1

Advanced Civil Law Obligations

Prof: Khoury
-email: lara.khoury@mcgill.ca
-phone: 398-6610
-Purpose of this course: Depend our knowledge of the law as it pertains to the CVL.

Introduction and the Civil Law Tradition:

-What is an obligation? Relationship between a debtor and a creditor around a prestation:
the prestation is owed by the debtor to the creditor.
-This does not necessarily involve a K: obligations can exist between individuals that
have never even met before.
-Civil law: 3 spheres of obligations:
1. Contractual obligations
2. Extra-K obligations
3. Unjust enrichment (quasi-contractual obligations)
-Areas of the law that remain in private law but that are not within the law of obligations:
property, commercial law, family law

History of CVL
M.A. Glendon, M.W. Gordon & C. Osakwe, Comparative Legal Traditions in a Nutshell (St. Paul,
Minn.: West Publishing, 1982) at 13-51.
History of the CVL: from ancient Rome to modern times:
Roman law: birth, decline, survival and influence on customary law
Revival of Roman law in Bologna and spread, emergence of jus commune
Nationalization of civil law: French Code 1804, German Code 1896, and the ideology behind it,
structures, concerns etc.
Influence of the above, particularly after decolonisation: adoption or inspiration
Modern civil law jurisdictions: reforms, legislations outside codes, influence of other systems.
Quest-ce quun code civil: discours prliminaire sur le projet de code civil franais prononc par
Portalis in Naissance du code civil: la raison du lgislateur (Paris: Flammarion, 1989) (edited).
-Arguments why the Code need remain vague: cannot plan out all possible realities, events, interests,
situations etc. Therefore better to provide general statements/principles, and let the laws work themselves
out more specifically over time.

1) What is civil law?

2) Origins of the civil law:
Roman law
Jus commune
The development of national laws and the codification
3) Modern Civil law
Code Napoleon / BGB (German Code)
CCLC

CCQ

1) What is the CVL: Will focus on a):

a) System of Romano-Germanic Origins: in effect in Quebec, Louisiana, South
America, parts of Africa and Asia, it is a mix of Roman, Germanic, Feudal,
Commercial and customary law. Developed mainly in continental Europe. In
opposition to CML.
b) Jus Civile: body of law in Rome that distinguished the law of Rome and the law
in effect elsewhere in the Empire.
c) Sector of Private law: Within private law, an area of the law that governs the
relationship between individuals, between intl private law and commercial law. In
contrast with public law.
2) Origins of the CVL:
Roman law: Influence remains noticeable to this day
i. Start date: drafting of the first codes: 450 BC: 12 Tables, start of
influential Roman law.
ii. Organization:
1. Praetor: control access to the Iudex: patricians that
formulated the cases the Iudex had to hear, decided which
cases were deserving of the attention of the Iudex,
2. Iudex: men who decided disputes, the equivalent of
modern judges. Note that they were not professional
judges, came from the patrician group, their charge was
voluntary, they had no legal training and no real serious
knowledge of the law. Access to them was not granted to
everyone
3. There were NO professional judges, no formal legislation.
4. 3rd c. BC: new class of men became experts before the
courts: juris-consult: the advised the Iudex, wrote books of
law for references. Again this was voluntary (done for
prestige). Their work really represents the birth of Roman
law as a sophisticated body of law (systematic system of
written law is born)
iii. Fall of Rome (+/- 496 AD): Justinian Compilation: Corpus Juris
Civilis or the Compendium: 533 AD: compilation of the works of
the juris-consult according to subjects, it is characterized by a lack
of organization, there was no effort at generalizing the rules of law.
1. Main part of the compendium: the Digest: selection of
opinions of the juris, selective incorporation of the
documents.
iv. Law is transported all over Europe,
v. Disappears during the Middle Ages, but is reborn in 11th-13th
century
Jus commune: rebirth and creation of first European universities = the
Glossators and the Ius commune, 11th-13th c.

i. Attempts to reconstruct and interpret the Roman text by students

called the Glossators: when they left university, they occupied
influential positions in society, and accordingly their work became
the basis of European Continental Law
ii. Creation of a kind of common law of Europe: Jus Commune,
written law applicable over a vast territory
The development of national laws and the codification: Civil Codes of
France and Germany (note the influence of customary local law in the
drafting of these codes):
i. Code Napoleon (1804): follows the framework of the Justinian
code, but constitutes a more significant attempt at systemizing the
text and concepts (model for CCLC, CCQ, Holland).
ii. Burgerliches Gesetzbuch (1896): while from the same sources +/(Roman law, Jus Commune), it is very different from the Code
Napoleon (model for Greek Code)
iii. CCLC: 1866: influenced by Code Napoleon, also by Coutume de
Paris, also Dutch and CML; meant to protect French tradition in
Lower Canada, tool to protect French law from influence of CML
in effect in the rest of Canada:
1. NOTE: Proclamation Royale 1763: change from French
law to English Common law, resistance by local population
2. Quebec Act 1774: restoration of French law
3. 1840: Union Act protects French law
4. 1866: CCLC
5. 1980: first CCQ adopted, really a reform dealing with
family law
6. 1989: same section as above reformed
7. 1991: modern CCQ adopted, 1994 comes into effect

-Thus CCQ reforms started in the 1980s during which the section of family law was
reformed. Rest was eventually reformed and the CCQ was adopted in 1991. It came into
force in 1994.

What makes the CVL different, what makes it unique?

1)
2)
3)
4)

Aims of Civil Code and more particularly that of the Code Napoleon
Style of the Civil Code
Role of civilian judge
The Common Private Law of Quebec? Code as basis or foundation of all other
statutes in Quebec: interpretation issues, preference issue

1) The Aims of the Civil Code

-Drafting of French civil code was preceded by French revolution. Thus written in the context of
flowing ideas about reforming society.
-Aim of codifiers in France was to make law accessible to all; this explains the style of the French
civil code.

4
-Content of the code: greatly influenced by values that were prioritised after Fr rev.
-Values in Fr code:
Individual autonomy: autonomy of the will theory
Economic liberalism translated in contractual liberty
Granting of private property
Dominant political philosophy was individualism. The will of the individual played the most
prominent role.
-Example from EX-K: main approach in the individualist/moralist approach
-Example from Ks: requirement of individual consent; this is linked to contractual liberty:
individuals party of a K can do anything as long as they are not breaching public order.
-These values have also influenced the style of the code: Fr civil code is written in a way that
makes it accessible to everyone: democratization of the law, no need of authoritative
interpretation, general language in the code

2) Style of the CCQ - Brierley

-According to Brierley, there are 2 main components to codification:
1. Fundamental unity in topics to be covered there is a central theme, and all rules centre
around that theme. Main theme is the relationships between people and relationships
between ppl and objects and things that they own, including transactions;
2. Coherent structural arrangement, expressed in a style that seeks to achieve formal
rationality. A code basically seeks to synthesise values and fundamental principles, and
organize them in a systematic and rational format.
-Kh says that these two characteristics probably characterize all civil codes.
-Main characteristic of Fr and Quebec civil code is generality. Style is also non-technical
[language of everyday life] and abstract [applicable to new situations].
Examples:
Code Napolon 1382: Tout fait quelconque de lhomme, qui cause a autrui dommage,
oblige celui par la faute duquel very general
CCLC 1053: Equivalent of the above. This article is more precise, because fault is
defined by reference to positive act, imprudence, neglect But, still, it is quite general.
CCQ 1457: more precise/explicit/detailed than the above two, but still very general in
scope
-Why the generality of the above? This was to make laws accessible, and because the codifiers
knew that they could not foresee everything. Portalis said that foreseeing everything was
impossible. Code leaves a lot of place for natural reason. Also wanted the code to be stable,
long-lasting and highly adaptable.
-Brierley and Portalis agree that an artfully drawn civil code may be better for what it leaves out
rather than what it specifically lays out.
-Ideas like good faith, equity, public order, abuse of rights are not defined because drafters
wanted these ideas to be flexible.
-BUT, there are exceptions to the above-mentioned generality, as there are articles in the CCQ
that are very specific: art 984 [precise requirements for K validity], 988.
-One also has to remember not to make general statements about the CVL, because there are
civilian jurisdictions that do not adopt a general style. An example is the German BGB, which
sets out a detailed system that tries to foresee every situation that might arise. Example of this:

BGB 823: Anyone who intentionally or negligently injures life, body, health, freedom,
ownership, or any other right of another in a manner contrary to law shall be obliged to
compensate the other for the loss arising.
-This is specific because it is an exhaustive list. Any other rights has been interpreted
restrictively.
-BGB as Professoren Recht: law of the professors

3) Role of Civilian Judge

-How will the code adapt itself to changing times?
The legislature is not the obvious choice, because its nature makes it difficult to react in
timely fashion.
The judge: a traditional civilian would say that adapting the code to meet changing
circumstances is not the judges role; it is not their role to change or create the law, but
rather simply to apply the law. But, a more modern perspective holds that judges do have
a role in filling voids in the code, and interpreting the code in a way that is consistent
with the time. This is perhaps even implied by the generality of the Code. But we should
not go as far as to say that judges change the law. Perhaps is it more appropriate to say
that the task of the judge is to complete the code; to create legal principles to fill voids
left by the legislator. Judge is not a slave to the law; he is there to apply reason, and study
the spirit of the law, not simply and necessarily apply the letter of the law.
-Brierley: The judge is a powerful person in the shaping of the law.
-Portalis would probably agree with the above: [P. 19 of casebook]: une foule de choses :
Portalis statement about the role of the judge v-a-v the generality of the Code.
-Best examples of what Portalis is talking about in law of Ex-Ks: the whole of the law of ExKs has been jurisprudentially created, as, for example, in the interpretation of another in art
1457 or again the flexibility of the reasonable person standard.
-A lot of the provisions in the CCQ were created by case law and then codified. Because the
principles are so general, judges have had to specify what exactly we mean by general words like
fault. Ex-Ks is the best example of jurisprudentially created law.

4) The Common Private Law of Quebec?

Preliminary provision of the C.c.Q.
The CCQ, in harmony with the Charter of human rights and freedoms and the general principles of law
governs persons, relations between persons, and property. (2) The CCQ comprises a body of rules which, in
all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by
implication. In these matters, the Code is the foundation of all other laws, although other laws may
complement the Code or make exceptions to it.
J.E.C. Brierley, The Renewal of Quebecs Distinct Legal Culture: The New Civil Code of Qubec
(1992) 42 U.T.L.J. 484.
First part: difficulty in revising a Civil Code: who is to draft, what language is to be used, what
level of continuity is to be allowed, are ideas from other jurisdiction to be borrowed etc. A heavy
endeavour indeed.
Second part:
o What is the concern of a civil code: man in the various phases of private life (in relation
to others, to things [property] and in relations to acts and transactions encountered while
living in society).
o What is achieved by codification: not the whole of private law, but a body of text that

6
influence the whole of private law. It is meaningful generality that aspires to
accommodate future facts in all their infinite diversity. Accordingly, a distinction must be
made between imperative rules [those of public order that must be obeyed] and suppletive
rules [those that are present unless otherwise excluded].
Third part: most interesting aspect of re-codification: break with the past, new code severs the
textually explicit referential links to the parent systems from which it derives, whether French or
English law. New code is meant to be a free-standing, autonomous regime. Yet remains open to
other bodies of law and recognizes that it is not the sole legal text thru the preliminary provision.
-Conclusion: Because it is expressed free of its historical contingencies, the Code vividly represents the
perceived self-image of Quebec society as distinct and, one may almost say, already sovereign. It is a new
expression for a society that believes itself to have come fully of age.

Dor v. Verdun (Ville), [1997] 2 S.C.R. 862.

Facts: Dor slips on ice in the wintertime in city of Verdun and breaks his leg. Wants to sue city for bodily
injury, but city argues that prescription period in Cities and Towns Act (15 days) prevents him from doing
so. Dor argues that CCQ allows 3 year prescription period.
Issue: Considering that the CCQ and the Cities and Towns Act seem to contradict each other, which is to
take precedent?
Held: Dor can sue, prescription period used is that of the CCQ.
Ratio:
-CCQ is jus commune of Quebec, the subjacent law that may be complemented by other pieces of
legislation, such as the Cities and Towns Act
-If CCQ is to limit the application of an act constituting a public body, it must express its intention in clear
and precise manner. Here it does so: as per art 2884 CCQ: No prescriptive period other than that provided
by law may be agreed upon. Therefore, article provides that prescriptive periods are of public order and
cannot be altered by agreement.
-The preliminary provision, legislative comments made when Parliament discussed enacting the code and
its various articles, and the Ministers Commentary all support the view that the CCQ should take
precedence over the Cities and Towns Act.
-Ultimately, conclusion is that art 2930 overrides principle set out in art 300.
Comment:
-Example of how the generality of the CCQ need/must necessarily result, in judicial interpretation. Also
example of CCQ as common law of Quebec.

