EXTRA CONTRACTUAL OBLIGATIONS / TORTS
FALL 2020
I.
THE NATURE AND FUNCTIONS OF EXTRA CONTRACTUAL LIABILITY
What do we do when things go wrong, and people have been hurt?
(1) Needs of injured people
There are many responses when things go wrong, and people get hurt as a result of it. The needs
of the victims could be:
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Record/remembrance
Acknowledgement
Apology
Accountability
Access to therapy/healing
Access to education/training
Financial compensation
Prevention and public awareness
(2) Responses to injured people (in society and law)
The responses or regimes to the needs of injured people can take many forms in society and law,
and each one requires a wide range of approaches:
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Community initiatives
Truth and Reconciliation Commission (TRC)
Criminal justice process
Civil actions (private law of civil wrongs)
(3) What are the characteristic features of the private law of civil liability as a response to
human needs? What are some of the questions and categories of analysis relevant to
the law of extra-contractual obligations?
The private law of civil wrongs offers a particular and limited response to victims’ needs so it must
be understood in relation to alternative and/or co-existing responses available in law and, in
general, in the society. It can be flexible in responding to the needs of the victims by way of
providing different schemes of liability, but it does not lead to an adequate response in all of the
cases. Indeed, sometimes the law of extracontractual obligations or torts can be an unsatisfactory
mechanism to carry out the response that is needed in a particular issue: it does not uncover all the
facts, it does not necessarily respect and engage survivors, not in all cases there is authority to hold
people accountable, it does not promote acknowledgment and reconciliation, it does not meet
needs beyond those individuals (to family and community), and not always prevents future harm.
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For the most part, the mechanism of the extra contractual liability is adequate for achieving goals
as financial compensation for victims and deterrence of future harm.
As opposed to the other responses, civil liability is focused on the recollection of past wrong, it is
not primarily about punishment, it does not entail an explicit apology other than a compensation,
and it does not provide a comprehensive compensation scheme without the need to go to court.
There are other responses that could be used for the public recognition of an injury and as a source
of vindication of the victim. For example, settlement is another kind of response which is different
from going to the court to litigate (Final Report of the Truth and Reconciliation Commission of
Canada; Statement of Apology to former students of Indian Residential Schools).
Other kind of response is the administrative compensation scheme based on insurance model
adopted in Quebec for work-related injuries and traffic accidents (Brierly & MacDonald).
When it is difficult to determine fault on the part of individuals, a better response can be a collective
compensation scheme (Residential School’s compensation) where the victim only needs to show
he or she suffered from abuse in order to receive compensation (Restoring Dignity; Agreement in
Principle), however, it may not serve for the purpose of future prevention of harm.
I.1
INTRODUCTORY READINGS
Conaghan and Mansell (Introduction to critical perspective)
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Conaghan and Mansell contend that there is a need in the society for a human and adequate
compensation system which the law of negligence fails to meet.
The underlying ideology of tort law is inspired by the principle of individual rather than the
societal responsibility for the misfortune of others. Furthermore, since its principles and
solutions are grounded on what the common sense perceives to be just and fair, the results
might be arbitrary. Lastly, the way how tort law is structured hinders political change.
Therefore, tort law is not the most appropriate mechanism to respond to public needs arisen
from misfortunes in our society.
The society at large should look for alternative compensation and loss distribution
mechanisms based on social responsibility and other than just tort law which is based on an
individualistic ideology reflected in the predominant notion of fault as source for
compensation. Those different methods should rather focus on the social responsibility for
individual misfortunes.
Law of negligence is impregnated with political and moral values that are specific to a
capitalist ideology which is contrary to collectivism.
The notion of negligence as the principle whereby a person who harms another one must
compensate the latter for the injury caused shows the ideology behind the tort law. There is
an unequal distribution of compensation as it would only be recognized to those whose harm
was caused as a result of fault. In the absence of fault, the loss must lie where it falls despite
the fact that in both cases, i.e., when there is negligence involved or in the absence of fault,
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the harm is the same. There is no logic behind the consideration of fault-based injuries as the
justification for getting compensation.
Fault should not determine who gets compensation - we should consider other alternatives
different than fault-based mechanisms for determining compensation given that the tort of
negligence based on the fault-principle fails as a social response to the goals of compensation
and loss distribution.
Negligence is not a coherent and rational body of rules. For example, its framework is
organised around the overarching notion of fault, but it disregards those situations where fault
is suspended, like in economic loss recovery or nervous shock.
The reality is that fault has little to do with recovery. Compensation actually depends on the
availability of insurance.
Viney (Introduction à la responsabilité)
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Viney asserts that industrial revolution had an important influence in the private law of civil
wrongs as the accidents grew in number and in diversification. For example, accidents related
to automobiles, hazardous substances, explosive, inflammable or poisonous products,
annoyances arisen from pollutant activities or airports, non-disposable waste, spill of oil in the
oceans, etc.
The system of individual responsibility was inadequate to determine the cause of the damages
caused by those new type of accidents, and who was at was at fault.
There was a rising concern in creating new mechanisms to address the social risks.
There was also the need to deal with the imbalance emerged as a result of the standard
consumer contracts.
In this context, the insurance system became more important. The insurance system
undermined the traditional civil responsibility system by opening the door to the
collectivization of risks. Under the insurance system approach, it does not matter whether the
damage was caused due to a negligent act and to determine seek the wrongdoer, but to
determine who was at a better position, prior to the damage, to get an insurance to warranty
the risk. The victim can address the insurer to get compensation rather than the wrongdoer.
Judges are more likely to interpret the requirements for liability in order to dictate a ruling
recognizing an integral compensation to the victims. Indeed, as the prominence of the fault
declined, the influence of the insurance system encouraged the courts in favouring the
development of non-fault liability regimes (for example, the nuisance or troubles de voisanage
claims).
Statutory law also started enacting legislation with objective or strict-liability regimes (for
liability for the act of things, imposed to constructors, manufacturers, etc.).
The determination of liability was concentrated in finding out who was in the best position,
prior to the damage, in hiring an insurance that would have covered the harm. In fact, the
insurance system has contributed to removing the responsible individual imposing the liability
in the insurer.
Englard (The Philosophy of Tort Law)
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Englard affirms that there are three opposing positions in common law scholarship regarding
the underlying principles of tort liability: (i) moral responsibility versus social utility, (ii)
corrective justice versus distributive justice, and (iii) fault versus strict liability.
He proposes that the basis of liability should be pluralistic on the basis of the complementarity
of those allegedly opposing notions.
Calabresi (Torts – The Law of Mixed Society)
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Calabresi states that in the 19th century, the predominant notion was that from a wealth
distribution standpoint, losses were best left on the victims, and that incentives to avoid
injuries should only exist only if it can be shown that the injurers could have cheaply avoided
the loss. But even in those cases, victims had frequently to bear the loss and the incentive to
avoid it. Tort law was used only when letting losses lie on the victims was manifestly
inefficient or distributionally intolerable, or when it was impossible to require possible injurers
to agree compensation with potential victims and precluded desirable activities.
He argues that tort law is the paradigmatic law of the mixed society, which contains rules that
mix collectivistic and individualistic decisions.
In a collectivistic approach, there would not be tort law as the State would forbid the
performance of dangerous activities, and sanction them with criminal law. But if they were
allowed despite its risks because of its benefits to the society, then costs should be borne by
the society in a collective manner.
In an individualistic approach, the society would establish unavoidable “entitlements” setting
out who should bear the risks and costs of harms based on a desirable distribution of wealth
and aiming at minimizing the transaction costs, but it would be up to the parties to
contractually agree on the amount of compensation.
Tort law or civil responsibility is a liability rule that mix both individualistic and collectivistic
approaches: a behaviour is not collectively forbidden because it is risky or required despite its
risks. Individuals are free to choose if they want to engage in risky activities, but their choice
entails civil liability if harm occurs; that is, they must pay compensation which is imposed
and determined collectively (there is no need that possible injurers agree the compensation
with potential victims).
He contends that currently tort law is mainly used in areas where there is skepticism toward
pure collectivism (for example, there are no “entitlements” to act without the burden of
compensating the injuries one causes because the society will consider the behaviour as
undesirable, and therefore, wrong) and pure market (for example, exculpatory clauses are
restricted).
He asserts that in the future, the minimal use of torts would be unacceptable. He sees a trend
in using torts a mixed system whereby the liability rule will serve as a tool for promoting
collective goals and mitigating perceived incapacities of people to decide best for themselves,
while still permitting a wide degree of individual choice and determination.
Cane (Atiyah’s Accidents, Compensation and the Law)
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Cane explains that the tort of negligence says that the costs of the accident should be borne
by the person who caused the accident, whereas in the theory of general deterrence the
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accident costs should be borne by the person who can most cheaply avoid accidents of that
type in the future.
