La loi vos droits

Other Infosheets - Civil Responsibility in Quebec

Extra-Contractual Responsibility

What an awful day! First the neighbour’s dog bit you on the wrist while you were on your way to work. You didn’t plan on a trip to the hospital for a shot and stitches, not to mention the pain in your wrist.

After an unproductive day, you went to the post office to pick up a registered letter. It was a letter from your mailman saying he would sue you unless you paid him $1,000 for the back injury he suffered slipping on your icy walkway. Then you remembered he left you two messages a few weeks ago that you didn’t have time to answer.

Worn out, you slumped onto your couch with your crumpled envelope and aching wrist. You tried to focus your thoughts on some important issues: how to go after the owner of the dog, and how to defend yourself against the mailman’s claim if he really decided to sue you.

In this Infosheet, Éducaloi explains the basic principles of extra-contractual responsibility.

What is extra-contractual responsibility?

According to the law, everyone has a duty not to harm others. People who do not fulfill this duty and end up harming others must repair the damage. This is called “civil responsibility”.

There are two kinds of civil responsibility: responsibility when there is a contract between the people involved (contractual responsibility)  (http://www.educaloi.qc.ca/en/loi/other_infosheets/132/) and responsibility when there is no contract between the people involved (extra-contractual responsibility).

For example, a person who breaks a window in your house playing baseball in his backyard usually has to pay to repair it. Likewise, the owner of a dog that bites and injures you may have to pay for your medications and lost salary if you miss several days of work.

Note that only people “endowed with reason” can be held responsible for harm caused extra-contractually. Normally a person is considered to be endowed with reason at age 7, but it can vary from person to person.

When can I be held responsible?

Imagine the following situation: René’s back is hurting and he thinks his neighbour Jocelyne is responsible: she did not warn him that the ladder he borrowed from her was broken, and he fell from the fifth rung. He wants to sue her.

For a judge to find that Joceylne is responsible for René’s sore back, René must prove three things:

• Jocelyne was at fault. (She lent a dangerous ladder.) See the question “What is fault?”.
  
• He suffered damage. (His sore back.) See the question “What are damages?”.
  
• There is a direct connection between Jocelyn’s fault (lending a dangerous ladder) and the damage René suffered (his sore back). See the question “How do you prove there is a connection between the fault committed and the damages suffered?”.

To show she is not responsible for René’s sore back, Jocelyne must prove exactly the opposite: she was not at fault, René did not suffer damages (or the amount of money he is asking for is exaggerated or there has been no proof made of the amount), or there is no connection between her fault and the damages suffered by René.

What is fault?

Fault can take the form doing something or failing to do something (also called an omission).

For example, a judge might decide that a dentist was at fault if:

• the dentist made a mistake in treating a patient and the patient suffered needlessly as a result (= fault through an action), or
  
• the dentist forgot to mention alternative treatments that are just as effective but less painful and the patient suffered needlessly (= fault through omission).

To find there was fault, the action or omission must be contrary to what a reasonable person in the same situation would have done.

What is a reasonable person? It’s an average person acting carefully and diligently. (Diligently means showing steady effort or without wasting time.)

To compare the conduct of a person against that of the “reasonable person”, certain factors are taken into consideration:

• Professional Skills
  
  For example, a person babysitting a child who is injured will definitely not react the same way as a doctor on the scene would react. To determine if the babysitter committed a fault when the child got hurt, the babysitter’s conduct must be compared to the conduct of a reasonable babysitter in the same situation, and not to the conduct of a reasonable doctor.
  
  
  
• Age
  
  A 10-year-old child does not exercise judgment the same way as a 30-year-old in the same situation. The conduct of the 10-year-old would therefore be compared to that of a child of the same age.
  
  
  
• Surrounding Circumstances
  
  A person in an emergency or a situation that calls for immediate action might not react as carefully as in normal circumstances.
  
  Let’s say that Samuel is in a burning house. He has to act quickly, and damages the garage door as he leaves the house. If he is sued for this damage, his conduct would have to be compared with that of a reasonable person placed in the same emergency situation, and not with the conduct of a person sitting calmly in his living room!

How do you prove someone was at fault?

To prove fault, it must be shown that a careful and reasonable person, placed in the same situation, would have acted differently.

On the other hand, to prove there was no fault, it must be shown that a reasonable person, placed in the same situation, would have acted the same way.

If it is obvious there was fault, the judge will rely on her own common sense to find fault. For example, a judge can easily conclude that hitting someone because that person was wearing the sweater of the opposing team is not the conduct of a reasonable person!

In more complicated or less obvious cases, testimony must be used to prove fault. For example, Aline wants to prove that her doctor was at fault. She can ask Jacques, another doctor, to testify as an expert. To convince the judge that Aline’s doctor committed a fault, Jacques can explain that he would have acted differently or that Aline’s doctor did not follow the standard practices of the medical profession.

Can several people be found responsible at the same time?

Yes.