-Note that art. 300 CCQ suggest in first paragraph that legal persons created in the public

interest are to be governed by the acts that create them. Nevertheless the CCQ is made
applicable to them in 300(2) and the CCQs complementary role does not preclude the
possibility that it may limit the application of the act creating the public body/legal
person created in the public interest (see also art 1376 that makes regulations about
obligations applicable to states, its bodies and other legal persons created in the public
interest)
J.E.C. Brierley, Quebecs Common Laws (Droits Communs): How Many are There?
-CCLC as legislated droit commun in the province of Quebec.
-CCLC as the principal legislative statement of the laws of a general and permanent character
-Why is Civil Code, a legislative enactment, considered the droit commun of Quebec, as opposed to other
legislative enactments [such as the CPA] that are not considered as such? Wherein lies the difference?
1) Scope of its regulation and language in which it is expressed, for the Code provides the first
elements and vocabulary of the law [what is a person, a K etc.]: it articulates the basic concepts
that are used and relied upon.
2) It is the fundamental reference point from which other legislation proceeds.
3) Many provisions are only of a suppletive character: they apply only in the absence of an intention
to exclude them.

7
-Note however that Civil Code as droit commun is not absolute: there is no entrenchment of its provisions
and other enactment can complement or derogate from the regimes of the Code.
Jean-Maurice Brisson, Le Code civil, droit commun?
-Le droit commun a 2 rles possibles :
1) Fournisse au besoin les solutions que les lois particulires nont pas prvues et quil constitue
donc un rservoir de rgles prtes trouver application lorsquon ny a pas fait chec.
2) Fournir linterprte des ressources conceptuelles pour appliquer les lois particulires.
-Cette double fonction, le CCLC ne la remplissait pas trs bien :
Il tait principalement un droit commun utilitaire, donc 1.
Visible par le fait que la plupart des lois adoptes suite 1866 lont t non pas pour tre
un prolongement du Code, mais plutt ont t adoptes contre le code (ex : Loi sur
lassurance automobile, crant un rgime sans faute)
-Le CCQ se veut et utilitaire et substantiel, donc 1) et 2).
-Pour redonner au Code civil une vocation plus tendue titre de droit commun, il fallait donc mettre le
code en accord avec les lois particulires qui staient dveloppes lextrieur de lui, comme en raction
lui.
-La fonction du Code consiste fournir au systme une armature laquelle les lois particulires puissent
sintgrer harmonieusement, bien quelles expriment des politiques lgislatives diffrentes de celles du
Code.
-Qualits objectives qui ont rhabiliter le Code dans sa fonction conceptuelle (2) :
Le Code nonce clairement dans presque toutes ses parties, des principes directeurs
Le Code tablit des liens de solidarit avec la Charte des droits et liberts de la personne. (Le
Code ne peut plus agir seul et doit collaborer avec la Charte. Non seulement fait-il ceci, mais de
plus il intgre et offre des droits et liberts plus pousses que ceux prsents dans la Charte)
En explicitant le principe de la primaut du Code, la disposition prliminaire permet linterprte
de tirer, de ce principe, toutes les consquences.

Brisson reading prompts the following questions:

Does the code form a common private law which constitutes the juridical foundation on
which specific statutory rules (e.g. CPA; divorce act) are or should be based in the
area of private?
Does the code constitute a body of law that should be applied by default when no other
specific statutes contradict it?
Whether the code provides principles on which statutory interpretation should be based?
-Yes, the Code informs the rest of private law, skeleton of the private law on which all other
statutes rest.

Arguments in favour of the above:

Brierley:
-In his first text, Brierley states that the code is the common law of Quebec, but specifies that it is
a legislative common law. He also argues that the code is a fundamental reference point in the
sense that all legislation should draw upon the provisions of the civil code.
-He further argues that the code provides for the most fundamental categories and concepts of
private law, since notions found in the civil code have permeated other statutes.
-Also says that the code enunciates principles that are relied upon in other enactments, which
when properly drafted, use the language and principles of the code. Because of this the code has
an influence outside its realm, it becomes the droit commun of Quebec.
-Brierley: since code is an expression of fundamental principles that transcend it, code itself must
be foundational. In this sense it is the fundamental reference point from which other

legislation proceed.
-thinks that Brisson would also agree.

-Brisson:
-Preliminary disposition of the CCQ mentions that code is common law of Quebec. This is
backed up by Gonthier in Dor v. Verdun where he accepts that code is the foundation of all
other laws.

Against the above belief that the CCQ is the Common law of Quebec:
-Civil code is not the only reference point for Quebec statutes; many are based on CML.
-There are specific statutes that have influenced the CCQ and not the other way around.
-There are a lot of arguments in Brissons article that go against Brierleys position:
CCQ is losing ground because of specific statutes that deal with private law, therefore
CCQ does not constitute whole of private law
A lot of private law is applied without reference to general principles of the code.
CCQ creates particular links with other statutes. For example, after 1991 reform, code
incorporated principles found in CPA and Quebec Charter of rights and freedoms.
Some specific statutes contradict the Code even if they are meant to complete it.
-It is not because the preliminary provision of the code states that it is the common law of Quebec
that this is necessarily so.

Class 3 , 4, 5: Good Faith

-The law of obligation is a huge chunk of the CCQ
-The idea of a juridical link/tie, un lien juridique between the debtor and creditor comes from fact
that in the past creditors could tie up their debtors if the latter failed to fulfill their obligations
-Additionally, the contrainte par corps allowed the creditor to put the debtor in prison if s/he did
not comply with his/her obligation. Nowadays, one has no power over the debtors person, one
only has control of the values, assets and patrimony of the debtor.
-Arts 6, 7, 1375 are not specifically in the section dealing with Ks, and therefore GF in not a
notion limited to K situations.
-Situating GF within the civilian tradition:
Move away from the post French Revolution philosophy: individualism and equality
o Prioritizing the interest of the weak
o Giving the judge the power to modify Ks
Greater trust in judicial function
Jurisprudential creative power vs attachment to the letter of the Code
-Codification of the concept of GF dates from 1991, it was not codified in the CCLC.
-Main questions that we are going to attempt to answer:
Is there an obligation of GF that requires us to be cooperative, to take another
persons interest into consideration or act decently towards co-contracting
parties?
Does the law really require contracting parties to be honest and fair with one
another?

1 History of Good Faith

-Historically speaking, GF was seen as contrary to the notion of individualism and the
theory of the autonomy of the will. In addition, the distrust of the judiciary meant that it
was difficult to provide them with such a tool to revisit Ks.
-Historical Roots

9
Now codified in 1375 CCQ the roots of the idea are old. We can trace the concept of GF to
Roman times and the notion of fides.
Fides was the standard of conduct required of roman citizens and involved: (1) keeping
promises and (2) acting honestly without malice.
Fides gave rise to 2 types of K: (1) Ks that arose of matter of law, and (2) GF Ks, arose by
word given from D to C.
In 1689, Domas suggested that all Ks should be good faith Ks. This was codified in French
civil code of 1894 at art. 1134: les conventions doivent tre executes de bonne foi . This
idea was never codified in Quebec civil law.
Good Faith in Quebec
In Quebec law, autonomy of the will was considered the primary principle and GF was seen as
a constraint on this. Nevertheless, GF became a principle in Quebec law through the concept
of equity [CCLC 1024] and jurisprudential rulings. This provision gave legislature power to
read-in obligations that were not explicitly in the K.
Eventually the law of Obligations had to address the conflict between the values of liberalism
and social justice. The basic argument was that the individualist approach allowed the
strong/more informed party to take advantage of the weak.
GF now applies to both pre- and post-K situation.
Principles were imposed so that idea of contractual liberty would not be used to exploit
vulnerable parties: (1) defect of consent, (2) GF, abuse of right, and public order, (3) new
powers to judges, and formal recognition of GF [6, 7, 1375 CCQ].
The concept is mainly used in a contractual setting. However, arts. 6 and 7 CCQ apply to the
whole Code. Moreover, 1375 CCQ is in the general section on obligations so it applies to
both K and XK.
Why is GF not defined? This allows for the principle to change with time. The problem
with this is that it gives judges a lot of discretion.
Two approaches to GF have been developed: (1) Subjective and (2) Objective.
Subjective Conception this is not the preferred approach
The subjective conception describes a state of mind
The person in GF ignores reality
Erroneous belief in the existence of a juridical situation
Objective Conception
The objective conception looks at the behaviour of the person in question.
A person acts in GF towards another when she adopts a loyal, honest and reasonable
attitude; the behaviours that the good citizen, the honest man, would have adopted in the
same circumstances.
Passive Aspect: person acting in GF would omit to do something that would have been
dishonest (omit to abuse rights)
Active Aspect: person acting in GF will act honestly and loyally (person will inform
contractant of information)

V. Karim: La rgle de bonne foi prvue dans larticle 1375 du CCQ : sa porte et les
sanctions qui en dcoulent , p. 55
-Bonne foi codifi larticle 1375 CCQ, et est de nature de lordre public de direction, et donc ne peut tre

10
effac dun K. Permet de sassurer dune certaine quit et dune justice contractuelle qui ntait pas si bien
garanties dans le CCLC.
-La bonne foi doit gouverner la conduite des parties au moment de la naissance de lobligation, mais aussi
lors de son excution et de son extinction.
-Obligation v-a-v non seulement lautre partie au contrat, mais galement envers les tiers. Dans le dernier
context, un manque la bonne foi constitue une cause daction Ex-K.
-Normalement, si il y a prsence dun contrat, le manque de bonne foi mnera un remde contractuel.
Mais sil ny a pas de contrat, quel est le rgime? Selon Karim, puisquune partie ayant part des
pourparler est sujette un avant-K, le manque de bonne foi au stade des ngociations qui naboutissent
pas un K donne droit un recours K (yet party is not entitled to expectation interest, see p. 460-1???)
-La bonne foi se prsume (art 2085 CCQ) et elle nest pas value selon des critres personnels mais bien
selon des critres objectifs et de socit. Puisque prsume, le fardeau de la preuve incombe celui qui
affirme labsence de bonne foi du contractant.
-Le dfaut davoir une conduite de bonne foi ne survient pas toujours en prsence de tout lment
dintention malveillante puisque les critres retenir sont ceux dun comportement raisonnable.
-Lobligation de se conduire de bonne foi a t sanctionne par la SCC dans larrt Banque de Mtl v. Bail.
-Bonne foi nest pas dfinie dans le CCQ.
-Il est noter que la bonne foi et labus de droit sont des concepts diffrents, bien quils peuvent
sentrecroiser rgulirement.
-Implique la notion
Dinformer car contracter, cest sengager en toute connaissance de cause. Ceci comme
contrepoid la ncessit de sinformer, car art 1400 (2) dicte clairement que lerreur inexcusable
nest pas cause de nullit.
de loyaut, de coopration, et de confidentialit.
-Obligation de bonne foi au stade de ngociation implique :
Interdiction de sapproprier des renseignements confidentiels
Mettre fin aux ngociations voues lchec.
-Larticle 1399 CCQ exige, pour que le K soit valablement form, que le consentement donn des parties
contractantes soit clair. Il faut donc conclure que les conditions de formation du K ne sont pas remplies
lorsquune partie contractante donne un consentement non clair la suite du manquement par lautre
partie son obligation de bonne foi (opration des articles 1375 et 1416 CCQ)

National Bank of Canada v. Houle [1990] 3 SCR 122, p. 68

Facts: company has loan with bank; bank calls in loan, takes possession of assets, and liquidates them
within three hours; company had been in negotiations for sale of shares, and as a result of the actions of the
bank loses a lot of money on the deal.
Issue: Is the bank liable for the loss of Profit considering the way in which it exercised its rights?
Held: Yes, the bank is liable because it exercised in contractual rights in an unreasonable/unfair manner.
Ratio:
The doctrine of abuse of contractual rights is part of Quebec civil law. The doctrine serves the
important social as well as economic function of controlling the exercise of contractual rights and is
consistent with today's trend towards a just and fair approach to rights and obligations. Bad faith or
malice in the exercise of a contractual right is no longer the only criterion for assessing whether such a
right has been abused. The standard of the prudent and reasonable individual can also form the basis for
liability resulting from an abuse of contractual rights. An abuse of rights may occur when the
contractual right is not exercised in a reasonable manner. The abuse of a contractual right gives rise to
contractual liability. This liability is based on art. 1024 C.C.L.C. and the underlying principle of good
faith in the execution of contracts.
In this case, it is not contested that the bank had the contractual rights to recall the loan on demand and
to realize on its security without notice. However, a creditor should not realize its securities or take
possession of assets before giving the debtor, depending on the circumstances of each case, a reasonable
time to meet its obligations. By liquidating the assets only three hours after demanding payment of the
loan, the bank effectively prevented any chance of the company's meeting its obligations the bank got
less for the assets than would have otherwise been possible, and at the same time decreased the value of

11
the company that was in the process of being sold. The bank acted in a sudden, impulsive, and
detrimental manner, particularly considering that there was never any warning that the bank was
concerned about its loan and there was only a low risk of losing money or security, at least in the short
term.
Rule: There is an implied term in all contracts that contractual rights will be exercised in a reasonable
manner in accordance with the rules of equity and fair play.
Principle:
- le critre moins rigoureux de lexercice raisonnable dun droit, la conduite de lindividu prudent et
diligent, par opposition au critre exigeant de la malice et de labsence de bonne foi, peut galement servir
de fondement la responsabilit rsultant de labus dun droit contractuel.
Comment:
This would have been different if the assets had been perishable, or something along similar lines.
Consistent with the art 7 CCQ in fact, this article is considered a codification of the decision in Houle.
Puts forth the issue of whether abuse of rights must take into account intent/motive; certainly where this
malice exists the action will be considered an abuse of rights this is the classic case; Houle establishes
that abuse of rights can exist even without malice when rights are exercised in an unreasonable
manner. A clearly objective conception of good faith.
What kinds of cases are likely to be interpreted as unreasonable? To exercise a right in way that the
parties never would have agreed to had it been negotiated. In this case, the bank obtained no benefit
and the company was badly hurt if they had negotiated about this the bank would probably have given
into the position of the company.
CML might decide this on the basis of an implied-in-fact term to exercise rights (right to seize and
liquidate assets) in a reasonable manner.