He contends that in a market with conditions of perfect competition, the prices of goods and
services reflect their production costs, including the cost of accidents. However, in real
markets those conditions do not exist, so the theory of general deterrence states that the law
should allocate the costs of an accident to the party that is able in the future to avoid accidents
of that type most cheaply (“cheapest cost avoider”). That way, the person who bears the
accidents costs will take steps to avoid accidents of that type in the future up the point where
those measures do not cost more than the accident to be prevented. If those preventive
measures are not taken, the imposition of liability should be reflected in the prices of the
products or activities, so the consumers would prefer the safer over the less ones.
He mentions that tort law has some mechanisms of general deterrence (the formula of the
Learned Hand to determine liability, and contributory negligence), but states that tort law has
a limited potential of general deterrence:
1) Liability is mostly paid by insurance system (which spreads the accident costs, so that
insured individuals do not feel deterred to continue doing harmful activities).
2) Causation element of liability imposes the accident costs regardless of who was the
cheapest cost avoider.
3) Tort law is a deficient mechanism for compensating injury victims - It does not distribute
the cost between “victims” and “causers” the way general deterrence would require: it
normally does not impose liability in the absence of fault, and in some cases causers of
accidents bear a high proportion of the costs, and in others not.
4) General deterrence aims to minimize the accident costs while tort law entails high costs,
so the deterrence achieved by tort law is not worth it, or the compensatory goals of tort
law can be gotten with insurance systems with law costs and no loss of deterrence.
5) Tort law does not impose all the costs of accidents to those who should bear them (for
example, there are compensation schemes that partially assume the compensation
payment).
6) Tort damages do not take into account the social loss.
A general-deterrence approach has limitations:
1) Deterrence is only one objective among many others - there are cases were an injurycausing activity should be absolutely prohibited despite some people would be prepared
to pay the injury costs).
2) Deterrence is in conflict with loss distribution - while deterrence suggests that losses be
concentrated on the person who can best avoid or minimize them, loss distribution
suggests that losses should be spread over as wide as possible.
3) Deterrence rests on the assumption of perfect competition which is not what it really
occurs in reality.
4) Some consider that deterrence can be reached by way of using a cost-benefit analysis
between how much would be needed to spend to protect health and safety, however, these
decisions can be made on political or moral grounds.
5) Given that the cost of compensating personal injury and death represents a very small
proportion of the total cost of economic activities, it is likely that the enterprises would be
more interested in other factors, such as taxation, labour and materials.
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In summary, general-deterrence approach provides strong arguments in favour of tort law, yet
in light of its relation to personal injury and death, and other serious weaknesses, it should not
justify the retention of the tort system.
Posner (Economic Analysis of Law)
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Posner contends that tort law uses economic reasoning based on notions such as efficiency.
He asserts that is not true that lawyers are not interested in the future when it comes to the
decision of who should bear the cost of a past accident.
According to the Economic Analysis of Law, when judges establish or confirm a rule for the
guidance of the people engaged in risky activities, they are warning that if one behaves in a
certain way and accident results, one will have to pay damages (or will be unable to obtain
damages in the case of the victims). Therefore, the court decisions can have impacts on the
future behaviour of the people engaged in activities that give rise to accidents.
I.2
PERSONAL WRONGDOING AS THE BASIS OF EXTRA-CONTRACTUAL
LIABILITY
I.2.1
THE OBLIGATION TO ACT WITH CARE
We have a tendency to generalize the obligation or duty to act with care towards others.
The obligation to act with care or the duty of care requires that we do not cause injury to others.
How is the obligation or duty to act with care towards others framed in the law?
In Quebec civil law, the obligation to act with care is framed with general rules (Civil Code with
general clauses complemented with few rules), whereas in Canadian common law is formulated
in specific rules (“pigeon-hole”/piecemeal approach with specific tort actions) (Van Gerven).
What are the sources of the obligation to act with care? Under what circumstances are acts
or failures to act characterized as wrongdoing?
In Quebec civil law, the obligation or duty to act with care towards others is set out in art. 1457
CCQ as the duty to abide by the rules on conduct so as to not cause injury to another. Fault is the
failure to act with care (carelessness) that breaches the obligation prescribed in art. 1457 CCQ.
This fault triggers the obligation to make reparation: we can be held responsible for our own
actions if they constitute fault.
In Canadian common law the general tort of negligence applies to wrongful behaviour or a failure
to act with care or negligence. The failure to act with care is negligent, and that is a breach of the
obligation characterized by the tort of negligence. The neighbour principle states: “You must take
reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to
injure your neighbour […] persons who are so closely and directly affected by my act that I ought
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reasonably to have them contemplation as being so affected when I am directing my mind to the
acts or omissions which are called in question” (Donoghue v Stevenson).
The facts that can give rise to the obligation to act with care in Quebec civil law (trigger for civil
liability or fait générateur) are the intentional acts (fault = “delicts”) and the unintentional acts (in
the sense of carelessness or failure to act with care = “quasi-delicts”). In the CCQ, both fault and
carelessness are governed in the same way by art. 1457 CCQ. In the case of intentional acts, they
can overlap with criminal liability. Sheer accidents (“acts of God”) are outside the scope of the
private law of civil wrongs.
Is it any general principle of civil liability at common law? The general principle of common law
is that “the loss from the accident must lie where it falls” (Holmes). That means that in the absence
of fault, the injuries arising from inevitable accidents or from acts that an ordinary human care and
foresight are unable to prevent are nothing but the misfortune of the victim, and there is no basis
for legal responsibility.
In Labelle v. Gatineau, the majority of the Court (Justice Hyde) held that there was a fault on the
part of the City because it failed to fulfill a minimum safety requirement as properly fencing the
municipal dump despite having the knowledge that children frequently came in, and that there was
a fire (they should have foreseen the possibility of an accident and have taken reasonable steps to
discourage children from playing there). The dissent opinion (Taschereau J) held that the City was
not at fault as it fulfilled its obligations by enclosing the field with a fence and affixing signs
forbidding the access. An economic analysis on the reasoning of the judges with respect to the
burden of taking precautions can be made.
I.2.2
THE MEANING OF FAULT AND THE “REASONABLE PERSON” STANDARD
A) FAULT
The kind of behavior that can be characterized as wrongdoing in the Quebec civil law tradition is
a “fault that causes an injury to another”, whereas in Canadian common law is an “unreasonable
or negligent” act.
In both Quebec civil law and Canadian common law, fault or negligence is the failure to take
reasonable care in the way a “bon père de famille” or a reasonable person would have done under
the same or similar circumstances to prevent injury to others (art. 1457 CCQ; Donoghue v
Stevenson).
Fault or an unreasonable or negligent act and the breach of the required duty of care are the triggers
for responsibility.
In Quebec civil law, jurists such as Baudoin tend to hold that the Civil Code incorporated the
principle of liability based on fault, which was reaffirmed in Lapierre (vaccination case) where the
Supreme Court held that Quebec law does not recognize liability without fault (Brierly &
MacDonald).
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Cane suggests that the notion of the fault principle as a principle of morality, in the sense that a
person who harmed an innocent person must compensate him, is problematic for these reasons:
compensation bears no relation with the degree of fault (once fault is established, the injured
deserves a compensation irrespective of the level of fault and seriousness of consequences);
compensation bears no relation to the means of the tortfeasor (for imposition of liability does not
matter whether the tortfeasor is rich or poor, and if the compensation is of a high amount it can
cause a serious financial distress on people modest financial position); compensation is given in
cases when there is no fault such as in the “collective liability”), fault is assessed under an objective
definition (the consciousness of moral wrongdoing is irrelevant); there is a case where liability is
also imposed when legal wrong was not committed (omission); there are cases where
compensation is paid although there is no fault but based on justice considerations (for example,
when liability is required from those who benefit from imposing risks on others), and fault
principle contributes to a culture of blaming and discourages people from taking responsibility for
their own lives.
B) “REASONABLE PERSON” STANDARD
In subjecting the defendant’s act to scrutiny, the law demands a level of “reasonable” conduct, in
other words, each of us is judged according to
What is the reasonable person standard?
The standard to determine fault or negligence is the “reasonable person” standard or the “bon père
de famille” (Donoghue v Stevenson; Oeuvres des Terrains de jeux; art 1457 CCQ). Under this
objective standard we ask whether a reasonable person would have been able to foresee the damage
that occurred as a result of acting without care or negligently in the same circumstances
(Donoghue; Labelle v. Gatineau).
What does it mean that the reasonable person standard is objective? Is it any policy
consideration to characterize it as an objective rather than a subjective standard?
It is an objective standard in the sense that the purpose is not to ascertain what a particular person
would have been able to foresee in that case. It does not matter if the wrongdoer was clumsy,
stupid, had bad judgment, was young, inexperienced, old, handicapped, etc. (Holmes).
A reason that supports this objective standard to determine fault is that the injury caused is the
same, and the victim deserves being compensated (however, if that statement were true, why don’t
we just compensate for the damage even if there was not fault at all?).
What type of attempts have been made to give substance to the meaning of “fault” in the
law? Is it inevitable that some consideration of the “burden” of care be factored into the
meaning of reasonableness?
