnity to damages if the interest rate is higher than the agreed rate.
Fancy, huh?
Why is it important to know about liability in lawsuits?
Because it decides who’s RESPONSIBLE for harm. It can apply to your own actions or actions of others, even in a group!
Can liability be shared?
Yep! People or companies can be held LIABLE for things they didn’t directly do. This includes relationships like PRINCIPAL and AGENT or EMPLOYER and EMPLOYEE.
How does liability work for municipalities?
Municipalities can be LIABLE for NEGLIGENCE if they break certain LAWS. But claims against them must be filed correctly and within a time limit—miss it, and you lose!
What’s unique about class actions?
The rules vary by province. In Quebec, there’s a FUND to help people who can’t afford to file a class action.
Cool, right?
How do limitation periods affect lawsuits?
They determine how long you have to file a claim. Missing the deadline can kill your case, and the rules change depending on the situation and the law.
Why is understanding interest important in lawsuits?
Because legislation sets rates for PRE-JUDGMENT and POST-JUDGMENT interest. The rules can vary by jurisdiction, so check your province or territory to know when you get interest!