Good faith in the K setting:

SCC trilogy
o Houle, Soucisse, and Bail had a tremendous impact on the reform of the
Civil Code:
o Soucisse: introduced GF as an objective guide for conduct (case about a
revocable surety that heirs were not informed about): Justice Beetz
judgement:
Bank could not execute claim against the heirs because this would
allow the bank to conduct its K in bad faith
As there is no codal justification per se dealing with GF, the court
intervened on the basis of art 1024 CCLC (now 1434): idea of
equity
GF is an implied obligation of all Ks.
o Houle: added the positive duty to act reasonably in the exercise of K
rights
Bank K with company, the latter wants to sell the company and so
requests an increased line of credit, Bank exercises its right to
recall the loan without notice, Bank liquidates assets and company
was sold for much less than originally expected in the span of 3
hours
K is between company and Bank, but pfs are shareholders, and so
claim is Ex-K.
Court accepts argument: Bank abused K right and acted contrary to
GF
Conclusion:

12

Standard is not absence of good faith (malice) but rather

unreasonable behaviour
GF firmly entrenched in Quebec law
Basis of obligation of GF: art 1024
GF can ground the EX-K claim of a 3rd party.
Court changes the K on the basis of the obligation of GF,
erases a right that was clearly stated in the K
o Bail: Imposes an obligation of GF in the formation of the K, in the pre-K
setting
Bail K with Hydro for some construction, and sub-Ks with Laprise.
Hydro did not disclose problems of soil condition to Bail. Laprise
tried to do the work but it turned out, because of the soil condition,
to be much more costly: goes bankrupt. Assignee (BMO) sues
Hydro by arguing that Hydro should have disclosed info in the
formation of the K
Justice Gonthier: yes, Hydro should have disclosed
Ex-K situation again
Outlines a general theory of obligation to inform, which itself is
based on GF. Court outlines specific practical steps that must be
respected in the process of informing.
There is here consideration of the strengths and weaknesses of the
contracting parties, and the inequalities that may exists between
them.
-NOTE: Arts 6, 7, 1375, 1434 CCQ: these articles were informed by the above cases.
Recent cases:
o Aselford: pre-CCQ,
o Subaru: post-CCQ, GF obligation must not be extended too far so as to
infringe on a right provided for in a K that is not exercised in an abusive
manner.
Aselford Martin Shopping Centres v. A.L. Raymond [1990] RJQ 1971 (CS), p. 102
Facts: Aselford buys a shopping centre from A.L. Raymond and must make monthly payments. Sale K
stipulates that in case of default of payment, A.L. Raymond can request tenants to pay their rent directly to
it, so that it obtains its monthly payment. Aselford launches legal investigation in order to determine if it
can get rid of a tenant whose rent is significantly lower than that of the other tenants. A.L. seize on this to
request tenants to pay their rent to it.
Issue: 1) Was Aselford in default by virtue of its legal investigation, 2) If it was not in default, can AL still
force tenants to pay rent to it and not to Aselford?
Holding: 1) No and 2) No
Ratio:
-1) Fact that Aselford launched a legal investigation did not automatically put it in default. Furthermore, by
virtue of desisting from this investigation, as per art 264 of Civil Proceedings, the situation is brought back
to original state as if had never existed.
-2) While freedom of K is a major pillar of Quebec civil law, it is still subject to certain limitations. As per
art 1024 CCLC, one of these is equity. The exercise of the right stipulated in the K of sale [transfer of rent
payments to AL for any reason it sees fit] would be arbitrary and abusive considering that Aselford is not in
default. As such, it cannot be given effect to.
Comments:

13
- Example of case where court uses Good Faith obligation to modify terms of K
- Not only was the behaviour of AL abusive, but so was the clause of the K itself. It breach fundamental
rules of equity at 1024.
-Ct simply cancelled the clause in that aspect [can be exercised at any time] but retains it in general [can be
used if Aselford is in default of payment]. I.e. ct reads out part of the clause.

Subaru Auto Canada v. Caravane et Auto du Cap J.E. 96-754 (CA), p. 107
Facts: K between Subaru and dealer; K subject to yearly renewal; if K is not to be renewed then notice
required before October 1st; dealer given written notice on October 3rd but also phone notice on Sept 30th.
Issue: Is dealer in breach of good faith by refusing to recognize notice and demanding that lease be
renewed?
Held: No dealer not in breach of Good Faith.
Ratio:
-K stipulated that notices had to be in writing, thus the fact that Subaru phone on Sept 30 is of no
consequence.
-Subaru had decided in early Sept not to renew; should blame themselves for not sending written notice
before.
-It is not an abuse of right that the dealer invoke a clear term of the K since he has a serious and legitimate
interest in demanding that Subaru respect the terms of the K.
-The dealer is not exercising its K rights in an unreasonable or abusive manner by requesting that the
formality agreed to in the K be respected.
Rule: The requirements of Good Faith are contextual; insisting on formality in K not necessarily abuse of
rights.
Comments: The outcome might have been different if it was the dealer claiming a breach of Good Faith on
the part of Subaru.
Court statement: la thorie de labus des droits contractuels permet aux tribunaux dexercer un certain
contrle des relations contractuelles... Cet exercice ne doit pas, cependant, mettre en jeu la thorie de la
volont des parties ; en dautres mots, la cour doit exercer ce droit de faon restreinte.

Remedies for Breach of GF

-No official remedy is connected to a breach of GF; 1375 CCQ does not provide for a remedy;
-Three possibilities (1) Nullity for Defect of Consent; (2) Damages; (3) Autonomous Remedy.
o Defect of Consent: When breach of GF constitutes a defect of consent
[generally fraud or error] then one can use the remedies provided for in
1407 CCQ [nullity/damages]. The option of going with lesion is not so
useful (1405-6, 1408 CCQ) because it only applies in specific
circumstances (minors, protected majors, Ks of loan and consumer Ks)
o When GF is breached in formation of K then can bring an action in XK
under 1457 CCQ.
o Damages: either under 1457 CCQ [XK] or 1458 CCQ [K]. Damages will
be the remedy if the K is already underway.
o Autonomous Remedy: The real question is whether the remedy of
nullity is directly attached to breach of GF. Karim argues that GF is a
condition of formation. According to 1416 CCQ any contract which does
not meet the necessary conditions of its formation may be annulled.
Usually, this means consent, capacity etc. Although the Code is not
explicit, it may be that GF is so important that it has become a condition of
formation, which would then lead to a relative nullity per 1419 CCQ if it is
absent. The argument against this is that such an approach would allow
lesion [1406 CCQ] through the backdoor.

14
-Why do we need an autonomous remedy? In cases where a party to a K has clearly acted
in BF and in an unreasonable manner, but has not gone far enough to constitute error or fraud.
Example: A expends money in research while B has no intention to even enter K.

Good Faith: The obligation to inform and advise

-Arts 6, 7, 1375, 1401 (2), 1416, 1419, 2805 CCQ
P. le Tourneau & L. Cadiet, Droit de la responsabilit, p. 113 :
Lobligation de renseignements :
-Obligation dinformation se limite la communication des seules informations dtenues par celui qui en
est dbiteur, cette dtention devant tre prouve par le crancier de linformation.
-Obligation est diversement dsigne : obligation dinformation, de renseignements, de conseil, voire de
mise en garde.
-Il est possible dy voir une application du devoir plus gnral de collaboration entre les parties dcoulant
de la bonne foi devant dominer les rapports contractuels.
Lobligation dinformation :
-Le contractant prvient son cocontractant des risques et avantages de telle mesure ou acte envisag : il
lclaire afin que son choix soit effectu en pleine connaissance de cause. Mais l sarrte son devoir : il na
pas prendre parti, favoriser ladoption dune solution plutt quune autre.
-Cette obligation est en principe une obligation de rsultat : fournir linformation, et non pas faire son
possible cet effet.
-Il arrive dailleurs que ce devoir de sinformer mutuellement subsiste durant toute la vie contractuelle, en
vertu dune clause expresse ou tacite, cette obligation tant inhrente telle espce de K.
-Pour informer autrui, encore faut-il tre inform personnellement. Le dbiteur de linformation a donc
lobligation de se renseigner lui-mme.
-Cependant lont doit maintenir lobligation dinformer dans des limites raisonnables : ds lors cette
obligation se voit parallle au devoir du crancier de sinformer lui-mme.
-Il faut chaque fois tenir compte des comptences respectives des parties, que le juge doit donc mettre en
balance pour dfinir lintensit exacte de lobligation.
-Il arrive de faire peser un devoir de se renseigner sur le crancier lui-mme de linformation dont
lignorance, face son cocontractant, ne deviendra prcisment lgitime qu cette condition.
-Notons galement le droit de se taire : tel lorsquun mdecin ne divulgue que les risques habituels dune
opration, et non les risques rares et exceptionnels.

Obligation to Inform [Soucise and Bail]

-The OTI is a jurisprudential creation. It is a reaction to the new reality. Ks are increasingly
complex and lay persons are often forced to negotiate with experts. The OTI re-establishes
equality between the parties.
-OTI is condition of formation for the following Ks: doctor/patient, construction, sale, and Ks
with banks. Generally one party is lay and the other is an expert but this is not always the case.
-OTI is related to the notions of consent in that A provides B with information so that B can give
informed consent.
-Three approaches:
OTI must be linked to an obligation expressly stated in the code eg: defects of consent,
obligation of security (K about dangerous goods)
Implicit obligation flowing from equity: 1024 CCLC, 1434 CCQ
OTI flows from GF (this is the option adopted by the SCC)

-Soucise: the first expression of OTI. SCC placed OTI on bank during the course of the K.
There was no question of remedy because it was the bank trying to force the heirs to pay. The
SCC simply relieved the heirs of this obligation. It is very clear that the OTI is closely linked to
the principle of GF.

15
-Bail: confirms the importance of OTI.

OTI imposed in context of formation of K.

OTI flows from GF, confirms the relationship between the 2.
Sets out conditions for OTI
OTI is a reciprocal and continuing obligation.
See p. 206 of casebook for Jutras analysis of Bail

The Relationship Between OTI and GF

The relationship between OTI and GF is not always obvious. Some say that OTI must

be linked to the code in order to be legitimate. We can now link OTI to 1375 CCQ
and 1434 CCQ, and use Bail as precedent.
OTI is a general obligation for all Ks and comes via GF.
Regie c. Janin [1999] C.A., p. 115
Facts: municipality called for tenders to build sewage; the call included information about subsoil to assist
those making bids exclusion of liability clause stipulated that the municipality was not liable for increased
costs if the subsoil information was wrong; the information turned out to be wrong; company that won bid
sues for higher costs.
Held: CA says that it was reasonable for J to rely on the subsoil analysis provided by municipality; the
municipality brought in experts and J was entitled to rely on this information. Even though there was an
exclusion of liability clause, it is invalid because it essentially wipes out any obligation to inform [with
reasonable accuracy].
-L'obligation de vrification de l'entrepreneur ne doit pas consister refaire le travail accompli par les
experts du matre d'ouvrage.
-Il parat draisonnable et contraire l'obligation gnrale de bonne foi du matre d'ouvrage de priver de
tout effet l'obligation de renseignement qu'il supporte l'gard de ses cocontractants. Le juge de premire
instance tait donc fond carter la clause d'exonration de responsabilit en vertu de l'art 1437 CCQ.