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The assessment of a reasonable behaviour (reasonable person standard) can be done through an
“economic approach” to wrongfulness and reasonableness. Thus, reasonable behaviour can be
ascertained by determining the balance of the burden of taking precautions (cost of avoiding
accidents) and the probability and the seriousness of the potential harm, so there is negligence
when there was a failure to take adequate precautions despite that the burden to do so was lower
compared to the probability that the accident would occur and the gravity or seriousness if it
happened (Posner: The Learned Hand Formula/Carroll Towing).
Other alternatives to assess the reasonable person standard is by identifying whether the behaviour
implicated the creation of a substantial risk, so there is negligence when there was a failure to
refrain creating a substantial risk (Bolton v. Stone); or by examining the cost of taking precautions
to prevent a harm, so there is negligence when although the cost of taking precaution was minimal,
nothing was done (Wagon Mound II).
The personification of an abstract concept as the standard of the “reasonable person” can be helpful
in judging the defendant’s acts. Viney asserts that an abstract standard for determining liability
(reasonable man/bon père de famille) ensures a minimum of security as to what is the reasonable
behaviour that we can expect from others (“in abstracto” analysis). However, there are certain
cases where the assessment of the reasonable man/bon père de famille must include personal
factors such as age, capacities, skills, and personal knowledge (“in concreto” analysis).
In what ways is the personification of an abstract concept of a “reasonable person” helpful
and/or problematic?
There are critiques to the abstract concept of reasonable man standard/bon père de famille which
see it as problematic. For example, a male judge may subjectively identify himself as a bon père
de famille when this is supposed to be an objective standard (Oeuvres des Terrains de jeux: “Pour
ma part, je crois que personellement je…”), or the feminist scholars who contend that such
standard has a male bias, and it is applied by a male judiciary (Conaghan), so that women are
being judged according to a standard that does not contemplate their particular perceptions and
experiences.
I.2.3
THE DEFENDANT’S ABILITIES
When and in what ways law takes into account the particular characteristics of the
defendant?
Even with an abstract or universal standard of a “reasonable person”, law sometimes takes into
account the character, context, and abilities of the defendant. The objective standard may be suited
to the specific circumstances and characteristics of the wrongdoer.
A) Experts
The notion of “expertise” helps us explore accepted variations on the “reasonable person”.
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In the case of experts or professionals, their enhanced capacity influences the standard of a
reasonable person which has to be adapted to what a reasonable expert in the given field would
have foreseen in the same circumstances (it is a higher standard than the reasonable person
standard).
The conduct of the expert would have to be compared to that of his or her peers in that domain and
in the same circumstances (Roberge v Bolduc; Ter Neuzen v Korn).
The courts will defer to the “standard practice” among experts in the same field with reasonable
level of skills and knowledge in the same circumstances (so conformity to the standard practice
exonerates them from liability), unless the practice itself is “fraught with obvious risk” (when it
does not conform with basic care). If that is the case, the Court can consider the standard practice
unreasonable or negligent in itself (Ter Neuzen v Korn). In Ter Neuzen v Korn, when determining
whether there was a standard practice to prevent the risk of HIV infection in artificial insemination
procedures, Sopinka J (SCC) noted that there was none because the state of knowledge of
HIV/AIDS was highly variable for highly qualified scientists and there were difference in opinions
between the public health authorities and practitioners.
Adherence to a professional standard is not sufficient to exonerate liability if that standard in itself
is not demonstrably reasonable as it disregards the elementary elements of care (Roberge v
Bolduc). In Roberge v Bolduc the notary acted according to the general notarial practice in Quebec,
but L’Heureux-Dube J (SCC) considered that practice as unreasonable.
We can also adapt the standard to the superiority of the defendant, and what he or she would have
foreseen in such case (Viney; Ter Neuzen v Korn).
B) Children
In addition to the requirement that the behaviour be wrongful, faulty, or unreasonable, the law
requires capacity on the part of the defendant.
Capacity is an essential requirement to be found culpable under the law. Sometimes is articulated
as “the ability to discern right from wrong” (a child could be found with capacity if he is able to
discern right from wrong).
The law also adapts the standard of a reasonable person when dealing with children who act in
ways that cause injury to others and include the subjective characteristics and capacities of the
children when analysing the reasonableness of their behaviour.
There are different approaches or tests that law uses in assessing and imposing liability on children
(Van Praagh):
(1) To consider children as incapable of taking care or that they cannot be negligent because
they lack sufficient intelligence, experience, or capacity to take on responsibility for the
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consequences of the childish behaviour. Therefore, they are not liable at all. This applies to
very young children and constitutes the “exemption of for children of tender years”.
(2) To consider children as a reasonable person, capable and mature, and therefore liable. This
is the “adult activity” doctrine: when children fail to behave as such and engage in “adult
activities” (for example, driving a car, mowing the lawn, etc.), they may be found liable as
adults.
(3) To consider the childhood stage of “becoming responsible”, the context and reality of the
childhood development, and the presence and role of responsible adults, by establishing
behavioural norms that recognize all of that. There are different methods to do so:
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Assessing the child with an “average child of the same age”. Under this approach, it is
expected that children will not be aware of the risks of their behaviour the way an adult
would do as ultimately “boys will be boys” (Kitto J in McHale v Watson: “did the
respondent, […] do anything which a reasonable boy of his age would not have done in
the circumstances -a boy, that is to say, who possessed and exercised such degree of
foresight and prudence and is ordinarily to be expected of a boy of twelve, holding in
his hand a sharpened spike and seeing the post of a tree guard before him? […] boys of
twelve may behave as boys of twelve; and that sometimes is a risk indeed”).
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Assessing the child with a “modified reasonable person” test. Under this approach, the
child is compared with a child of similar age, intelligence and experience, and he would
be found liable if he fails to show the reasonable care expected according to this
modified standard. This approach recognizes that children can learn to be responsible
over their childhood, and they are assigned liability depending on their appropriate age
(McTiernan J in McHale v Watson: “it seems to me that the present case comes down
to a fine point, namely whether it was right to for the trial judge to take into account
Barry’s age in considering whether he did foresee or ought to have foreseen that the socalled dart might not stick in the post but be deflected from it towards Susan who was
in the area of danger in the event of such an occurrence. I think that there is no ground
for disagreeing with the conclusion of Windeyer J on this question. The correctness of
this decision depends upon the special circumstances of the case […]”).
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Assessing whether the child was able to discern right from wrong, and whether the
behaviour itself was objectively unreasonable.
In Canadian common law, courts apply the modified reasonable person test.
In Quebec civil law, they adopt the two-prong test for determining the child’s liability by focusing
on the assessment of the child himself/herself (was he/she able to discern right from wrong?) and
an objective analysis of the conduct (was the act unreasonable/fautif in an objective sense?) In
Ginn v Sisson, a 6-year-old was found liable under art 1053 CCLQ because the court held that
stone throwing act was an objective unreasonable behaviour and the child knew that he would be
punished for doing that (“the child acknowledged that his father would have punished him had he
known that he injured someone by throwing stones”).
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I.2.4
CONTEXT: FAULT’S RELATIONSHIP TO SPECIFIC NORMS
Does the private law or civil wrongs should adopt the specific standards of behaviour
articulated in custom or statute?
It is possible that specific standards of behaviour are already articulated in a given context, either
implicitly (custom) or explicitly (statute).
A) Custom
Custom can inform the court’s assessment of what constitutes reasonable care in any given set of
circumstances. However, the custom must not be inherently negligent. If certain community
practices are unreasonable in themselves, or otherwise not acceptable by the courts, the defendant
cannot used them as a defence (“everyone else does it” is not a valid defence) for justifying his
failure to take reasonable steps to prevent injury to others (Waldick v Malcom). In Waldick v
Malcom, Iacobucci J (SCC) considered that the “customary practice” of not salting or sanding
driveways was unreasonable in itself, hence, it could not be used as a defence.
B) Legislated Norms
As to the legislated norms (statutes), in Canada it is not enough to simply point to the violation of
the express standards, but we still have to make an argument that turns the violation into
unreasonable behaviour for the purposes of establishing negligence or (unintentional) fault (The
Queen v Sask Wheat Pool).
In The Queen v Sask Wheat Pool, Dickson J (SCC) held that all the grain came from the Board,
hence, the Pool was not at fault; furthermore, he asserted that the breach of the statute concerning
the discharge of infested grain did not give rise by itself to liability, and it would have been
necessary that the Board proved statutory negligence (an intentional or negligent failure to comply
with a statutory duty).
In other words, the breach of the standards is not on its own a trigger for liability in private law. It
is still required to determine a fault or an unreasonable behaviour on the part of the actor (art. 1457
CCQ; tort of negligence). That is, that the defendant intentionally or negligently failed to comply
with a statutory duty.
