Chapter 5 - Defences Against Extra Contractual Liability In Quebec Flashcards
(36 cards)
In which circumstance is the defence of a person prohibited?
Under gross fault
Which CCQ article excludes gross fault?
CCQ Article 1474
Define onus of proof
The duty of a person to provide proof to the court on a case in question
Define presumption of fault
Defendants must exonerate themselves by denying that they committed a fault or by showing that the victim was at fault
What does CCQ Article 1459 outline in regards to tutors?
The tutor must prove they did not commit any fault in the custody, supervision or education of a minor
What does CCQ Article 1463 state in regards to employees and agents?
Principals may retain right to pursue the agent or employee for any wrongdoing
Which two articles outline the act of a thing?
1466 (animal) and 1467 (lack of repair or defect from construction)
Outline the seven (7) eligible defences
Denial Not Endowed with Reason Superior Force Voluntary Assumption of Risk Contributory Negligence of the Victim Defences for a Good Samaritan Defences for Manufacturers and Distributors of Products
For the denial defence to be utilized, any of the following three must be proven:
Denial of fault: no fault on part of defendant
Denial of injury: no injury suffered by the plaintiff
Denial of causal link: no causal link between fault and injury
Explain the Not Endowed with Reason defence
A person must be endowed with reason (ie. not mentally challenged) to be find liable for an act.
What is force majeure?
Superior force
Explain the Superior Force defence
If an event is an irresistible force, unforeseen event, an overpowering force or an accident which human prudence can neither foresee nor prevent.
This is often due to fires or other acts of god.
Explain Voluntary Assumption of Risk
Not a complete defence, however this could apply if the victim imprudently accepts the risk of an activity
What would be the use of a disclaimer?
It works to display that the victim was aware of any sort of limitation that may have been in place for the contract.
What does CCQ Article 1476 indicate about a notice?
You may not exclude or limit obligation to make reparation, however you may utilize it to warn of a danger.
Explain Contributory Negligence of the Victim
This could apply if several persons are involved with the injury of the victim. Liability is shared proportionate to their responsibility.
Explain the Defences for a Good Samaritan
The standard of care is softened due to the positive duty created by the Charter of Human Rights and Freedoms. As long as one can show their act was not intentionally harmful or grossly at fault, this could be a successful defence.
Explain the Defences for Manufacturers and Distributors of Products
The law ensures that manufacturers must value the safety of their consumer.
Both the seller and manufacturer are liable to their consumers.
Three major subcategories include apparent defects, labelling must be adequate and safety defects.
What is an apparent defect?
It can be perceived by a prudent or diligent buyer without the help of an expert.
What three defences may a manufacturer use in regards to an safety defect?
- The manufacturer could only have known the state of knowledge regarding the product in existence at that time
- The claimant could have known about the defect and should have known its risks
- The manufacturer made available all the proper information about the shortcomings of the product
Which four parties can extra-contractual liability be assessed against in Quebec?
Manufacturer, distributor, wholesaler or retailer
Is ignorance a defence for manufacturers?
No
What does the Consumer Protection Act set out?
How action can be taken by injured parties when no contract existed between them and the manufacturer if a product is defective.
How long of a time period does one have to apply for additional damages?
Three years, typically