-Debtor must inform him/herself to be able to inform the creditor, of course but
creditor has obligation to self-inform.
-The OTSI can be imposed on either the debtor or the creditor. A debtor may have to get info
from 3rd party [this is the OTSI] and then convey this to the creditor. At the same time, a creditor
is responsible for making an effort to inform himself of possible risks this OTSI limits what
may seem like an absolute OTI.
-To what extent does an OTSI exist? If you are a contractor do you have to do your own
soil studies as per Janin? Do you have to at least read the K as per Bolduc? This is a difficult
question to answer and there is no clear rule.
-However, it is clear that there are two situations in which the creditor in not under and OTSI: (1)
if it is impossible to do so, or (2) if there is legitimate reliance on information provided by the
debtor [both of these are conditions of establishing a breach of OTI in Bail]. The reason for these
exceptions is that there are some relationships in which it is impossible or unreasonable for the
creditor to self-inform.

Obligation To Advise
-Obligation to inform is fairly straightforward. Question now is obligation to advise:
Goes further than just inform, you are to give advise, be proactive.
Certain K's exist where OTA is a necessary component.
When you move into other K's is there an obligation to inform and also one to
advise?

16

There is no answer in Quebec law.

-Heavier duty that the obligation to inform, goes to advising not to K if it is not
appropriate under the circumstances.
-Lawyers have this obligation, so do notaries, conseiller en valeur mobilire, conseillers
en placement, and all others providing financial advise.
-The general rules is that an OTI does not require an OTA. For example, doctors will give
options with risks and advantages, but in end the decision is always left to patient.
-When an OTA exists it is a much more onerous obligation than the simple OTI. There is a great
potential for liability when an OTA exists. Sometimes line between OTI and OTA is blurry.

Bolduc c. Decelles [1996] CQ, p. 123:

Facts: B wanted to invest in RRSP; D goes over explanations and then has her sign K for life insurance
investment rather than RRSP; the investment provides no tax advantages and heavy penalties if she
cancelled.
Issue: Did D fail in his Obligation to inform?
Held: Yes D failed in his OTI.
Reasons:
The OTI is part of GF and codified in 1375 CCQ.
When one contracting party is in the position of expert he/she has an OTI. The failure of D to inform
R about nature of investment constituted an error [1400 CCQ] that vitiates consent [1399 CCQ]. The
error made by R is not inexcusable considering the complexity of the K in question and fraud of D, and
this despite the fact that B did not read the K.
B also gets damages for fraud.
Actions of D constitute a 'dol par reticence'
Rule: Breach of OTI may constitute error [1400 CCQ] and therefore vitiate consent [1399 CCQ]; an error
is not necessarily inexcusable even if the plaintiff has not read the K.

-This is a difficult case, since it might set a precedent in terms for situations where one
signs a K without reading it and gets off on the basis of not having read it.
-Decelles was convicted for damages for fraud base on an Extra-K realm. Case was decided on
the basis of extra-k but the argument is based on an obligation to inform, ie. K issue. Court says
that Decelles breached his obligation of GF.
-Given the complexity of the issue and document and that Decelles was an expert in a specialized
topic, it was reasonable for the couple to rely on Decelles and not read their K.
-Is this a duty to inform or advise? Well, it was not the right plan and it was also not in their best
interest to take the life insurance: he did not tell them that it was an rrsp.
-He suggested that they buy something that was against their best interest.
-He should have not only presented the benefits and disadvantages of both options, but also
should have told them that the Life Insurance was not the best option.
-Case is on the border of information and advise.

Trust Royale c. Veilleux [2000] CA, p. 128:

Facts: S has mortgage K with bank that is associated with K for life-insurance; bank sends notice about
renewal of mortgage and life insurance; S goes to bank to renew mortgage, but bank says nothing about life
insurance; bank then sends notice that life insurance not renewed; S dies a few months later with no life
insurance.
Issue: Can the testamentary executor argue that bank did not act in good faith?
Held:
The bank failed to act in the best interests of its client it was clearly in her interest to renew the life
insurance. The bank acts as financial advisor and must act with prudence and diligence. Despite
documents noting that the life insurance needed to be renewed it would have been easy for the bank to

17
advise S to renew the life insurance at same time as mortgage. There was a clear breach in the OTA.
Even though the bank breached its OTA its last notice about the need to renew the life insurance was
explicit; Ss failure to follow up on this notice erases the fault committed by the bank (it breaks the
chain of causation between injury and wrongful act).
Rule: In Ks for financial services the provider is under an OTA.

-The bank failed in its obligation to inform, should have told her that she should renew, but the
court also says her negligence broke the chain and causation so while they did breach their
obligation to advise, they are not the cause of the injury.
-Distinguishes between inform and advise.
-Duty to advise has been recognized in Quebec in some circumstances. This is due to the
inequality b/n the parties but still the parties do not really do this. Tell you the pros and cons but
don't really advise.

Obligation to Cooperate
-This doctrine is less developed than the above two (OTA, OTI).
-In order for OTC to apply two conditions are necessary:
(1) pursuit of common goal, and
(2) frequency of relations between parties [K of successive performance].
-The OTC involves taking into account the interests of other party, and facilitating execution of
K. The OTC has both negative [must refrain from doing things that are detrimental] and positive
aspects [must realize common goal and/or help other party to fulfill obligations].
-In practical terms the OTC can be satisfied through the OTI and OTA.
-Based on a new vision of the K, New Contractual morality. The Co-K are seen as partners.
Starting to be recognized in Quebec. The obligation of co-op is seen in K of Franchise and
Employment.
-Some judges and writers accept this on the basis of GF.
-Not recognized as a general obligation or as applying to all K, but applies to certain K's that have
certain characteristics.

Franois Diesse, Le devoir de coopration comme principe directeur du K, p. 131:

-La coopration gouverne incontestablement le K.
-Chaque partie incarne pour l'autre l'espoir, la confiance, et la conviction d'obtenir la satisfaction
recherche. Ainsi la diffrence entre les intrts des parties n'est pas forcment une source de conflit ou
d'opposition, elle peut tre au contraire facteur de complmentarit.
-L'on peut affirmer que l'exigence de la coopration permet, un certain degr d'abstraction et de
gnralisation, de sauvegarder la justice K et d'assurer l'utilit du K pour chacune des parties.
-Le devoir de coopration assure dans le K , une zone de protection des intrts particuliers, et par suite de
l'intrt gnral, en faisant en sorte que la parole donne ne soit dconsidre ou vide de son utilit, que
l'attente lgitime des uns ne soit pas dues par les autres.
-Devoir de coopration, c'est s'obliger prendre les intrts de son co-contractant en compte, les respecter
et agir en vu de leur dveloppement.
Should duty to cooperate be elevated to governing principle?
Proposition: because GF codified there is general obligation of cooperation and loyalty that should
govern all Ks.
Liberal Conception: K is law between two parties; K liberty is paramount; there is fundamental
opposition because of competing interests; thus cooperation cannot be essential component of K.
Cooperative Conception: see parties as true partners; does not take for granted conflicting interests,
but focuses on common interests/goals; in harmony with etymology of word contract which originally
meant pull together.
In negotiations there may be conflicting interests, but once there is K perhaps interests are more
common.

18

Directing principle of K law:

-Liberal concept of K: K is a source of opposition b/n the parties, ie. conflicting interests that the
parties are pursuing. The enrichment of a party is done at the sake of the other party. Says that
you can't really assume that there will be co-operation b/n parties b/c that is not the point of a K.
Diesse arguments:
-Cooperative conception of K: K is a source of complementary engagement. Idea that they are
partners to common goals.

Provigo Distribution Inc. v. Supermarch A.R.G. Inc., 1998, CA, p. 153

Facts: ARG owns 3 supermarkets in Granby. ARG gets franchise right from P, who also operates its own
stores. Bulk stores start opening and P gets into the game with its own stores. ARG argues that this new
economic strategy came at their expense, since meant even more super stores with which they could not
compete. P basically interferes with success of ARG.
Held:
-Mme si, en l'espce, aucune obligation n'tait faite l'appelante de s'abstenir de faire concurrence ses
franchises pendant la dure de la convention et son expiration, il faut toutefois considrer que les
obligations dcoulant d'un K s'tendent galement celles qui rsultent de sa nature, de l'quit et de
l'usage ou de la loi (art 1434).
-Il fallait permettre l'appelante de contrer la concurrence exerce pas les comptiteurs de son magasin
escompte. Toutefois, ses tentatives de restructuration et son droit la libre concurrence devaient tre
exercs de bonne foi en raison du partenariat cr avec les intimes par les K d'affiliation. Autrement dit, P
avait un obligation de collaboration et de coopration.
-Elle a manqu cette obligation de loyaut lorsqu'elle s'est adresse la concurrence des magasins
escompte en misant davantage sur le dveloppement de ses propres magasins, en ngligeant de rduire
l'impact de cette stratgie sur les affaires des intimes et, surtout, en ne leur fournissant pas les outils
ncessaires pour faire face une telle concurrence.
-1375 CCQ linked to new vision of K new contractual morality.
-The franchisor can compete with franchisee if it is in good faith and does not empty the franchise K of its
advantages. If the goal is to directly compete, then OTC is violated.
-The franchisor must assist franchisee commercially and otherwise; these obligations were not respected by
P.
-The OTC is linked to GF and is clearly a positive obligation.
-The franchisor/franchisee relationship is special and the OTC is implicit in these Ks.
Rule: OTC is positive obligation; franchisor/franchisee Ks contain implicit OTC.
-Obligation de fiduciaire n'a aucune pertinence en droit qubcois.

-Court placed an obligation on the part of Provigo not to be a nuisance towards ARG.
-Said that K morality has changed the way we look at K in order to preserve the best interests of
the parties.
-Not saying that there is a general rule that you can't compete against a franchisee, rather saying
that you can't engage in activities that empty the K of its value and purpose. They will need to
provide technical assistance and act in a way that recognizes that they have a partnership with
their franchisee.
-Provigo did not co-op or act in accordance with their K. "Provigo acted as though they did not
have a franchise and did not provide the franchisee with the tools to deal with the competition
that was not aimed at the franchisee yet still impacted them."
-OTC and Imprevision

-The tension between a liberal and a cooperative vision of K law is present in Quebec
law. This leads us to ask if we should adopt the theory of imprevision (which does not

19
exist at this point in time in Quebec, but does exist in other jurisdictions: Germany,
Middle East, Italy, the Netherlands etc.)
-Imprevision is not currently accepted in Quebec. Judges will not alter/modify terms of K and
there is no general judicial power that allows them to do so.

-What imprevision would do is give the power to a judge to modify or annul a K, not
because of a default of consent, but because of a change of situation such that the K
should not be completed as initially contemplated. It would allow a judge to modify the
terms of a K, or nullify it completely, on account of a disruption of the general
economical situation which changes the K equilibrium btw the parties (Baudouin-Jobin).
-Note that imprevision need not necessarily limited to economic consideration: it may
cover all external circumstances over which the parties have no control.
-Germany, Italy, Netherlands, Greece, Switzerland etc. in some countries, such as
Algeria, Egypt and Syria, the theory of imprevision is a public order notion, such that
parties cannot K out of it.
-Theory of imprevision: Justifications:
Rebus Sic Stantibus
GF
Thorie de la cause
Force Majeure
"Wegfall der Geschaftsgrundlage"

Implicit imprevision clause: we presume that the parties willingly consented to

enter the K based on their appreciation of the surrounding circumstances. If these
circumstances change, we could presume that their consent is not longer good.
This is the main justification in Germany and Italy: party A is aware that party B
agreed to the K on the basis of certain circumstances, and acquiesced. If the
circumstances collapse, then consent of B is no longer valid and party A has to
allow party B to get out of the K. Essentially the argument is about the validity of
the consent.
Good Faith: give a guy a break essentially: it is not acting in GF to force one's cocontractant to stick to the terms of a K if the circumstances have changed so much
that their obligation is overly onerous.
Thorie de la cause: cause is the party's subjective reason for getting into K: if the
motivation disappears on account of new circumstances, the cause is no longer
present.
Superior force (force majeure): criterions of superior force: unforeseeability,
irresistibility, externality. It would be irrelevant to use this notion to justify
imprevision, since force majeure is already an available tool.
-NOTE: Office de rvision du code did consider the possibility of incorporating the idea
of imprvision in the new CCQ, but its recommendation was rejected.
-One can include imprevision clauses in the K in Quebec: this is not against public order.
Why is it not done?
Fear of frivolous litigation (what is the level of change that is required for
imprevision to be considered?)
Inequality of bargaining power: the weaker party is probably the one that would
want the imprevision clause, but would probably not be able to get it in the K.
-Remedies afforded by imprevision:

20

Resiliation of the K: annulled for the future, but no retroactive consequences

Revision/ adaptation of the K: Martin raises an issue here, asking to what extent
should a judge be allowed to intervene and try to readjust the equilibrium that
initially existed in the K?
Duty to renegotiate: Stofell explains that this is all about a judge inviting the
parties to sit down at negotiating table and find a new accord. If this fails, if there
is no accord, then said judge could grant compensation to the party that is subject
to the unfortunate consequences of the imprevision.