Legislation can be useful in determining liability under the private law of civil wrongs, especially
when it incorporates standards of reasonable behaviour and the fault is the breach of it, so it might
be appropriate to presume a causal link (Morin v Blais). In this case, Beetz J (SCC) held that “many
traffic provisions lay down elementary standards of care and make them binding regulations at
the same time. Breach of such regulations constitutes civil fault. In cases where such fault is
immediately followed by an accident which the standard was expressly designed to prevent, it is
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reasonable to presume that there is a causal link between the fault and the accident, unless there
is a demonstration or a strong indication the contrary”.
In the common law tradition, there are other different approaches to the adopted by Canada:

English position: The breach of a statute that causes a damage is a different tort unrelated to
negligence. In this case, the plaintiff only needs to show the breach of the statute and a damage
caused by the breach. This approach is problematic because the courts have to assess the scope
and purpose of the statute and find out the policies underlying it to determine whether the
“intention of the legislature” was to create a duty whose violation would give a right of action
for the injured party to claim damages in a civil action, or if the duty created by the statute
was owed primarily to the State.

American position: The statutory breach is not a different tort. It is assessed under the general
law of negligence. However, there are two positions: (1) The breach of the statutory duty may
constitute negligence per se (the unexcused violation of the statute is negligence in itself), and
(2) The breach of the statutory duty may be considered as evidence of negligence (ranging
from irrelevant to prima facie evidence of negligence unless proven to the contrary). This
approach is problematic because it follows the application of the criminal standard of conduct
to a civil case, despite the fact that the defendant does not have the protection of criminal law,
civil consequences may outweigh the penal consequences, and in a civil claim the
compensatory aspect is more important than the deterrent and punitive aspect.
II.
OTHER BASES FOR EXTRA-CONTRACTUAL LIABILITY: LIABILITY FOR
THE ACTS OF OTHERS OR THINGS
II.1
ALTERNATIVES TO FAULT-BASED PERSONAL LIABILITY
We can be held responsible for our own actions if they constitute fault or negligence (art. 1457
CCQ; tort of negligence); we can be responsible in certain situations for the actions of others in
the case of vicarious liability of the employer for the wrongful action of an employee, either
negligent or intentionally wrongful (art. 1463 CCQ; Bazley; Jacobi) and in the case of indirect
paternal liability for the harms caused by children (arts. 1459, 1462 CCQ; Ontario Parental
Responsibility Act); and we can be responsible for the harm produced by things under our control
(art. 1465 CCQ “autonomous act”; tort of Rylands v. Fletcher).
Responsibility for the actions of another person may be based on a presumption of liability or of
fault; as may be responsibility for harm caused by something under the defendant’s control.
No-fault, strict, or risk-based liability is an alternative to fault-based liability where responsibility
is imposed even in the absence of personal wrongdoing.
Those special regimes (or separate torts) may impose liability in the absence of personal
wrongdoing, and they are designed to protect particular interests. It is fair in certain circumstances,
13
as recognized across different legal traditions, to require someone who has acted reasonably to
repair the harm suffered.
In Vincent v Lake, the ship owner deliberately took action in taking the ship to the dock. He did
not have the intention to cause damage to the dock. The court was satisfied that the parties acted
prudently and reasonably. However, while the ship owner acted prudently (that is, he did not act
unreasonably), he benefited of the plaintiff’s property for the purpose of preserving the value of
his ship and given that under their system of jurisprudence compensation must be made, the court
held that the plaintiff was entitled to compensation.
In Lapierre, the plaintiff’s daughter was vaccinated against measles as part of a government
vaccination program but was disabled by an acute viral encephalitis. Although the Quebec
government was not at fault, the plaintiff argued that it was subject to no-fault liability from
necessity under art. 1057 CCLC. It should be desirable to get compensation when a risk
materializes in injury, however, the Supreme Court held that Quebec law does not recognize
liability without fault, that is, in Quebec there is no space for a risk-liability system. In Quebec law
liability must be grounded on the existence of fault or wrongful behaviour. After this case, Quebec
implemented a compensation program for those who could suffer negative consequences related
to vaccination.
Hurd suggests that liability based on negligence or carelessness is misleadingly characterized as
fault-based. She suggests that liability for the consequences of one’s negligence should be properly
be understood as based on “risk” rather than “fault”. Therefore, “strict liability” is more important
than is usually acknowledge in the private law of civil wrongs.
II.1.1 LIABILITY FOR INJURY CAUSED BY THE ACTS OF OTHERS (VICARIOUS
LIABILITY - PRESUMPTION OF LIABILITY)
Both vicarious liability and indirect parental liability move away from the “liability for the
consequences of personal wrongdoing”, and incorporate thinking and justification drawn from
“enterprise liability”. However, “enterprise liability’ is not a trigger or a source of responsibility
whether in torts or under the CCQ. Instead, it introduces a ‘risk-based’ justification for imposing
liability on actors who have not demonstrated personal wrongdoing and is reflected in
modifications to fault-based liability.
Vicarious liability is an obvious example of the “enterprise liability” based upon the “risk-based”
regime. If the harm is the result of some person’s actions – and if that person was an employee
doing something wrongful (which constitutes a tort or satisfies art 1457 CCQ) in a way connected
to his or her employment (following the SCC’s material connection test) – then employer could be
found strictly liable (presumption of liability – no defence based on absence of fault).
In the context of the family or the workplace, the law recognizes the existence of a particular
connection between the defendant (employer or parent) and the actor/wrongdoer (employee or
child) that may justify responsibility on the part of the defendant.
14
In the case of the workplace, vicarious liability is a tool that was developed in both law regimes to
hold employers strictly liable for the faults of their employees. Vicarious liability is different from
a compensation scheme (e.g., Workers Compensation) as this is grounded in broad enterprise risk
where all employers/enterprises pay in, and all employers are covered.
In both Canadian common law and Quebec civil law exist the notion that the employer must be
held liable for the risk that was created in the scope of the employment (Ira Bushey v USA; art
1463 CCQ).
In Ira Bushey v USA, the policy consideration of “enterprise risk” was offered as a way to ground
vicarious liability. Under the principle of “respondeat superior” enterprises cannot deny
responsibility for damages caused by the employers’ wrongs that arise under the context of the
employment as those are risks that are characteristics of the enterprise, therefore, they are
foreseeable risks.
The rationale is that by imposing liability on the principal, you would expect a better commitment
from the employer in adopting better practices and taking preventive steps to prevent injuries
caused by its employees (although it may argue to the contrary by saying how would an employer
be encouraged to improve its practices regarding their employers if he would anyway be found
vicariously liable regardless of any fault on his part). Also, the enterprise is getting benefits for
running the business and it should absorbe the costs caused by their employees. Furthermore,
employers have more resources available to repair the harm inflicted to the victims.
Although in both Quebec civil law and Canadian common law the employer’s liability is strict, it
is not completely free from “fault”. For a successful vicarious liability claim, there must be fault
on the part of the employee. The employer cannot escape from the liability with a defence based
on the absence of fault. The plaintiff must show that the harm suffered was the result of some
wrong: fault under art. 1457 CCQ or negligence (Donoghue v Stevenson), or an intentional even
criminal wrongdoing (Axa; Bazley; Jacobi).
When it is difficult to prove the fault on the part of the employee, or furthermore when there is no
fault, the employer will not be held liable. However, there will continue to be a victim who
deserves to receive a compensation so we should seek other avenues for redress. For instance, if
the case at hand can also be assessed from product liability arisen for a defective product, it would
make more sense to resort to that scheme as it is also grounded on strict liability (art 1473 CCQ).
In both legal systems vicarious liability requires three elements: (1) Existence of an employment
relationship (employer-employee), (2) An injury committed by the employee (or subordinate) as a
result of fault or negligence, or intentional wrongdoing, and (3) A degree of connection between
the employee’s tasks and the injury he committed (this is the most contentious element especially
when the employee’s wrongdoing is intentional).
In Quebec civil law, vicarious liability is the legal obligation of the principal to make reparation
for the injury caused by the fault of his subordinates in the performance of their duties (art. 1463
CCQ). In Canadian common law, vicarious liability is the liability imposed to the employers for
the damages caused by their employees in the course of their employment, which requires that the
15
employee be acting within the context of his/her job, and that this was a risk introduced into the
society by the employer (Bazley; Jacobi).
Le Havre and Bazley show that it is difficult to draw a clear line between wrongdoing “in the
performance of duties” (or “dans l’exercise des fonctions”) and the wrongdoing disconnected
from the employment context.
In Quebec civil law, the court approach for vicarious liability for employee’s intentional
wrongdoing was laid out in Le Havre case where art. 1054(7) CCLC was applied (“masters and
employees are responsible for the damage caused by their servants and workmen in the
performance of the work for which they are employed”).

Lebel J (Quebec’s Court of Appeal) defined the scope of the employee’s performance of work
in the notion of “benefit”. He relied on the scope of employment test developed in previous
cases to determine whether the employer’s wrongful act had the purpose of benefit his
employer in some way, and he established that the principal is vicariously responsible for the
breach of the employee’s duties, even if the wrongful act is intentional or of criminal nature,
if (i) the wrongful act is committed while the employee is performing their duties, and (ii) the
wrongful act benefits, at least partially, the employer.

