Study 6: General Legal Principles - Summary

Question 1

Proximate Cause

Answer 1

There must exist an uninterrupted unfolding of events, from the initial act to the conclusion, without the intervention of another cause.

Question 2

Joint Tortfeasors

Answer 2

When two or more persons commit a tort acting together, the negligence is joint. If sued, the wrongdoers may become joint tortfeasors if the evidence shows that they acted together and that their negligent behaviour was the proximate cause of the resulting loss.

Question 3

Joint and Several Liability

Answer 3

Provincial statutes provide for joint and several liability among tortfeasors, which gives the plaintiff the option of selecting one tortfeasor (when there is more than one) to sue. The defendant found liable is responsible for the entire judgment regardless of how liability has been split among other tortfeasors involved.

Question 4

Solidary Obligation in Quebec

Answer 4

The Civil Code of Québec provides that in the case of multiple tortfeasors in extra-contractual matters, any one defendant may be liable for the entire share of a judgment. The solidary obligation corresponds to the common law principle of joint and several liability.

Question 5

Vicarious Liability

Answer 5

Legal liabilities incurred go beyond someone’s own activities. People can be held responsible for the actions of others in a variety of ways when they conduct such actions on their behalf.

Question 6

Relationship between principal and agent in a liability lawsuit

Answer 6

An agent acts on another’s behalf and the general rule is that the principal is responsible for such acts.

• The agent and principal must be aware of each other’s intentions, which are usually embodied in some form of agreement, either express or implied.

Question 7

Creation of Agency (four methods)

Answer 7

• By Contract (Express): relationship between principal and agent, and agent’s authority, outlined in contract
• By Ratification: agent may knowingly act for a principal without express authority to do so - authority is granted when the agent’s actions are accepted by the principal
• By Estoppel: a principal tacitly allows someone to act as an agent on a matter where no authority has been given, cannot later deny authority
• By Necessity: no authority given, but law allows a person to act as an agent due to urgency of a situation

Question 8

Creation of Agency By Contract (Express)

Answer 8

The creation of the relationship of principal and agent by contract is subject to the same rules that affect other contracts. The legal liability of the principal for the activities of an agent depends on 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 that arises from the operation of the contract.

Question 9

Creation of Agency By Ratification

Answer 9

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, ratification is said to have occurred and agency created between the two.

Question 10

Creation of Agency By Estoppel

Answer 10

Estoppel is the restraint 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. When a principal tacitly allows someone to act as an agent but no actual authority has been given, the principal cannot deny liability by saying the agent was not authorized.

Question 11

Creation of Agency By Necessity

Answer 11

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. When the duties of the principal and agent are set down in contract, the parties must abide by them.

Question 12

Mandator and Mandatory

Answer 12

Under the Civil Code of Québec, the law of agency arises as mandator and mandatary and it is quite similar to common law rules on agency.

• An example of a mandate is the contract between lawyer and client retaining the lawyer to defend the client in the courtroom. When the mandatary acts in the name of the mandator within the bounds of the mandate, there is no personal liability to third persons with whom contracts were made. However, when the mandatary acts in a personal capacity, he or she is liable to third parties and third parties still can pursue the mandator.

Question 13

Master and Servant/Employer and Employee

Answer 13

The relationship between owner and employee arises from the historical master and servant relationship when an employee entered into employment to be taught and directed in the skills of domestic, agricultural, or trade duties.

• Not only is the employer responsible for acts the employee is authorized to do, but he or she is also responsible for the way in which they are done.

Question 14

Independent Contractors

Answer 14

A relationship exists with contractors who, in consideration of fees for service or work, undertake to perform for others certain duties involving the use of their special skills.

• This relationship is not that of employer and employee because the contractor functions independently and without the constant supervision of the principal or owner. The contractor must produce the specified results, but how it is done is a personal choice.
• When the person doing the work is an independent contractor, liability incurred while doing the work rests with the independent contractor and not with the employer

Question 15

General Contractors

Answer 15

Independent contractors can be general contractors. General contractors hire and coordinate other independent contractors to get the job done. The contractor hired by a general contractor is referred to as a subcontractor.

Question 16

Sub Subcontractor

Answer 16

The contractor hired by a subcontractor. In the contractual relationship between the general contractor and the client, the general contractor typically agrees to accept responsibility for all the work done including that part done by subcontractors.

Question 17

Exceptions to contractor’s liability

Answer 17

The principal may be held liable for the contractor’s work when:

• Dangerous work is undertaken (the principal may be held liable due to nature of the work, but the contractor may still share liability if there is any cause for it)
• Unlawful work is done (not supported by law or liability insurance)
• The principal interferes with the contractor (ex. Davie Shipbuilding vs. Cargill Grain Co. - principal / employer gave instructions on how to do the work, which resulted in a loss, so the principal was held liable)

Question 18

Categories of Negligence

Answer 18

Negligent acts are often categorized as misfeasance, nonfeasance, or malfeasance. In legal terms, feasance refers to the performance of an activity.

Question 19

Tenants Legal Liability

Answer 19

The relationship between tenants and their landlords is set out in the lease agreement between them.

• Such agreements can be verbal, implied, or written in the common law provinces and territories, but a standard form is mandatory in Quebec for all residential leases.
• The lease agreement defines the responsibility of the tenant for any damage that occurs.

Question 20

Class Action Lawsuits

Answer 20

Maintenance of a class action depends on compliance with the applicable rules of court concerning representative actions. There are subtle differences in the rules for each province and territory. As a general rule, a class action may only be brought where:

• Each member of the class has the same interest (not just a similar interest) in the subject matter of the lawsuit
• The claim is against a discernible asset existing for the benefit of the class

Question 21

Limitation Periods

Answer 21

• Limitation periods are defined as a period of time after which a cause of legal action may no longer be enforced.
• Any action to recover must be commenced within that period of time, or the cause of action is unenforceable.
• Under common law, limitation periods begin to run from the date the damage is incurred. However, some statutes have altered this to the date when the conduct was discovered, or some other event
• Limitation periods can vary widely depending on circumstances and statues governing a claim

Question 22

Judgment Interest

Answer 22

Liability policies also generally cover interest levied on the damage award up to the limit of the policy. However, 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 23

Pre-judgment Interest on Goods

Answer 23

The interest on money owing on goods accrues from the date that payment was due and not the date the plaintiff made recovery at trial.

Question 24

Interest on non-economic damages

Answer 24

• Many jurisdictions now have specific legislation allowing pre-judgment interest from the date of the notice of claim until the date of judgment for non-economic damages.
• Example: A plaintiff who fractures an arm and recovers a general damage amount of $10,000 is entitled to pre-judgment interest from the date of the notice of the claim until the date of trial based on such an assessment.

Question 25

Post-judgement interest

Answer 25

• In common law provinces and territories, interest usually runs from the date judgment is rendered until the damages are paid.
• In Quebec, the interest is computed on the amount specified in the judgment from the day the action is filed to the day when it is paid.

Question 26

Liability of Municipalities in Quebec

Answer 26

In Quebec, a municipality is liable like any individual in torts and under statutes like the Cities and Towns Act, the Municipal Code, and specific city charters.