Imprevision theory is that if performance becomes harder or more expensive, then OTC
imposes a duty to renegotiate
Would it be possible for judge to nullify or modify K because balance between parties
changed as result of change/disruption in economic conditions? Examples of disruption:
devaluation of currency, increase in cost of raw materials, war, arrival on market of cheaper
product, etc.
If imprevision was accepted the conditions would be: (1) equilibrium must be disrupted in
important way, (2) must be caused by unforeseeable circumstances, (3) circumstances must be
independent from will of parties. This sounds a lot like force majeure (except for irresistible
requirement)
Authors have tried to link theory of imprevision to ideas of:
(1) GF A is not in GF if would cause great hardship to B to perform;
(2) K interpretation there is implicit imprevision clause which makes K no longer valid if
circumstances change drastically;
(3) Cause each party has cause (motivation) for entering into K and if situation changes
drastically enough then the cause of one party disappears;
(4) Force Majeure see 1470(2) CCQ.
Imprevision accepted and codified in Germany. In other jurisdictions it is established by
statute. Imprevision is of public order in certain jurisdictions. Quebec and France dont accept
imprevision the theory of contractual liberty is still too powerful.
What are the problems with imprevision? Lack of stability; assumption of risks by

one party or both; intention of the parties; power afforded to judge; legislator
expressly refused to include it in CCQ; maybe just unnecessary considering other
remedies; introduction of lesion through backdoor?
What are advantage of imprevision? Doctrine limited by conditions necessary for
its existence; not allowing would itself create instability [people not fulfilling Ks];
consistent with moral tenor of CVL.
Stefan Martin, Pour une reception de la thorie de l'imprvision en droit positif
qubcois, p. 163
-Begins with the basic idea is that because the maxim pacta sunt servanda is already so limited by other
concepts in CiL, it would not be revolutionary to explicitly allow judicial review of contractual terms in QC
CiL. I.e. contractual obligations are already relative
-Points out places in CCQ where lesion between majors is prohibited:
consumer protection

abusive clauses are not enforced

abuse of right is not allowed

-There is no reason to think that allowing judicial review of K terms will lead to increased instability

21
-The judicial function, the scope of the law, is not incompatible with the creation of contract with private
parties, even if we use the law to enforce the ObCo.
-Gives four concepts that already exist in QC law to which review can easily be tied, in order to justify its
introduction (i.e. trying to anchor it in the Code).
Good Faith: a party cannot force the other party to perform an obligation that is unnecessarily
harmful to that other party (abuse of right)
Rules of Interpretation: Parties can be presumed to have tied their intent to the circumstances at
the time of formation, i.e. all contracts have implicit imprvision clauses, and judges are allowed
to find implicit clauses
The theory of cause: in certain cases, the subjective cause of the K will disappear, which means
that because that is an essential element of the K, the K itself falls
Force Majeure (now 1470(2)): There is a spectrum of impossibility that is already recognized as
nullificatory of certain obligations
-Situation in QC: Imprvision:
-In Germany, the theory has been accepted since WWI, and is now codified. Same in Switzerland, Italy and
Greece. Its a rule of public order in Egypt, Syria and Algeria.
-In France, its accepted in administrative courts, but not in civil courts
-In QC, its not accepted. The Office de la Revision recommended that it be included in the CCQ where the
circumstances were unforeseeable and truly exceptional.
-One way to get imprvision in QC: write it in the contract (Canada Starch). Or, consumer contracts (Art
1771, 1834).
-Remedies if it were accepted: (1) resiliation (2) revision by court (3) Forced re-negotiation (which leads to
dm if it fails)
-Discussion Question: Is imprvision compatible with QC CiL?
-Seems consonant with the new contractual morality, it would have to be under exceptional circumstances,
1470(2) covers it anyway.
-Since 1470(2) already covers it, those who advocate it have a counter to the instability argument.
-Non-modification can lead to bankruptcy, i.e. can itself cause instability
-If you want it, put it in the contract. The risks should be allocated internally anyway. If you didnt include
it, thats one way to allocate the risk, and the courts shouldnt be adjusting that afterwards. (But, what about
cases of inequality?)
-Is it too much judicial power
-The legislature explicitly rejected it
-With a strong duty to cooperate, would you need a theory of imprvision??
Stoffel-Munck, "Regards sur la thorie de limprvision: Vers une souplesse contractuelle en droit priv
franais contemporain", p. 175
-The above quote makes a direct link of this principle with idea of contractual liability
-The principle of co-operation has to do with doctrine in French administrative law re: doctrine of
imprevision (unforseeability)
-Doctrine of Administrative law gives excuse for non-performance of K in cases of impracticability
(economic) due to an abnormal change of circumstances
-As for the basis of this principle of co-operation, he suggests that this principle is a deduction from the
more general principle of good faith
-Major characteristic of Civil law systems to refer to good faith rather than in Common law
Three implications of co-operation
(1) Through this principle, a party to a K may be obliged to first renounce the exercise of a Contractual
right or a Contractual power which is no longer useful or whose expected utility initial purpose as this
appeared
The first spatial obligation issuing from co-operation is to renounce the strict performance of the K and
not to insist on respect for exercise of contractual right
(2) The principle of co-operation could oblige party of K to renegotiate the whole contract or just a specific
term with or without the assistance of a third party; the negotiation would be an alternative to the

22
termination of the K or to a judicial revision of the K
(3) The principle of co-operation may signify that a party would be obliged to compensate the other party
for the consequences of a non-co-operative behaviour; especially if this party insists on the strict
performance of a K or if this party refuses to renegotiate the contract, the legal consequence could be that
he would be liable for compensating the other party for the consequences of his non-co-operating behaviour
Stoffel also warns us of very serious reluctance toward this principle or some extension of it and he
remarks that this resistance is greater in civil law as compared to commercial law in Civil law
-Civil law and commercial law distinction is greater in Civil law
-Resistance to this principle is on philosophical or moral foundations, the principle of which is the reference
is the autonomy of the will which is a basic fundamental principle against a clear or large reception of
principle of co-operation; Stoffel says that lawyers which have moral considerations of guiding principles
will resist principle of co-operation; principle of co-operation has to do with economic considerations rather
than moral considerations

Werner F Ebke and Bettina M Steinhauer, The Doctrine of Good Faith in German K
Law, p. 183:
-The doctrine of good faith in German law is set forth in S. 242 of the BGB, but the idea has been judicially
created/expanded beyond its initial codal boundaries.
-As such, the idea has been widely accepted and welcomed for a long time, almost since the introduction of
the BGB in 1896.
-In German Law, doctrine of Good Faith fulfills 3 basic functions:
1. Serves as the legal basis of interstitial law-making by the judiciary: it was used to create new
causes of action where no cause existed (has been used like a sword)
2. Forms the basis for reallocating risks in private suits: doctrine can be relied on as a defence
where, unforeseen by the parties, the basic assumptions underlying their K relationship have
changed fundamentally between the time the K was entered into and the agreed upon time of
performance (used as a shield).
3. Provides a statutory basis of reallocating risks in private Ks: reallocate risks between parties to a
K where stringent adherence to traditional principles and rules of law would lead to undesirable
results.
-The article basically only deals with 2., or imprvision.
-Essentially article looks at various cases that used the doctrines of
Impracticability (where particular events have rendered the obligation, or its performance in the
contemplated fashion, impracticable)
Change in economic circumstances (where events have the result that the economic essence of
what could still be done is different from the act that was agreed to be done, performance has
become essentially different and therefore impossible)
Frustration of purpose (where performance is still possible, but the creditor has lost interest in
the performance: refer to Krell v. Henry from K law)
Mutual error (where the intended K is different from the K actually entered into)
All of which could be subsumed under the umbrella idea of imprvision,
And concludes that all of these are based on the notion of good faith of s. 242.
Point: Good Faith may direct lead to imprvision; the latter could be the logical end to which we are driven
if we recognize the doctrine of good faith. Why? Because if good faith is about treating your cocontractants fairly, then changed circumstances that render their obligation too onerous in light of the
raison d'tre of the K might force you to accept either reduced obligations or even a nullity, which is
precisely what the idea of imprvision is about.

Third Parties' Rights

-Arts 1440-1450, 1457 CCQ
-Refer to Houle v. Banque Canadienne Nationale

23
-Here shareholders of the company (that were not party to the K, since the company itself was the
contracting party) had to prove a distinct legal obligation over and beyond the K obligations:
parties to a K have X-K obligations to other parties, the fact that a K exists does not mean that the
parties to the K are not subject to other obligations such as X-K obligations

General Motors v. Kravitz, 1979, SCR, p. 190

Facts: manufacturer sells car to dealer (K), the dealer sells to Kravitz (K); car doesnt work; Can Kravitz
sue manufacturer in K? Only if K between dealer and manufacturer has stipulation for another based on
warranty. Can court give K right to Kravitz? A warranty is personal right so doesnt make sense that it
would just be passed on to Kravitz.
Held:
The real issue is how to pass a warranty to a successive buyer. There are three possible doctrinal
justifications: (1) relativity has exceptions and this is just one more, but no real parallel; (2) rights
attached to thing - Pratt says that some rights so closely related to thing that can benefit only the owner
problem with argument is that personal rights are personal rights [warranty is personal rights so
attaches to person not object]; (3) accessory theory K of sale carries transfer of good and all
accessories; accessory to good is normally physical thing; Pratt considers warranty (right) as accessory.
It simply doesnt make sense if the owner does not benefit from warranty.
Kravitz is now codified 1442 CCQ: The rights of the parties to a contract pass to their successors by
particular title if they are accessory to property which passes to them or are directly related to it. This
basically says that warranty can pass to 3rd party.
Why did Kravitz not sue under XK? Fault would be hard to prove.
Why did Kravitz not sue the dealer: deeper pockets are those of manufacturer
Rule: 3rd party can sue in warranty based on theory that the warranty is accessory to the object [1442 CCQ].

-Academic explanations of Kravitz:

Exception to principle of relativity: CCLC 1028, 1031: case fits in one of those
exceptions
Rights attached to the thing theory: warranty was a droit reel and not a personal right: this
could not work, clear in the law that a warranty is a personal right.
Accessory theory (dominant): now 1442: K of sale, with a transfer of the good will come
all the accessories attached to the good even if this is not stipulated in the K. EX: milk
truck transferred in a K is accompanied by the milk route (which is an accessory). Here
the transfer of the car makes no sense without a transfer of the warranty. This is the
argument that was accepted.
Daniel Jutras, Le tiers tromp, p. 205:
-Looks at Bail in order to determine the justification for a third party's right to lay X-K claim v-a-v a
contracting party.
-see p. 206 for his analysis of Bail and obligation to inform
-Notion traditionnelle: seules les parties contractantes ont cette possibilit de demander rparation pour un
dommage qui est li l'existence ou l'excution d'un K. Notion de l'effet relatif: les consquences du K
sont relatives seulement pour les parties contractantes.
-Deux faons pour le tiers pour contourner ce problme de l'effet relatif: 1) prtendre faire partie du K, 2)
avoir un recours X-K
-Notion de 'faux tiers': personnes qui sont entre les contractants et les tiers: EX: sous-acqureur comme
dans Kravitz, qui ont un droit transmit comme accessoire de la chose reue par titre particulier. Ceux-ci ont
un recours contractuel.
-Devoirs contractuels et devoirs lgaux ne concident pas exactement: toute faute contractuelle n'est pas
faute quasi-dlictuelle.
-La mthode retenir (comme l'a fait la SCC dans Bail) consiste se demander si le contractant s'est
comport, l'gard des tiers, comme l'aurait fait une personne raisonnable place dans les mmes
circonstances.
-Facteurs qui contribuent dterminer l'existence d'une obligation envers le tiers:

24

Si le dfaut d'excution de l'obligation contractuelle comporte une menace pour l'intgrit

physique ou les choses matrielles d'autrui.
S'il apparat que le contractant, agissant de mauvaise foi, a port atteinte aux intrts du tiers en
toute connaissance de cause, ou mme avec l'intention de nuire.
Lorsque le contractant dfaillant s'est comport, l'gard de ce tiers, d'une manire qui incite
celui-ci accorder sa confiance au contractant, s'en remettre lui (comme ce fut le cas dans
Bail)

Caisse Populaire v. Michaud, 1990, QC CA, p. 210:

Facts: Lebel hires accountant to prepare an assessment of his financial status. The assessment is based on
the info that Lebel gave to the accountants. Caisse looks at assessment and decides to grant 4 loans to
Lebel. He subsequently goes bankrupt because it turns out he had a debt of 1,5 million $ that he had not
disclosed to the accountants. Considering there was negligence by accountants in not getting all info
required for assessment, can the Caisse [as a third party, not party to the K between Lebel and accountants]
sue them?
Held
This is question of victim par ricochet; in CVL there is no tool to limit the class of persons entitled to
make XK claims; claims are limited through causation.
Baudouin:
No doubt Lebel is liable for fraud because did not provide all info, was not honest. Real question is: are
the accountants liable?
Certainly they are at fault: did not live up to professional practice. But two further questions: (1) were
the accountants the direct and immediate cause of the Caisse's losses? This could be argued either
way, but according to Baudouin the answer is NO because the Caisse also had financial experts and it is
not reasonable to believe that these did not notice some inconsistencies in the assessment [inexcusable
error?]. Much like the accountants, they did not dig deep enough. (2) Was the information
determinative? Testimony reveals that Caisse could have decided to provide the loans even if it had
known the true state of Lebel's finances. Accountants are therefore not the direct cause of the Caisse's
losses [break in the chain of causation].
Beauregard & Mailhot: essentially agree with Baudouin.
Rule: 3rd parties to a K can sue in X-K; breach by one of K parties does not automatically constitute fault
for the third party, who must prove fault, injury, and causation [primary tool for limiting].