The notion of “benefit” is significant in the legal reasoning: as long as the employee’s
wrongful act benefits the employer, vicarious liability can be imposed regardless whether the
employee’s breach implied a modification of the performance methods, its time, the place of
execution, or if it was done with or without the consent of the principal. Under this
assumptions and approach, an employer would be unable to mitigate risks as it suffices to
show that the employer’s wrongful act furthered the employer’s interest and brought him or
her a benefit, for the employer to have to bear the responsibility for the damages caused by
his or her employee.

In Le Havre, the shelter was not held directly nor vicariously liable for the money that the
employee obtained from the plaintiff. As to the direct liability, the Court found that the shelter
was not at fault in hiring and training its employee. Regarding the vicarious liability, the Court
found that the shelter ignored that the plaintiff left the premises and went to the employee’s
household, the wrongful act was committed outside of the employee’s role, and the employee
infringed the instructions she received to perform her functions, especially those prohibiting
her from accommodating clients at her home. In other words, the employee’s wrongful act
was out of the scope of her employment. Furthermore, it was found that the employee was
acting only on her own interest and that her wrongdoing did not benefit Le Havre.
How do Justice McLachlin and Justice Binnie differ in their approach to, and use of,
“precedent”, “policy” and “principle” in Bazley and Jacobi cases dealing with vicarious
liability? Does fault seem to play an implicit role in the judgements? How far might the
notion of “enterprise risk” go?
In Canadian common Law there are two important cases: Bazley and Jacobi:
16

Bazley v Curry contributed to the theory and practice of the vicarious liability because the
SCC found a method for imposing vicarious liability on the employer in instances where an
employee has committed and independent, intentional wrong.
In Bazley, McLachlin J confirmed the application of the Salmond test to define the scope of
employment. However, she found that the differentiation between an “unauthorized act” and
an “intentional wrongdoing” was problematic, and proposed a twofold approach: first, courts
should look at the precedents, and second, courts should decide whether imposing vicarious
liability in light of the policy rationales underlying strict liability.
McLachlin J incorporated an explicit consideration of policy (“the employer’s enterprise had
created a risk that produced the tortious act) into the adoption of a principled test for imposing
vicarious liability (“there must be a strong connection between what the employer was asking
the employer to do (the risk created by the employer’s enterprise and the wrongful act … the
employer significantly increase the risk of the harm by putting the employee in his on her
position and requiring him to perform the assigned tasks”).
This method was different to the approach based on the employer’s “benefit” used in Le Havre
case as it focus on the notion of “enterprise risk”. To achieve this, McLachlin J went from
“precedent” and “policy” to “principle”.
Precedent: McLachlin J looked for previous similar cases and found these common features:
(i) The employer’s enterprise had created a risk that produced the wrongful act; and (ii) the
employee’s conduct was closely tied to the risk that the enterprise introduced in the
community, that the employer should be held vicariously liable for the employer’s wrong.
Policy: Then, McLachlin J examined the policy considerations supporting the imposition of
vicarious liability in search of a guiding principle: (i) Fair compensation (it is just that the
enterprise that introduces a risk for its own economic interest must bear the losses related to
it. This principle is also applicable to charitable enterprises, despite the fact that they do not
have economic interests, as the goal is to provide effective compensation to the victim, and
(ii) Deterrence (imposition of vicarious liability promotes employer’s interest in improving its
organization and supervision in order to prevent future harms).
Principle: McLachlin J found that the policy considerations of vicarious liability are closely
linked to the notion that enterprises must bear the losses for the risks they introduced into the
society. Therefore, vicarious liability can be imposed when there is a strong and closely
connection between the employment enterprise and the wrongful act (new risk-based principle
that justifies the imposition of vicarious liability). McLach. lin J further provided five factors
to determining whether the connection between the employer’s creation or enhancement of
the risk and the employer’s wrongful act was sufficient: (1) Opportunity the enterprise
afforded to employee to abuse his or her power, (2) The extent to which the wrongful act may
have furthered the employer’s aims, (3) The extent to which the wrongful act was related to
friction, confrontation, or intimacy inherent in the employer’s enterprise, (4) The extent of
power conferred on the employee in relation to the victim, and, (5) The vulnerability of
potential victims to wrongful exercise of the employee’s power.
17
In this case, the Court found that the Foundation was vicariously liable for the sexual assaults
against the children by its the employer because the employer’s enterprise created and fostered
the risk that led to the ultimate harm: the terms of his employment required parental
relationship and power and gave the opportunity for intimate private control that created the
special environment for the abuse. That abuse was not a mere accident of time and place, but
the product of the special relationship of intimacy and respect fostered by the Foundation, as
well as the special opportunities for exploitation of that relationship it furnished.
However, the difficulty did not disappear. There was a disagreement in Jacobi over how to
assess the relevant factors, and in Axa the Quebec Court of Appeal did not discard the benefit
to the employer notion as pertinent to the analysis.

In Jacobi, Binnie J stated that the employer must significantly increase the risk of harm by
putting the employee in his position and requiring to perform the assign tasks.
In this case, Binnie J found that the employer did not create a material increase of the risk of
assault committed by the employee because the assault was only possible when the employee
undermined the public nature of the Club’s activities and attracted the victims to his home. He
also stated that Club did not magnify the degree of contact, intimacy and power in the
employee’s tasks.

In Axa Assurances v Groupe de Securite Garda, the Court held that Bazley and Jacobi
decisions deserved consideration. It also indicated that they were useful as they defined the
principles underlying vicarious responsibility set out by art 1463 CCQ. But the Court did not
apply the test laid out in Bazley. It held that the security company was vicariously liable
because there was an inherent risk that in the ordinary course of running its security business,
which was that the people who it entrusted to guard against external threats may misuse that
trust to threaten the property themselves. Furthermore, it stated that if the employee had
succeeded in making others believe that he extinguished the fire lit, this act would have
benefited the employer by demonstrating the quality of its services.
II.1.2 INDIRECT PARENTAL LIABILITY – PRESUMPTION OF FAULT
What justifications exist for extending or circumscribing liability for the acts of others, and
how are legal principles and social policies intertwined in this area of law?
Children should be able to explore and interact with others and things as that promotes a sense of
learning and intellectual discovery in the child, but at the same time they need to learn how to be
responsible for their acts (Van Praagh). While parent and child are always connected through the
presumption of fault, that presumption can be considered depending the age. Therefore, the
defence arguments made by parents regarding the reasonableness of their behaviour vary
depending on the age and stage of the child:
18

Young child / child of tender years: As they are just learning how to discern right from wrong,
hence, parental supervision is required. In this case, parents might be found directly liable on
the basis on their own wrongdoing (no presumption as the one in the CCQ would be required).

Infants in transition from discovery to responsibility: They may be aware of the danger of
their behaviour (they might know right from wrong) but do not measure or comprehend the
consequences and risks (they do not show right behaviour though). Parent can only escape
liability if shows that provided education, was supervising the child and discouraged the
negligent behaviour.

Adolescents: Education received in early years is more important than parental supervision.
How does indirect liability, illustrated in the context of parental responsibility for the acts of
children, differ from vicarious liability?
Unlike vicarious liability, there is a significant difference between Quebec civil law and Canadian
common law concerning indirect parental liability.
In Quebec civil law (both in art 1459 CCQ, and previously in art 1054(6) CCLQ) there is an
explicit provision dealing with the possibility of indirect liability of a parent for the harm caused
by the act of fault of a child. Unlike vicarious liability, parental liability under art 1459 CCQ is not
strict liability, but it is fault-based. There is a presumption of fault (not a presumption of liability)
which means that for a successful claim against the parent, the victim does not need to prove
wrongful parental guidance and surveillance. It is presumed that the parent failed as a “teacher”
(especially in the case of hams done by very young children) and that can be rebutted by a defence
of the parent showing that he was reasonable in bringing up the child and supervising his daily
activities (parental supervision of children at school is not expected). The parent can rebut this
presumption by showing reasonableness in custody, supervision and education.
In Canadian common law there is no explicit rule imposing indirect liability of a parent for the
harm caused by the act of fault of a child. There is reluctance in requiring indirect or vicarious
liability on the part of the parents because it is considered that parents do not control their children.
Parents’ responsibility over their children is exercised by developing a separate responsibility of
them (Van Praagh).
However, there may be jurisdiction specific legislation such as the Parental Responsibility Act in
Ontario that has a presumption of parental fault regarding the child’s negligent behaviour resulting
in a damage, that is, those legislation are not completely free from fault (s. 2. “The parent is liable
for the damages unless the parent satisfies the court that, (a) he or she was exercising reasonable
supervision over the child at the time the child engaged in the activity that caused the loss or
damage and made reasonable efforts to prevent or discourage the child from engaging in the kind
of activity that resulted in the loss or damage; or (b) the activity that caused the loss or damage
was not intentional”). In the absence of specific legislation, in Canadian common law parents may
be found liable in situations of harm inflicted by their children only on the basis of their own
personal wrongdoing (this is a direct responsibility on the part of the parents based on their failure
to supervise and control the activities of their children).