Let’s say that Élise hires a plumber and electrician to renovate her bathroom. The plumber makes a mistake and breaks a pipe full of water. The water sprays in the direction of lights being installed by the electrician. Since the electrician was supposed to shut off the power but failed to do so, a big short circuit breaks the electrical circuit to this part of the house. Élise must spend $1,000 to fix the problem. But who does Élise sue if both were at fault?

• If it is impossible to know who caused each part of the damage, the two men will each be responsible for all of the damage. This means Élise can take legal action against either for all the damages (payment of the $1,000).
  
  The one who is sued can then either reach an agreement with - or take legal action against - the other man to be reimbursed half the total (=$500). This is called “solidary responsibility”.
  
  
• On the other hand, when it is possible to determine that the plumber was responsible for 40% of the damage and the electrician 60%, each must pay for the damage in those proportions. This means the plumber must pay $400 and the electrician $600.

Can I be held responsible for someone else’s fault?

Yes. Some people can be held responsible for a fault committed by someone else under their authority or something under their control, even if they did not directly commit a fault.

A parent or tutor may have to repair the damage caused by a minor child under his authority. Even a parent who has lost parental authority  (http://www.educaloi.qc.ca/en/loi/parents/151/) over a child may be responsible in some situations.

Teachers, supervisors and custodians who have temporary responsibility for minors may be responsible for repairing damage caused by these minors.

A person who has the authority to control, supervise and direct others (employees, volunteers, etc.) may be responsible for repairing damage caused by these people when they are carrying out their duties.

Owners and custodians of animals may be responsible for damage caused by these animals.

The owner of a building or land may be responsible for repairing damage caused by the deterioration of the building or land.


To find out more, consult these Infosheets:

Parental Responsibility for Minor Children  (http://www.educaloi.qc.ca/en/loi/other_infosheets /126/)

Teachers, Supervisors and Custodians: Their Legal Responsibility Regarding Children  (http://www.educaloi.qc.ca/en/loi/other_infosheets/125/)

An Employer’s Responsibility for Acts of Employees  (http://www.educaloi.qc.ca/en/loi/other_infosheets/131/)

Responsibility for Animals.  (http://www.educaloi.qc.ca/en/loi/other_infosheets/130/)

How do you prove there is a connection between a fault and the damages?

For a person to be held responsible, the damage suffered must be the direct result of the fault.

To prove this connection exists, it must be shown that the damage would not have occurred without the fault. Often this connection is obvious, so it is not necessary to prove it. For example, it is obvious that if a swimming pool had been supervised and protected by a proper fence, a young child would not have fallen into the pool.

However, sometimes it is difficult to prove this connection, especially if the damage appeared long after the fault, or if several events occurred between the time the fault was committed and the damage appeared.

For example, Ludovic fell on the slippery floor of a shopping centre. The centre’s employees failed to post signs warning the floor was slippery. Later, Ludovic had a car accident and hurt his legs. Also, for several years he has had chronic knee pain. If Ludovic sues the shopping centre for his knee pain, it will be difficult to prove that there is a direct connection with the fault of the shopping centre employees.

What are damages?

Damages can be personal or monetary.

Personal Damages

This type of damages relates to the injury suffered by the person himself. It is divided into two sub-categories:

• bodily injury (damage to a person’s body)
  
• moral damages (mental and emotional suffering)
  
  Here are some examples of personal damages:
  
  
  • violation of a person’s honour
    
  • violation of dignity
    
  • damage to reputation
    
  • violation of privacy
  
  Monetary Damages
  
  The law calls these “material damages”. Here are some examples:
  
  
  • destruction or damage to property
    
  • loss of profits of a business
    
  • loss of the services of an employee
    
  • salary and benefits lost because of inability to work
    
  • loss of value in a home
  
  Personal and monetary damages can be connected: for example, physical injuries can lead to monetary or moral damages.
  
  For example, Thomas broke his hip because of André’s fault. He had to have an operation and was in the hospital several weeks. Thomas can ask that André compensate him for all the damages he suffered:
  
  
  • his personal damages (the hip fracture, suffering and the stress of having an operation)
    
  • his monetary damages (medical costs and his loss of income as a result of missing work for several weeks)
  
  To learn more about the various types of damages, how to evaluate damages in terms of money and how to prove them, consult our Infosheet Damages  (http://www.educaloi.qc.ca/en/loi/other_infosheets/428/).
  
  
  
  

  Is there a time limit for taking legal action against someone for civil responsibility?

  Yes. Anyone who suffers damages must take action against the person she thinks is responsible within the time limits established by law. This time limit is called “prescription”. If the time limit is missed, the right to compensation is lost.
  
  A person who wants to take legal action for monetary or personal damages must generally take action
  
  
  • within 3 months of the time the fault was committed, or
    
  • if the damages appear later on, within 3 years from the time the damages first appear.
  
  But there are several exceptions and special rules. To find out more, consult our Infosheet Prescription  (http://www.educaloi.qc.ca/en/loi/other_infosheets/431/).