-In this case fault was proven, but causation was not. This is why the auditors/accountants
got off.
-NOTE: a contracting party's liability to third parties for a breach of K obligation is
limited by the requirements of X-K: fault, causality, injury etc. Recall Regent Taxi: case
about the congregation suing the taxi company for the injuries to one of its member with
which it has an employment K. Parties to a K are subject to other obligations to third
party if the latter can prove fault on the part of the first party, an injury and causation.
The latter is the most significant tool used to limit this liability to third party.
-NOTE: in the CML, the same is accomplished thru duty of care, not causation.
-Third party rights: Exception to the autonomy of the will, jurisprudentially created, area that
contrast with CML
K between A and B. A breaches and causes prejudice to C.
Can C benefit from the K? Can 3rd party [C] sue for breach? What are effects of K with
respect to 3rd parties? What is potential liability of contracting parties to 3 rd parties? If C can
sue, is the claim K or X-K?

25
Relativity of Conventions:
1440 CCQ: A contract has effect only between the contracting parties; it does not affect third
persons, except where provided by law
K is the law of the parties, and effects only the parties privy to the K, not third parties
In CML called privity of K and is justified on basis that 3rd party has not provided
consideration
Autonomy of the Will: if K is enforceable because the wills of the parties wanted to be bound,
only the wills of the parties should be bound; third parties should not be bound and parties to the
K should not have obligations towards parties not part of the K
Multiple Exceptions to Relativity:
-From Kravitz: court says: the principle of relativity of conventions is not as strong in the CVL as
in other systems because so many exceptions
1444 CCQ [stipulation for another/stipulation pour autrui]: A (stipulator) contracts with B
(promisor) to effect that B will confer benefit on C (third party); if B does not perform then C
has direct right of action against B; action is based on a K that is not between the claiming
party and the breacher (not between C and B) so this is clear exception; the classic example is
K for life insurance K is between A and B. C is to benefit in terms of payment when A dies.
If B does not pay, then C has direct right of action against B. NOTE: this is a very difficult
situation for the CML. Another example: benefits to unborn child in a marriage K
1442 CCQ: K between A and B, no clause that C will benefit. K between A and C. C wants to
rely on K between A and B even if not party to it. For example: property transferred by
particular title with accessory rights (like car warranty) in cases that contain latent defects.
This is the Kravitz case.
o NOTE: Warranty is usually a personal right, it is attached to the person and not
the thing subject to the property (not a real right).
o NOTE: did not want to go after dealer, cause deeper pockets with manufacturers
o NOTE: did not want to go after the manufacturer thru X-K because would need
to prove fault and causation, whereas thru K only needed to show that the K was
breached (here in terms of the warranty provided)
Can 3rd party claim be under K? No - if allow 3rd party to sue contracting party invoking
breach of K as fault then violates relativity of conventions.
Can 3rd party can have XK claim? Yes No limit to class of persons [Regent Taxi].
However, plaintiff would have to establish fault, injury, and causation. NB: breach of K alone
does not constitute fault. Fault must be proved by answering: [1] Would RP have foreseen that
breach of K would have injured someone? [2] What precaution would RP have taken?
Primarily limited through causation.

Unjust Enrichment
Arts 1493-1496
UE is a separate category of obligations it is neither K or XK. Why is this the case?
Normally there is neither a K [or a K that is void], nor fault.
UE is a jurisprudential creation, but has now been codified in CCQ [1493-1496 CCQ]. Before
codification [and even now] the basis of UE was the principle of equity.

26
Purpose: The purpose of UE is to readjust patrimonies of parties to avoid a situation in
which one party is unjustly enriched at the expense of another.

Cie Immobiliere Viger Ltee v. Laureat Giguere Inc., SCC, 1976, p. 214:
Facts: Town of Plessisville has K with Viger whereby it will sell and level land so that Viger installs and
operates a dairy processing plant in its municipality. Plessissville hires Giguere to do the levelling. Turns
out K between Plessisville and Viger as well as K between Plessisville and Giguere were not valid, cause
did not meet requirements of formality. Giguere does not get paid in full, and wants to sue Viger for unjust
enrichment (can't sue Plessisvile cause they did not get the unjust enrichment)
Issue: Can Giguere sue Viger for unjust enrichment considering that they are not in a K relationship? More
generally, what are the elements of unjust enrichment?
Held: Yes, can sue
Ratio:
-Conditions of application of unjust enrichment:
1. An enrichment
2. An impoverishment
3. A correlation between the enrichment and the impoverishment
4. Absence of justification
5. Absence of evasion of the law
6. Absence of any other remedy
-Court came to positive answer for 1-3, but 4 is the issue at play in the appeal.
-Promise of aid made by Plessisville to Viger: town would level the lots for the benefit of Viger without
cost. This promise is absolutely void. So is the K between Plessisville and Giguere because non-compliance
with formalities.
-It is the illegality of the agreements between Viger and Plessisville, agreements which Giguere had
absolutely nothing to do with, which prevented approval by the competent authorities and it would be
unjust and unlawful that a third party should have to bear the cost of an illegality of which it is innocent.
-Court seems to be saying that had the K between Viger and Plessisville been valid, there would have been
no unjust enrichment because on that account the K between Plessisville and Giguere would have been
good as well, and even if not, there would have been a justification for the enrichment. But since the first K
was no good, and because this was in no way Giguere's fault, he should not be penalized for it, and since
Viger obtained the benefit of Giguere's work, they should have to pay up.

Vilaysoun Loungnarath v. Centre Hospitalier Des Laurentides, QC CA, 1996, p. 224:

Facts: L is a surgeon who rented services to Centre. Centre was not and could not have paid his fees
because of under Quebec law, it is the Regie de l'assurance-maladie that must pay doctors. Turns out K is
not valid due to lack of formality. Regie refuses to pay L. L was never paid and is suing the Centre for
unjust enrichment.
Issue: Can L sue the Centre for unjust enrichment? Held: NO
Ratio:
Chamberland: Centre cannot be held to have been enriched by the services of L since they are not
responsible for paying his professional fees.
-Si l'enrichissement des intims avait exist, il aurait t justifi lgislativement parce que la loi, qui est
d'ordre public, leur permet de recevoir des services gratuitement de l'appelant, ce dernier ne pouvant tre
rmunr que par la RAMQ.
-l'appelant a laiss se prescrire le recours l'arbitrage prvu par la loi et l'entente prcites.
-L'appelant bnficiait de tous les recours prvus par la loi et l'entente. Il ne peut corriger son omission
d'intenter les recours appropris en instituant une action pour enrichissement injustifi.
Lebel: Il y a eu enrichissement des intims puisque l'appelant leur a permis de remplir leurs obligations
l'gard de leur clientle. Cet enrichissement aurait mrit indemnisation si les autres conditions d'ouverture
du recours avaient t remplies.
Fish: L'appelant ne peut intenter le mauvais recours contre la mauvaise personne parce qu'il n'a pas su
exercer les recours mis sa disposition dans les dlais requis.

27
Franois Trottier v. Wibrod Trottier, QC CA, 1992, p. 230:
Faits: L'appelant a volontairement abandonn ses tudes l'ge de 17 ans et a commenc travailler la
ferme familiale sans autre rmunration que le logement, la nourriture, l'entretien de ses vtements et,
l'occasion, une maigre allocation. Aprs 14 ans de ce rgime, le pre de l'appelant a vendu la ferme au frre
de l'appelant. L'appelant s'est donc retrouv sans rien (ou presque rien). L'appelant poursuit son pre pour
enrichissement injustifi.
Dcision: Dcision en faveur de l'appelant, mais pas pour le montant total qu'il demandait.
Ratio:
-La condition de l'absence de justification dans le cadre de l'enrichissement sans cause doit s'apprcier en
fonction de la personne enrichie. En l'espce, l'enrichissement du pre est injustifi en raison mme du fait
que le fils n'a pas fourni sa prestation par pur esprit de libralit. Ainsi, c'est une erreur que d'appliquer le
test de l'absence de justification l'appauvrissement de l'un sans considrer l'enrichissement de l'autre.
Ainsi, le premire condition d'ouverture ce recours, et la plus importante, est que l'enrichissement ait lieu
sans juste cause.
-Toutes les conditions de l'enrichissement sans cause sont satisfaites et on aurait d faire droit l'action de
l'appelant.

Marianne Lecene-Marnaud, Le rle de la faute dans les quasi-K:

-La faute commise par l'appauvri l'empche, juridiquement, d'exercer l'action de in rem verso contre celui
qu'il estime avoir enrichi, parce que son appauvrissement se trouve causer par son comportement fautif. La
commission d'une faute par le demandeur prive celui-ci d'une indemnisation qui, sans cet cart de conduite,
eut t tenue pour lgitime.
-Double fonction remplie par la faute de l'appauvri, la fois punitive et moralisatrice.
-L'appauvri ne saurait se prvaloir de sa propre conduite pour tre indemnis d'un prjudice qu'il s'est, en
fin de compte, inflig lui-mme. De plus, la prise en compte de la faute de l'appauvri implique, en effet,
un jugement de valeur sur le caractre critiquable ou non du comportement de celui-ci.
-Certes la situation peut paratre injuste voire choquante puisque l'cart de conduite de l'appauvri en
neutralisant l'action de in rem verso, permet au dfendeur de conserver un enrichissement, qui, sans cette
faute, eut t sans cause.
-Le rle tenu par la faute de l'appauvri dans les quasi-K dpend donc, directement des rapports que cette
faute entretient avec la cause de l'appauvrissement du demandeur. Celui-ci est sanctionn parce qu'il a
commis une faute l'origine de son appauvrissement, tat qui bnficie, ainsi, d'une cause justificative.
Cependant, si une telle analyse satisfait la rigueur juridique, il n'est pas certain que l'quit y trouve
galement son compte.
Question: Jusqu' quelle gravit la faute sera telle excuse avant de nier le recours de in rem verso? La
faute doit-elle tre grave? Une faute mineure et insignifiante nie-t-elle un recours de in rem verson?

Conditions of UE Claim
1. Enrichment: must still exist at moment of claim; does not have to be in funds or
money; can be added value of property; enrichment can also be negative [expense or loss
avoided not having to level land oneself]; must sue enriched party [G would have had
problem if had sued municipality; Loungnarath this is crucial mistake because the
doctor sues the hospital, although it is the Regie that has been enriched because they are
ones that pay doctors].
2. Impoverishment: deficit in assets or lack of payment
3. Correlation: do not confuse with causation; there must be relationship between
enrichment and impoverishment [Trottier increased value of farm correlated to unpaid
work of son; Viger correlation can be indirect...can have correlation even when UE
caused by 3rd party...V benefited indirectly from work done by G for municipality].