19
Between the Ontario’s Parental Act and art 1459 CCQ are similarities and differences in terms of
how liability on the parts of parents is set out. Regarding the similarities, in both there is a
presumption of parental liability. As to the differences, in the case of the Ontario’s Parental Act
parents are liable for intentional damage by their children, and liability can be avoided only if the
parents show that they adequately supervised the child at the time the child engaged in the wrongful
activity and that they reasonably tried to discourage the child from doing so; whereas in art 1459
CCQ parents are liable for injuries caused by act, omission or fault by the children (not only
intentional acts), and liability can be avoided if the parent proves that the did not fail to exercise
the custody, supervision or education of the child.
If we read art. 1459 CCQ in conjunction with 1462 CCQ, we can see that the act, omission of fault
of the child (“person not endowed with reason”) must be considered objectively wrongful. That
means that the parent would not be indirectly liable for the damage caused by accidents of the
child (for example, the child trips and breaks something).
II.1.3 LIABILITY FOR INJURY CAUSED BY THINGS
There are many scholar positions regarding the liability for injury caused by things.
Keating argues for a strict-based liability system where those enterprises that assume risks should
be held liable because they receive profits in good times and must face the consequences of their
actions in the bad times. Enterprises are often in a better position to bear the cost of the injuries
that caused to others. In other words, strict enterprise liability is a fairer standard than negligence:
it is fairer for the victims, who do not have to bear the cost of their injury, and it is fairer to the
injurers who have to accept the cost of the conduct from which they made profit. l
Cane critiques the nature of the fault-based systems as being inefficient and ineffective, and
advances that under the theory of general deterrence, the cost of the accident should be borne by
the person who can most cheaply avoid accidents of this type in the future.
Josserand proposes the theory of “risk-profit” so that when a passive victim was harmed by a thing
set in movement by another person, and that person gets a profit out of thing, he has to bear the
cost of the loss due to the benefit he obtained. Josserand did not want his theory to be limited to
work-related accidents or things used in an industrial or commercial setting.
In the private law of civil wrongs, the owner of a thing, who uses it for its own purposes, is
considered liable when that use causes harms to others. Yet ownership of a thing does not suffice
for holding the owner accountable as it is necessary the existence of fault.
Can you find the justification for the regime of strict liability offered in the development of
art 1054(1) CCLQ in Quebec jurisprudence?
In Quebec civil law the jurisprudence developed an interpretation of art 1054(1) CCLQ to create
a regime of strict liability for injuries caused by things. In Doucet, the Court looked at the text of
20
arts 1053, 1054 and 1055 CCLQ, and noticed that art 1053 provided a general regime, art 1054
listed a variety of cases dealing with liability for persons under one's care, and art 1055 referred to
liability for animals and buildings. Hence, the Court found three big ideas: personal liability,
liability for the act of others and the liability for the act of things. It also realized that the first
paragraph of art 1054 contained something that could be characterized as a Preamble that referred
to the fact that liability extends not only in relation to persons under one's control, but also things
under one's control. They considered this paragraph as if it was introducing the subsequent
paragraphs of art 1054 (related to liability for act of people) and the subsequent art 1055 (related
to liability for act of things). Hence, what it looked like a Preamble in art 1054 CCQ was turned
into a substantive regime of liability for act of things, or some sort of free-standing regime of
liability for act of things. The assumption made in the Doucet decision was that the codifiers did
not speak for no reason, that it made no sense to have an introductory preamble, that there must
have been some substance, and that there was some independent regime of liability for act of
things. Actually, that was not actually what the first paragraph of art 1054 CCLQ seen as preamble
actually meant, but it was used to address a social, economic and political issue related to industrial
accidents and work-related injuries, and the kind of events described in Rylands v Fletcher ("harms
arising from non-natural uses").
But even assuming like there is some independent liability for act of things in that preamble, which
everybody recognizes was not meant at the outset, there was a lot of contention whether it was a
fault-based liability, some kind of presumption of wrongdoing, or a liability without fault regime.
However, the Court looked at the expression “ci-dessus” of 1054(6) CCLQ and considered that it
was an exculpatory clause of art 1054(1), concluding that there was a presumption of fault unless
the defendant proved that took the reasonable preventive steps to avoid damages. Therefore, it is
a fault-based tort of injury occasioned by things.
The Doucet case and the interpretation of art 1054(1) CCLQ occurred in a period of development
of social sciences, social unrest, in which labour movements were becoming significant, and
activities that generated inevitable injuries needed to be addressed in a different way (Josserand),
but also because the new injuries that appeared were conceived, thought or conceptualized in a
different way. That enabled the shift from individual fault-based liability in a liberal understanding
to some kind of socialization of liability, and then further on the 20th century’s collectivization of
risk and development of social schemes of compensation. Hence, there was a shift happening from
wrongdoing as the basis of liability to some form of economic or industrial activity as the source
of risk with you must bear (principe de polluer payer) or internalization of costs related to your
activity slowly leading us to something like social schemes of compensation such as Automobile
Insurance Act in other more recent forms of collectivization of risks.
In City of Montreal v Watt and Scott, the Court affirmed that the exculpatory clause of 1054(6)
CCLQ was going to apply to 1054(1) CCLQ. That is, the promise of broad risk-based liability in
Doucet was pulled back closer to fault-based liability with a presumption, so that the defendant
actually did have something to say to excuse himself from liability. It was a commitment to
keeping the private law focused on fault with very little space for an alternative, and in shifting the
incorporation into the law of collective responsibility to the legislator, in statutory frameworks,
and compensation schemes, etc. In a sense, it closed the door for the use of creativity on this notion
of liability.
21
What models of liability can be identified in the Quebec cases, and how are they reflected on
the CCQ’s current regime (arts 1465 -1467)?
Currently, in Quebec civil law liability for acts of things is governed by art 1465 CCQ that sets out
that the custodian of a thing is not liable for the damage caused by the thing unless there is a fault
on his part. Thus, the owner may escape liability if he proves that he was not at fault. But, if the
elements of art 1465 CCQ are satisfied, including the ‘autonomous act’ of the thing, there is a
presumption of fault on the part of the custodian of the thing. If no defence were successful, that
would lead to liability.
As a matter of fact, art 1465 CCQ is not currently relevant as Quebec took the legislative route to
address most of the events that can be characterized as inevitable accidents resulting from the
interaction of citizens in modern life. For instance, Quebec has an Automobile Insurance Act,
which as socialization of risk, that made it irrelevant to use 1054(1) CCLQ, and a Consumer
Protection Act. Much of the issues arising from autonomous acts of things are kinds of accidents
which are the consequence of defective products that are addressed primarily by the Consumer
Protection Act. But even the Civil Code provisions on the defective products do not have much
bite relative to what is going on in the Consumer Protection Act.
How would you characterize the reasoning that produced the “rule” in Rylands v Fletcher?
What justification is offered for the regime of strict liability found in Rylands, a common law
case understood today as the basis for a free-standing and extremely limited tort?
In Canadian common law, Rylands v Fletcher is a case that appeared as an opening up for strict
liability as a tort but ended up being interpreted and applied very narrowly. Today it raises more a
theoretical discussion than any real application (which sounds similar to what happens to art 1065
CCQ). Indeed, the applicability of the strict liability tort of Rylands v Fletcher is very limited as
all of the following conditions must be met in order to impose liability: a person who for his own
purpose brings onto his land and keeps there something likely to do mischief, must keep it at his
own peril, and if it eventually escapes, he is responsible for all the damage caused as a consequence
of the escape (and in addition to that, there must be a non-natural use of the land). In other words,
there must be a land-owning claimant bringing an action against a physical neighbour for a damage
occurred as a consequence of the escape of a thing. The defences against an action grounded on
Rylands v Fletcher are asserting that one or more elements are not present or pointing out to other
causes (for example, that the damage was caused by the plaintiff himself or was due to an Act of
God).
In the case of damages to autonomous things such as machines operating with artificial intelligence
and capable of making decisions autonomously, we can reconsider the notion of fault as a
fundamental notion for compensation (Conaghan and Mansell). By way of seeing the autonomous
objects as “employees” that are advancing the interests of the company, which in turn, have
assumed the risks of using them to further their interests, we could adopt a novel approach based
in reimagining the notion of vicarious liability and hold the company liable for the damages caused
by the autonomous objects in the performance of their duties.
22
There is not a tort of strict liability for the harmful consequences of hazardous material used in the
enterprise, and there is no specific regime in the CCQ. There was a failed attempt in Canadian
common law to stretch the thinking of Rylands to create a strict liability tort for ultra-hazardous
activities (Smith v. Inco), but it failed showing that the courts interpret its scope in a very narrowly
way (the court held that “there are no doubt strong arguments for imposing strict liability on
certain inherently dangerous activities, in our view, however, that is fundamentally a policy
decision that is best introduced by legislative action and not judicial fiat”). It also appears that,
although the innovative and flexible interpretation of art 1054 of the CcLC, Quebec civil law would
not take that path in interpreting art. 1465 CCQ. Indeed, judges in Quebec refuse to develop new
regimes of strict liability as their desire is that the civil liability regime of the CCQ serves as
mechanism of corrective justice rather than an efficient compensatory mechanism (Brierly &
MacDonald).
II.1.4 NUISANCE / LES TROUBLES DE VOISINAGE (PROTECTING NEIGHBOURLY
PEACE AND ENJOYMENT OF PROPERTY)
This tort is distinct from the tort of negligence. It refers to the abuse of rights in the context of
neighbours (“troubles de voisinage”) and serves to limit the use of property. Nuisance consists in
the unreasonable interference with the use of the land.
There is a tension between the interests of the plaintiff and the defendant. Each one must suffer a
level of inconvenience. The objective is to strike a balance in the interests of the neighbours.
What elements must be established for a successful claim in nuisance / les troubles de
voisinage?
In an action in nuisance or abuse of rights in the context of neighbours, the elements that the
plaintiff must show in his complaint is a behaviour that goes beyond a reasonable activity to be
tolerated. However, the plaintiff could not be characterized as a particular sensitive individual: the
interference must be intolerable to an ordinary person. The complaint must be reasonable, that is,
the activity should exceed what other neighbours are expected to put up with (trivial annoyances
do not fall within the notion of nuisance). The abnormal disturbance triggers liability under the
tort of nuisance. The plaintiff would have to call other neighbours to provide a testimony regarding
the unreasonable activity.
Does a theory of “risk” rather than of “fault” ground the law of nuisance? What can the
defendant argue?
The defendant will not be able to successfully argue and persuade the court that he acted with
reasonable care (that is, that he was not at fault) as the tort of nuisance is a non-fault regime both
in Canadian common law (Drysdale v Dugas) and in Quebec civil law where there is a selfstanding clause that establishes a limit prohibiting owners of land from forcing their neighbours to
suffer abnormal or excessive annoyances (art 976 CCQ; St Lawrence Cement Inc v Barrette).
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The defendant cannot say that he came first because the fact that a particular activity has been
going on and nobody has complained of before provides no defence to the defendant (Miller v
Jackson). In this case, Lane J stated that “it is no answer to a claim in nuisance for the Defendant
to show that the Plaintiff brought the trouble on his own head by building or coming to live in a
house so close to be the Defendant’s premises that he would inevitably be affected by the
Defendant’s activities, where no one has been affected previously”.
The defendant would not be able to assert that the activity was necessary either.
What remedies are appropriate in this context?
Injunction is the traditional remedy for nuisance as this is an ongoing activity that causes
unreasonable disturbances to the plaintiff; hence, it makes sense that right remedy is to stop the
activity that causes harm. It is possible to delay the injunction in order to allow the defendant to
adjust its activity. Damages for loss are also a remedy.
Is it convincing to argue that the private law of nuisance might be an effective tool in cleaning
up the environment? What limits or drawbacks might be associated with relying on the tort
of nuisance (or troubles de voisinage) to clean up the environment?
There is a distinction between private nuisance and public nuisance. Private nuisance is any
unlawful interference with a person’s use or enjoyment of land, by physical damage to the property
and/or non-physical convenience (noises, smells). It must be substantial and unreasonable. Public
nuisance is a crime (not a tort) aimed at protecting the rights of members of the public.
Nuisance could be used as a tool to prevent polluting activities; however, there are difficulties. For
example, the judge will take into account the nature of the neighbourhood. It could also require
that the plaintiff show a proprietary interest in the land in order to sue in nuisance.
It is also possible that a legislation eliminates the possibility of bringing claims based on nuisance.
What is the structural or conceptual issue at stake that the Supreme Court grapples with in
St. Lawrence Cement? What does it mean to focus on the result of activities rather than on
conduct? What sources, traditions and systems find their way into the judgment?
In St Lawrence Cement Inc v Barrette, the issue that the Court grappled with was whether liability
related to neighbourhood disturbances in Quebec civil law was necessarily based on fault, or if it
was a no-fault liability scheme (in which the extent of the annoyances was more important than
the conduct). They indicated that in the case of neighbourhood, the notion of civil fault may be
related to the abusive exercise of a right or to the use of property. Regarding the abuse of rights
(art 7 CCQ), they said that when a person abuses his right is committing a fault in the exercise of
that right (acting wrongfully). However, when they analyzed art 976 CCQ they confirmed that
conduct is not the deciding criterion. For example, an owner who causes abnormal annoyances,
but without intent to injure, or without an excessive and unreasonable conduct, cannot be said to
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be abusing his rights because he cannot be found at fault. At the same time, an owner who is at
fault may be held liable even though the damage did not reach the level of abnormal annoyance.
It was therefore noted that in Quebec civil law actions based on excessive annoyances do not
require to show fault (for example, Drysdale v Dugas where the fact that the defendant proved
care and caution in operating his stable did not exempt him from liability). It was also said that art
976 CCQ is located in the provisions concerning property where owners can be found liable even
though they have not committed any fault. Furthermore, the wording of art 976 CCQ does not
require evidence of wrongful conduct to establish liability of an owner who has caused excessive
neighbourhood annoyances. It limits the result of the owner’s act rather than the owner’s conduct.
To support its finding, the Court made a comparative review of Canadian common law and French
civil law cases and took into account general policy considerations (no-fault liability furthers
environmental protection objectives).
II.1.4 PRODUCTS LIABILITY
Product liability receives special attention because of the importance of consumer protection. The
idea is that the consumers can trust the safety of the products.
Private law has developed shared principles in this area in two ways: (1) Defining the reasonable
behaviour of the manufacturers that incorporate relevant concerns of the consumers, or (2)
Replacing a negligence regime with strict liability.
Manufacturers, distributors, and suppliers of products can be held liable for the harm caused by
the products they introduce into the market on the basis that it is fair that those who introduce risks
to their profit into the society, by way of an enterprise, should accrue both the benefits and the
costs of damages, and also because enterprises are often in a better position to bear the cost of the
injuries (Keating).
This is also supported by the theory of general deterrence proposed by Cane in the sense that the
cost of the accident should be borne by the person who can most cheaply avoid accidents of this
type in the future.
There are different approaches to products liability depending on the legal systems: (1) Focusing
on the “obligation of security” (and the law is developed on that basis), (2) Product liability as “sui
generis” (as a third type of liability that doesn’t fit neatly into contractual or extracontractual
obligations), (3) Special regime (like the EU Directive), and (4) Distinguishes the avenue to resort
to by looking at the contract in different legal provisions (as the CCQ).
The basis for products liability can be: (1) Fault or negligent based (where the plaintiff needs to
prove the defendant’s fault by negligence), (2) Presumption of fault, and (3) Strict liability.
(1) In a fault-based regime, the fault can occur with the design of the product, the materials,
manufacturing process, bad instructions for use and warnings. The challenge is the asymmetry
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of information (plaintiff knows nothing about the product and the defendant knows
everything) and complexity of the products (e.g., pharmaceuticals and electronic devices).
In Canadian common law, it applies the tort of negligence with the duty to warn about the
risks. Therefore, a claim of defective product could be made under Donoghue v. Stevenson
(where it was established that a manufacturer of products owes a duty of care to the consumer
with respect to the products when he intends to reach the ultimate consumer, and there is no
reasonable possibility of intermediate examination) and the legal rule of Lambert v. Lastoplex
(which establishes a duty to warn the risks of the manufactured products that carry danger:
they must bear an explicit warning depending on the degree of danger to be caused if it is not
used as it should, otherwise it is unreasonable – this duty is relevant in medical/pharma cases).
In Quebec civil law, the non-purchasing victim can sue the manufacturer under the general
obligation to avoid injuring others (art 1457 CCQ) is not limited to existence or not of
contractual relationship between the manufacturer and consumer. However, if there is a
contractual relationship, i.e., the victim is the buyer, he must bring a claim under the
contractual framework (art 1458 CCQ). Unlike Quebec civil law, in Canadian common law
there is no mandatory rule imposing the victim to opt between contractual or extracontractual
avenues. In USA is even a third avenue to seek for compensation.
(2) In a presumption-of-fault regime, the plaintiff does not have to prove the fault of the defendant,
and in order to bring a response to the asymmetry of information and complexities, it will be
the defendant proves that acted reasonably or was not at fault.
In Quebec civil law, product liability may be situated by the act of a thing governed under art
1465 CCQ. It should not be a reason why it could be not situated there, however, under art
1465 CCQ you also have to show that there is some control of the thing from the defendant,
and it would be unusual to be able to argue that the manufacturer was still in control or was
the custodian of the good since it would have long left the manufacturer’s hands, so it is no
appropriate or useful to use this provision to seek compensation.
(3) In a strict-liability regime, the defendant cannot avoid liability even by showing that acted
they reasonably (i.e., without fault). Josserand tries to justify this approach (risk-theory)
especially for industrial products.