28
The impoverished party will receive lesser amount of enrichment or
impoverishment [Trottier son did not recover amount he would have been
paid for all of his work, he just received amount of enrichment...the increase
in value of property].
4. Absence of Justification: this is the most difficult condition to satisfy; UE claim valid
only if enrichment unjustified.
1494 CCQ: Enrichment or impoverishment is justified where it results (a)
from the performance of an obligation, (b) from the failure of the person
impoverished to exercise a right of which he may avail himself or could have
availed himself against the person enriched, or (c) from an act performed by
the person impoverished for his personal and exclusive interest or at his own
risk and peril, or (d) with a constant liberal intention.
Enrichment is justified [and UE claim will fail] when results from:
a. from performance of obligation if K is valid must use recourses under K law cannot
use UE; A sells B car for $1000 when worth $5000...B is impoverished, A is enriched,
there is correlation, but K is the justification.
b. failure to exercise right or recourse UE is a subsidiary and equitable remedy. If the
plaintiff has/had another remedy [under K or XK] they cannot invoke UE. The classic
example is a prescription period if a K or XK action has been prescribed UE cannot just
be invoked. Sometimes it is obvious that there is another recourse, but if the non-UE
recourse is not relatively clear, then courts may allow action in UE. As well, the non-UE
recourse must offer some reasonable chance of success.
In Viger this was an issue. G started an XK claim against the municipality, but
abandoned it. Maybe G should have gone ahead with claim, but court says that
other remedy must be more apparent for subsidiary argument to succeed.
In Loungarath, the subsidiary argument works because plaintiff doctor could
have brought claim before Regie and if not satisfied with ruling could take case to
arbitrator.
c. act performed for personal interest or at own risk assumption of risk [if
impoverished part acts at own risk, but in Trottier not to be applied so strictly that
negates liberal intention condition];
d. liberal intention - if impoverish myself with donative intent, then there is justification
for enrichment; the impoverished party must prove that act was done with expectation of
future compensation this is difficult to prove.
In Trottier, it was argued that son should not succeed in UE because work was
done with donative intention. However, the son was able to prove that he
expected to be compensated, there was circumstantial evidence that father had
said something to this effect, and it is unreasonable to expect that he would have
worked for free for 14 years with no such expectation.
Can Fault be Justification?
Use of or in 1494 CCQ suggests that list of justifications is not exhaustive.
The big question is: Can fault be a justification? The basic question is whether fault on
the part of the impoverished is a justification for the enrichment of the other party? The

29
position taken in France is that fault is a justification for two reasons: (1) UE is an equitable
remedy and to have access must deserve it, and (2) fault breaks causation.
Was fault considered in Viger? Beetz does enquire if G is at fault [not checking validity
of Ks]; but fact that Ks null not imputable to G, but rather to municipality; also the illegality
was not so important or clear that G should have seen it; Beetz seems to imply that if apparent
that Ks are null could be considered at fault (could be related to assumption of risk).
Should fault be a justification? The character of fault is vague in this context. What does
fault mean? In XK sense? In K sense? The presence of fault offsets unjust character of
enrichment. Does the fault really justify the enrichment? No, but it may negate its unjust
character and the doctrine is called unjust enrichment.
A lot of this comes down to objective [rejection of fault] v. subjective [accept fault]
conception of UE.
If fault is a justification, what should the standard be? Should the most simple fault
be a justification? Some have argued that threshold for fault should be moderately high. As
well, if fault is accepted as a justification, the causation should also be relevant was fault the
direct and immediate cause of the impoverishment/enrichment.

Is the idea of fault implicit in other justifications? Subsidiarity impoverished is at fault

for not exercising other recourse; Liberal Intention in bring action in UE despite existence of
donative intent then at fault in a way; Risk and Peril RP would not have undertaken the risk so
impoverished party at fault;

Remedies: Assessment of Contractual Damages: Specific Performance

and Performance by Equivalence
-We'll look at remedies that are well settled, not those that may or may not exist or be available.
-SP really applies only to Ks. Nevertheless, material, bodily and moral injuries are covered by SP.
-SP CVL is quite different from SP in CML: refer to Golden Griddle and Argyll.
There is a stark contradiction between CVL and CML when it comes to remedies. Two cases
that are very similar, but that are resolved in very different ways are Golden Griddle [CVL]
and Argyll [CML].
The procedure that allows for SP injunction is of English origins. It developed in the
Courts of Equity and as a result SP has always been considered a subsidiary remedy in CML.
CVL initially imported the doctrine of SP with all of the CML rules/restrictions [i.e. damages
as primary]. However, this changed and now SP is clearly the primary remedy in CVL.
Jukier, "The Emergence of Specific Performance as a Major Remedy in Quebec Law", p. 237:
-Art 1065 CCLC (now art 1601 CCQ) specifies that a creditor may, 'in cases which admit of it', demand SP
of an obligation in addition to, or as an alternative to, damages. Similarly, art 751 CCP provides that, in
addition to a creditor obtaining an injunction enjoining the debtor not to do a particular act, he may, 'in
cases which admit of it', obtain an injunction enjoining the debtor to perform a particular act or operation.
-Courts have, in the past, been reluctant to grant SP, particularly in cases where the injunction would
require positive act. Why?
Traditional Restricted Ambit of SP:
-In theory, SP is classic CVL remedy. Most important, or at the very least as important, remedy as damages,

30
unlike in the CML.
-But courts generally have displayed a restrictive attitude towards SP. In fact, dominant judicial attitude in
Quebec has been to make damages the primary remedy and to ascribe to SP the restrictive ambit it receives
in the CML.
-One of the main reasons that Quebec courts have been reluctant to accord SP any pre-eminence is that
judges have been inclined to view the injunction under the CCP as a remedy borrowed from the CML, and
hence that they should look to CML principles for guidance.
-Jukier submits that this judicial attitude (SP as extraordinary remedy that comes into play only if damages
are inadequate), imported from the CML, is erroneous and should have no application in the law of Quebec.
Not only does it challenge the theoretical availability of SP as an equal, if not principal, remedy in the CVL,
it also falls foul of the oft-cited proposition that the choice of the recourse belongs exclusively to the
creditor (that is, the choice of remedy is only limited by possibility of said remedy, and a remedy is only
imposed by the courts when the choice of the remedy by the creditor is impossible or manifestly unjust).
Other factors (beyond copying the application of SP in the CML) that limit the granting of SP:
1. Nemo Praecise Rule: Primary reason given for the reluctance to order SP is that there is an
unwillingness to force a person to accomplish an act if the only way to do so is by physical
violence or constraint. This is seen as unduly interfering with personal liberty. Where the
constraint lies not with the person of the debtor but with his property, the rule is not seen to be
infringed. Refer to French principle of 'astreinte': pecuniary condemnation payable in the event of
the inexecution of the principal obligation of the debtor. In this context, Quebec courts have in the
past held that SP is not an appropriate recourse except where SP by equivalence, i.e. performance
by a 3rd party, is possible.
2. Dichotomy between Enforcement to do and those not to do: Judiciary created this illogical and
artificial dichotomy. Traditionally, perception that obligation not to do is less offensive to nemo
preacise. This is wrong, because just as much personal action can be required not to do something
as to do something (for ex: injunction ordering a debtor to cease violating a K stipulated noncompetition clause) + often difficult to classify obligations as one or the other (obligations not to
do can easily be reformulated as obligations to do, and vice-versa).
3. Problems of supervision: Picked up by CML: too much effort is required to ensure that obligation
is fulfilled, then not advisable to require SP. This is no good, cause usually can define obligations
quite clearly. As long as the obligations are sufficiently defined, supervision will not stand in the
way of an order of SP
4. Civil imprisonment: SP brings thru backdoor imprisonment for civil matters (if debtor does not
respect obligation to do, then is in contempt of court and susceptible of prison). Strictly speaking,
it is not the breach of SP that brings imprisonment, it is the disrespect of a court order.
-Proprit Cit 2 is evidence of a definite move away from the traditionally restricted ambit of SP in
Quebec law.
-NOTE: Nemo praecise rule is not infringed when the order sought is against a corporate body. The
problem of respecting human liberty is not encountered when the court orders a corporation, rather than a
specified person, to carry out an obligation. The argument that ordering a corporation to execute an
obligation indirectly infringes the nemo praecise rule applies only in 2 limited circumstances:
1. Where the relevant corporation is a closely held corporation and it would be reasonable to pierce
the corporate veil.
2. Where only a small number of persons are able to carry out the corporation's obligations, due to its
highly specialized nature.
-Final observation: on a practical level, an order of SP will often be a better remedy for the creditor. A
creditor taking an action in damages usually must wait a long time for his damage award, whereas an
interlocutory injunction can produce fairly immediate results.

Compagnie de Construction Belcourt Lte v. Golden Griddle Pancake House Limited, QC CS,
1988, p. 245:
Faits: Owners of a shopping centre want to force a tenant to respect her lease. Obligations to occupy the
premises rented on a continuous basis and re-open the restaurant that she closed on account of the lack of
business she experienced. Tenant is asking for the cancellation of the lease.
Question: If the lease is not deemed invalid, can the owners request SP? Dcision: Yes, SP is granted.

31
Ratio:
-La preuve de fausse reprsentations est nettement insuffisante pour justifier la demande d'annulation du
bail.
-Bien tabli que les parties un bail sont en droit d'en demander l'excution en nature dans les case qui le
permettent, et le manquement une obligation ne peut donner droit seulement des dommages.
-La fermeture du restaurant de la dfenderesse aura un effet sur l'atmosphre du centre commercial et sur
les ventes ralises par les autres locataires. D'autre part, la dfenderesse ne pouvait tre libre de son
obligation d'exploiter un restaurant dans le local lou au motif que ses revenus taient insuffisants.
-La dfenderesse avait pleinement connaissance du cot que reprsentaient l'ouverture et l'exploitation d'un
restaurant lorsqu'elle a sign l'offre de bail et le bail. La dlivrance de l'injonction n'a pas pour effet de
causer un prjudice un tiers.

Co-Operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., House of Lords, 1997, p.
252:
Facts: Pf granted def a lease of one of the units in a shopping centre to operate a supermarket. The lease in
clause 4(19) contained a covenant to keep the premises open for retail trade during the usual hours of
business in the locality. Supermarket was the biggest store in the shopping centre and the biggest attraction.
Def decided to close some of its less profitable supermarkets, including the one in the shopping centre.
Closed the supermarket and removed all the fixtures and fittings. CA allowed pf to get SP
Issue: Can the pf required the def to maintain their supermarket, can they get SP? Held: NO
Ratio:
-Settled practice of the court not to grant a mandatory injunction requiring the carrying on of a business was
soundly based at trial.
-Def might suffer far greater loss by having to comply with the order than the pf would suffer from the K
being broken, thus putting the pf in an unjustly favourable bargaining position.
-Def's obligation in clause 4(19) of the lease was not sufficiently precise to be capable of SP and the judge
had been entitled to exercise his discretion as he had done.
Comment: Essentially saying that where damages are available, can be ascertained, are not too onerous,
and can satisfy need of compensation, SP will not be granted.

Didier Aubrais v. Ville de Laval, QC CS, 1996, p. 256:

Faits: Aubrais veut devenir policier Laval. Aprs tests physiques et psychologiques, il signe avec Ville
une promesse d'embauche. L'une des clauses du K stipule que "Mme si l'aspirant policier conventionnel
remplit les conditions numres, la ville n'aura aucune obligation de l'embaucher si une enqute rvle des
motifs srieux de ne pas retenir ses servies comme policier recrue." Ayant appris que Aubrais avait fait une
tentative de suicide, la ville dcide de ne pas l'embaucher.
Question en litige: 1) la dcouverte d'une tentative de suicide est-elle suffisante en tant que motif srieux
pour ne pas donner suite au K?, 2) si non, Aubrais peut-il demander SP (tre embauch?)
Dcision: 1) NON, 2) OUI
Ratio:
1) Ville considre que la non-divulgation de la tentative de suicide tait une chose "inacceptable" qui brisait
le lien de confiance entre le promettant et le titulaire de la promesse. En est-il ainsi?
-Le questionnaire auquel Aubrais a d rpondre posait la question: "Avez-vous ou avez-vous dj eu des
troubles ou accidents du type: psychologique (psychose, dpression, burn-out)?". Peut-tre une tentative
de suicide peut-elle tre incluse dans la dfinition de dpression, mais le terme demeure vague et gnral.
En choisissant un terme aussi gnral, la Ville ne pouvait escompter des rponses plus prcises que celles
que fait un candidat en toute bonne foi et au meilleur de sa connaissance. La rponse de Aubrais ne peut
donc pas tre considre comme une fausse dclaration.
-Tests psychologiques suggre que Aubrais est OK, et donc l'ignorance de la Ville de la tentative de suicide
n'a pas vici l'intgrit du consentement, et la tentative n'est pas raison justifiant le non-respect du K.
2) Dans le CVL, le choix du remde appartient clairement au crancier (art 1590). Cependant, l'art 1601
limite la facult d'exiger l'excution en nature aux "cas qui le permettent".
-Selon la position traditionnelle, le droit du crancier l'excution de l'obligation ne peut se rsoudre que
par des dommages-intrts lorsqu'il s'agit d'une obligation de faire, notamment en raison du caractre
intuitu personae de l'obligation.

32
-Bien qu'il y est lieu de reconnatre le caractre intuitu personae de la situation (K d'embauche et lien de
confiance ncessaire entre l'employ et l'employeur), la taille du service de police de Laval fait diminuer ce
caractre. De plus, l'excution en nature de celle-ci n'exige pas une intervention personnelle du SPL trs
pousse; il lui suffit de fournir au demandeur la possibilit de travailler. Enfin, l'excution en nature est
beaucoup plus adquate parce qu'elle seule permet d'assurer une rparation intgrale du prjudice subi par
le demandeur du fait de l'inexcution de l'obligation de la Ville.