The rationales for strict liability are: (1) Facilitating compensation (by identifying the dangers,
determining who is in the best position to absorb the costs, i.e., the ones with the deepest
pockets, who will incorporate them in the price and redistribute them), (2) Deterrence (with
strict liability manufacturers will act more carefully, go beyond merely being reasonable and
make their products as safe as possible), (3) Asymmetry of information (plaintiff does not
need to prove how the manufacturer negligently put these dangerous goods in the market), (4)
Protection of consumer expectations regarding safety of products (consumers expect that
products are not going to cause harm if used properly), and (5) Cost internalization: the costs
of products should reflect the risks associated with them.
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The purpose of the strict-liability regime is to make it easier for the plaintiff to get a
compensation as it makes it easier for the plaintiff to succeed because what they have to show
is less difficult for them to prove and because the ways of escaping liability are reduced for
the defendant. It is a question of balance for the parties and what they have to prove to receive
compensation and what you can say to avoid liability. It could be a fault on the part of the
manufacturer, but it is not relevant for obtaining a successful claim.
In the US there is a strict liability of manufacturers for defective products (Greenman v Yuba
Power Products).
Another example of a strict liability regime is the EU Directive which establishes that a
producer is liable for a defect in his product. Defective product is one that does not provide
safety according to the consumer expectations regarding its safety (art 6 EU Directive).
In Quebec civil law, the manufacturer, the supplier and the distributor of a movable thing are
liable for damage caused to another by reason of a safety defect in the thing, like for example,
the lack of sufficient indications (arts 1468, 1469 CCQ). They can be exempted from liability
arising by proving that the victim knew or could have known of the defect, or could have
foreseen the injury, or by way of proving that according to the state of knowledge at the time
that he manufactured, distributed or supplied the thing, the existence of the defect could not
have been known, and that he was not neglectful of his duty to provide information when he
became aware of the defect (art 1473 CCQ).
EU directive inspired the drafting of art 1468 CCQ that also mentions “safety defect”. This
idea of defect is important, for instance, a knife that might cut is not a safety defect, because
a knife is specifically designed to cut. Defective product refers to safety defect as to the design,
manufacturing, or indications of risks and dangers (art 1469 CCQ).
Under a strict-liability regime, such as in US, EU and Quebec law, the plaintiff does not have
to show fault of then part of the manufacturer. The plaintiff has to show that the product is
defective and that the defect caused the injury (it is not sufficient to show that the plaintiff was
injured by the product). Liability is grounded in the existence of a safety defect.
The defence under strict liability is the “development risks” by which the manufacturer must
show that the risk associated was unknown at the time the product was put onto the market,
nobody knew it could have given to that particular risk that materialize (art 1473 CCQ; art
7(e) EU Directive). This defence does not transform the strict-liability regime of product
liability into a presumption-of-fault regime because the plaintiff still has to show that a defect
caused injury, not negligence on the part of the manufacturer.
According to Van Gerven, the EU Directive is an initiative to create a unified product liability
scheme which has potentials and possible problems. It introduces strict liability (no-fault liability)
for defective products with some restrictions (not applicable to primary agricultural products, fame
and immovable property). It also sets out various defences that the producer can raise in order for
him to not being held liable, and the most controversial is the “state of the art” or “development
risk” defence that implies that the manufacturer may be excused from liability through a defence
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of the state of the knowledge at the time their product was manufactured. Finally, this Directive is
a reflection of common trends and principles in the legal systems of the member of the European
Union: most countries were tracing responsibility back to the producer on strict liability grounds.
It also shows a choice in using tort rather than contract law.
As seen, European initiative is also reflected in art 1473 CCQ, and the same critique could be done
to the former one: that a strict application of product liability may hinder innovation, so it makes
sense to recognize certain defences to the manufacturer, like the defence of the “state of the art”
or “development risk” guided by the desire of fostering innovation within society. However, if we
were to impose the cost of the injuries caused by defective products on the innocent consumers,
this can also give rise to a conflict with the notion of fairness incorporated in the private law of
civil wrongs (Keating).
III.
LIABILITY FOR INTENTIONAL PERSONAL WRONGDOING / VIOLATION
OF INDIVIDUAL INTERESTS (PROTECTION OF BODILY INTEGRITY)
In both Quebec civil law and Canadian common law, the protected interests of the individual
include bodily integrity, dignity, self-determination, and autonomy. The only element that a
plaintiff needs to show is that there was an intentional touching or contact that constitutes
interference. No harm, particular injury, or feeling that one was bothered is required: the
interference of one’s body is the harm itself. The defence available for the defendant is to show
that the plaintiff provided his consent (but it requires the plaintiff be competent to provide consent
and it should not be given under coercion). The plaintiff can refuse to provide consent. The
defendant can get around that by showing that there was an exception applicable. A broad
exception is when we bump with other people on close spaces in everyday life and that is not
usually considered an unlawful interference, however, it does not mean that the person impliedly
consented to that bumping.
In the particular case of vaccines, a person can provide his consent or refuse to get vaccinated, but
if later on the refusal gives rise to harm to others that person can be held liable for breaching the
general duty of care (art. 1457 CCQ; Donoghue).
In Quebec civil law, there must be a breach under art 1457 CCQ that establishes the general duty
of care and covers both intentional wrongdoing carelessness. Every person is inviolable and is
entitled to the integrity of his person, and no one can interfere with his person without his or her
free and enlightened consent (art. 10 CCQ). Furthermore, every human being has the right to
inviolability (art. 1 Charter of human rights and freedoms of Quebec). For the breach of integrity
to be claimed, there is no need to prove any intentional fault on the part of the wrongdoer for hold
him liable, but there must be necessary to show that it was an unreasonable fault.
In Canadian common law, the tort of “battery” protects the interest in bodily integrity from
unwanted physical interference based on the right of a person to control his or her own body. A
person is entitled to the right of self-determination, and he or she has the freedom to waive this
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protection. The only exception to the right of self-determination is an “emergency situation” in
which the doctor may proceed without the patient’s consent but if according to the circumstances
the doctor was aware for prior instructions given by the patient those must be followed (Malette).
Unlike the Quebec civil law, in the Canadian common law in the tort of battery there must be an
intentional fault on the part of the wrongdoer.
WINTER 2021
IV.
PROTECTED INTERESTS (CONT´D), INJURY AND DAMAGES
Injury and damages (Restitutio in integrum)
Injury, or “damage” or “harm”, is a sine qua non in civil liability. The plaintiff can complain only
if a harm has been suffered.
There is a whole spectrum from which we can name the injury suffered by a person: injury,
damage, prejudice, dommage.
What kinds of interests seem to be protected through civil liability?
The private law of civil law finds bodily and property damages easily to find out.
How are they reflected in categories of awarded damages? That is, what gets compensated and
how are damages determined in general?
In Quebec civil law there is no reason to differentiate between the different types of damages (art
1457 CCQ) – All the damages are recognized and are compensable.
What are the implications of putting people back in the position they would have been had the
injury not occurred? Is it appropriate to rely on generalized information or predictions? Are there
alternative ways to think about how to measure injury and quantify damages?
We cannot put back a person in the same situation he was before the injury occurred. We want to
pay damages (compensation) with the intention to put the person in the situation he was had the
accident never happened. In Quebec civil law this applies in the same way even for moral
injuries.
Moral, extra-patrimonial, and non-pecuniary, moral, and general damages refer to the same
concept.
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In Ouellete, the Court of Appeal found that the trial judge made some errors in approaching the
damages. As to the “head of damages” listed, the second (“pertes de capacite”) and the third
(“pertes non pecuniaires”) are the trickiest ones.
ITT is total incapacity, whereas IPP is partial incapacity.
V.
ESTABLISHING A FACTUAL CAUSAL LINK
Approaches to Assessing a Factual Link
Inherent Uncertainty in the Connection
Inherent Uncertainty in Identifying the Wrongdoer
Mass Torts
VI.
DELINEATING THE SCOPE OF RESPONSIBILITY – ACCORDING TO
RELATIONSHIP
(DEFENDANT-PLAINTIFF)
AND/OR
CONNECTION
(WRONG-INJURY)
Introduction to “Duty of Care” and its Counterpart, “Causation in Law”
The Concept of the “Duty of Care”
In Home Office v Dorset Yacht the House of Lords adopted the view that all discretionary decisions
of government are immune, unless they are irrational.
Acts and Omissions: Good Samaritan / Duty to Rescue
Civil Liability of the State
In R v Imperial Tobacco, the Court held that policy decisions are a subset of discretionary decisions
that are based on public policy considerations, like economic, social and political considerations,
which are always discretionary (they’re discretionary in the sense that a different policy could’ve
been chosen). Those policy decisions related to economic, social and political matters are “core
policy” government decisions which are protected from private liability as long as they are neither
irrational nor taken in bad faith.
Approaches to Relational Loss: Secondary Victims, Limits based on Ricochet
Economic Loss: Relational and / or Remote?
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