Origins of SP and The Code

CML:
-Tool to enforce SP is a CML tool: injunction: court of equity remedy.
-force someone to do or stop doing something thru an injunction
-Only when the CML remedy (usually damages) was considered inadequate. Thus
injunction is an alternative, subsidiary remedy to damages (exceptional remedy).
-NOTE: courts of chancery were the courts of equity.
CVL: Quebec:
-when decided to import the tool of injunction: favour the award of damage and perceive
injunction (and by default SP) as a secondary remedy: blind adoption, total transplant of
CML concept and its application within Quebec CVL
-but as Jukier notes: no need to adopt lock, stock and barrel: can adapt the remedy (or any
other legal tool) so that it fits better in the legal structure.
-Aubrais: Baudouin J: "Just because remedy is historically a CML remedy does not mean
that we must follow restrictive approach of CML."
-IN CVL: place of SP has always been as the primary remedy: notion of pacta sund
servanda: le respect de la parole donne: in the spirit of the foundation of K law in CVL,
it is only normal that the primary remedy would have been something to force the party
in breach to fulfil the obligations that it willingly accepted.
1590 CCQ: (P1) An obligation confers on the creditor the right to demand that the obligation
be performed in full, properly and without delay. (P2) Where the debtor fails to perform his
obligation without justification on his part and he is in default, the creditor may, without
prejudice to his right to the performance of the obligation in whole or in part by equivalence,
(1) force specific performance of the obligation; (2) obtain, in the case of a contractual
obligation, the resolution or resiliation of the contract or the reduction of his own correlative
obligation; (3) take any other measure provided by law to enforce his right to the performance
of the obligation. (This article also existed in CCLC)
1590 CCQ indicates the clear conceptual priority of SP (1) primary remedy; (2) remedy of
right of creditor; (3) remedy of choice if SP inefficient and/or problematic can ask for
damages.
Creditor thus has the choice of the remedy.
1601 CCQ: A creditor may, in cases which admit of it, demand that the debtor be forced to
make specific performance of the obligation.
in cases which admit of it this qualifies primacy of SP as remedy. It could just refer to
impossibility in certain circumstances can only get SP when possible.
Is it remedy of right? Parties voluntarily create binding obligations; idea suggests that SP is
remedy of right as long as K is valid; does not makes sense that can replace obligation with
damages.

33
Aside from impossibility, the qualification of SP indicates that there are certain cases in which
it would be totally inappropriate to order SP. The most obvious situation is very personal
service Ks (intuitu personae) where identity of person is crucial to K; these situations would
require violence in order to achieve SP.
Same limitation in CCLC: 1065. Also 751 of CCP
-Main limitation on SP: nemo praecise cogi potest ad factum: it is not right to physically force
someone to perform an obligation: law will refuse to impose physical force, physical violence on
the person of the debtor.

Concepts Used to Restrict SP

1. Obligation to do [mandatory injunction] v. obligation not to do [prohibitive
injunction].
The suggestion is that mandatory injunctions are problematic because they involve a positive
violation of individual liberty
The distinction between these two is often illusory: Jukier criticism: the distinction is artificial
(often a question of semantics), individual liberty at stake in both cases, jurisprudence often
grants orders of SP (Aubray, Golden Griddle).
This distinction/argument has lost must of its force except when it comes to very personal
service Ks (intuitu personae). Unless the actual identity of the person is crucial to the K, SP
will be ordered and justified on basis that debtor can sub-contract work.
EX given in class: Boivin conductor tries to force orchestra to rehire him. The potential order
could be described as order to rehire B or order not to hire anyone else. [2] Commision des
Droits injunction to allow women to play on hockey team. The potential order could be
described as order to allow women to play or order not to discriminate on basis of sex.

2. Corporate defendants v. individual defendants

Closely related to first distinction because when debtor is individual person the same concerns
about violation of liberty are at stake. In this context, the distinction is actually more valid
because when an order for SP is issued against a company there is less chance that the order
will violate the liberty of an individual [although this may depend on size of company]. In the
case of corporate defendants, often the order does not require a specific person in the
corporation to perform, but this must be qualified by the nature of the work: might require
specific skills only possessed by a certain employee.
Golden Griddle: owner of mall wants GG to reopen; court orders GG to reopen restaurant;
court does not see problem with order to do because imposed on company.
Aubrais: Court orders Laval to give back promise to hire [essentially force them to hire
Aubrais]. The court suggests that there is no problem with this order to do in terms of
individual liberty because of the size of organization and the fact that it is a corporation rather
than another individual.

Super Duper: SD is a very small company [owner and 5 employees]. SD installs wrong size
lockers at McGill. McGill seeks order of SP to force SD to remove lockers and replace them with
the ones ordered. Fictional court refused to order SP small size of company would amount to a
violation of individual liberty. Is this a good decision? Not bad, but others things to consider: (1)
SD could sub-contract work; (2) this is clearly a case where damages wont fix the problem; (3)

34
SDs hardship argument not likely to succeed; (4) focus is supposed to be on creditor in these
cases.

3. Problems of supervision

SP refused if court would not be able to structure the order with enough supervision to be
capable of having it enforce without the court's supervision. CML is very aware of this
difficulty, but CVL feels that if order can be framed in sufficiently clear/specific terms, then
will not consider issue of supervision problematic.
Argyll: CML court draws distinction between SP orders of result and SP orders to carry on a
business the latter being particularly difficult to enforce and supervise, and may result in
repeated applications for rulings on compliance. Court refuses to grant order of SP. Here there
must be a consideration of the fact that the company might do a 1/2 ass job because it does not
want to be open.
Golden Griddle: this same issue of supervision and compliance came up in GG. The CVL
court simply says that if the order can be framed with some precision, then supervision and
compliance problems will not defeat an application for SP. In GG, there was no problem with
making a precise order GG is a franchise and can simply say that service must be on par
with other locations and same as before closing.

4. Hardship

Debtor can raise hardship argument: basic argument: if I perform, it's going to cause me too
many hardship.
In CML, this argument was considered and accepted in Argyll
CVL prioritizes interest of creditor and in Golden Griddle the court is not moved by the
hardship argument. Hardship is essentially irrelevant unless performance is actually
impossible. Furthermore, GG was aware of the costs of running the restaurant and could have
a fair notion of the profits it could make when it signed the lease; this being so, it can't just
back up and say "costing too much for me to stay open".
GG: "It is specious to suggest that courts should refrain from enforcing Ks if the def will lose
money as a consequence. Judicial intervention is rarely necessary to enforce Ks which will
yield a profit to the defendants."

Loss of Chance
L. Khoury, Uncertain Causation in Medical Liability, p. 300:
-Courts are often satisfied with a high probability of existence of causation: this is reflected in the all-ornothing rule: if requirement of proof of causation is met, the pf can recover the whole of his damage even if
there remains a possibility that the def has not caused it. Otherwise, compensation is not awarded.
-Some have suggested an alternative: proportional recovery: if it is established that there is a 40%
probability that the def's negligence was the cause of the pf's damage, the pf may recover compensation for
40% of his damage. Loss of chance is best known expression of this principle: concept has the clear
advantage of allowing the pf to recover at least part of his damage despite the uncertainties surrounding
causation, while holding the def liable only for a portion of the loss, based upon the extent of his causal
responsibility for it.
-Classic LOC cases: lottery ticket, beauty pageants, horse racing etc: def's negligent action or omission
crystallises the pf's situation, and the pf is thereby altogether prevented from taking the chance.
Consequently, the hoped for result remains forever hypothetical. IN such a scenario: the chance is
calculated on the basis of the probability of realisation of the expected result, and consequently the pf
receives compensation for only a portion of his injury.
-Only France currently accepts to compensate patients for their loss of chance of survival or recovery,

35
Quebec and Canada quite hostile to the idea (rejected by SCC in Laferriere), because it is felt to bypass the
causation requirement (here the LOC argument was rejected because there was no proof that the treatment
the patient lost the chance to undertake would have had a positive effect on her health).
-NOTE: Cour de cassation has criticized decisions granting full recovery of the final damage.
-A first ground for distinguishing between the medical and classic situations resides in whether or not the pf
had the possibility of taking the chance: the medical fault decreases the pf's chance of recovery, but the pf is
not prevented from taking the chance. The chance is exhausted and the result is no longer hypothetical.
Argument is that the concept of LOC has no role to play where the chance has been taken and the final
outcome fulfilled.
-IN the medical context, the application of LOC: the uncertainty flows not from the hypothetical nature of
the loss but rather from the fact that it is unknown whether the pf would in fact have fallen into the lucky
category of those who would have benefited from a positive outcome: blurs the line of causation between
def's action, and the actual consequences taking into consideration all other factors.
-In medical context, substituting loss of chance not to die or to be cured for the actual damage allows
compensation to be granted even if the def's negligence is not shown, under the traditional principles, to
have caused the death or absence of cure.

Laferriere c. Lawson, 1991, SCC, p. 263:

Facts: Doctor removes lump from breast of woman (pf). Lump is cancerous, but doc does not inform
woman of this fact. Eventually pf is made aware that she has cancer and undergoes numerous treatments.
Pf, before dying, brought an action against doc for negligence.
Issue: Pf claims 1) damages for anguish and frustration, 2) loss of chance (here of survival).
Held: 1) YES, 2) NO
Ratio:
Lamer (and 5 others):
1) Pf claim for anguish and frustration must be accepted. Appellant's fault was directly related to the great,
unnecessary psychological stress pf faced upon learning that she had gone four years without knowing of
her cancerous condition and without undergoing the follow-up, monitoring and treatment that was
appropriate in her case.
2) Loss of chance analysis used to support the claim for damages for physical pain and suffering and
premature death is inappropriate at least in cases where death or sickness has already occurred. In such
cases, classical principles of causation suffice and are essential in order for individual responsibility to
attach.
-Medical (and more generally legal) causation is not the same as scientific causation: must be established
on the balance of probability.
-In the case at bar, pf could not prove that doc's misdiagnosis was responsible for her cancer: thus could not
sue for damages on basis of doc causing her death. However, while the doc's fault cannot be said to have
cause the death of pf, pf nevertheless experienced a type of psychological suffering directly related to doc's
failure to inform his patient of her condition. Further, doc's failure to follow up on his patient probably
denied pf the benefit of earlier treatment which would have translated into some real improvement in her
condition, and this deprivation should be recognized and compensated.
LaForest (dissenting): CVL recognizes that the damage resulting for loss of chance is compensable in this
case.
Comments:
-The problem in this case is that we dont know if pf would have died regardless of misdiagnosis or if
earlier detection would have saved her. Basically we dont know if the cause of her death was the MDs
fault or cancer.
-Court rejects the claim on the basis of causation - we dont know if she really lost a chance of survival as
result of MDs fault because she may have died anyway. Court does award damages for suffering.
Trial rejected LOC
Appeal LOC accepted
SCC reversed CA; refusal to accept LOC based on fact that losing LOC would allow court to
ignore fact that causation not proven. Plaintiff did get some compensation for anguish and
frustration (moral damages).

36
Cour de Cassation, 7 juin 1989, p. 310:
Faits: Suite une opration chirurgicale, le pf s'est trouv afflig d'une paralysie faciale avec troubles
oculaires. Cour d'appel a juge que le mdecin n'avait pas commis de faute opratoire, mais qu'il avait
manqu son devoir en n'informant pas le pf qu'il devrait subir une autre opration d'urgence, au moment
o il existait encore une chance raisonnable d'une amlioration partielle. La cour a allou au pf des
dommages-intrts en rparation du dommage rsultant pour lui de la perte de cette chance. Ultrieurement,
lorsque la situation s'est aggrav, le pf a fait une demande de compensation supplmentaire. Cour d'appel a
refus.
Question: le pf a-t-il droit une compensation supplmentaire?
Dcision: OUI. La perte est fonction de la gravit de l'tat rel du pf, de sorte que l'tendue du dommage
ainsi subi par le pf pouvait se trouver modifie par l'aggravation de son incapacit, et que sa demande de
rparation complmentaire tait recevable.
-L'aggravation de l'tat rel du patient, puisque ce dernier constitue le point de repre autour duquel va
graviter la notion de chance perdue, aura donc ncessairement une incidence sur celle-ci et doit permettre
la victime d'obtenir une indemnisation complmentaire.
Commentaires:
-Notion de perte de chance se rattache la dtermination d'un prjudice propre, distinct du prjudice final
subi par la victime. En l'espce, ce qui est compens n'est pas la paralysie, mais la chance perdue d'avoir
une opration pouvant amliorer la paralysie.
-Perte de chance: pour tre pris en considration par la cour, la jurisprudence insiste sur l'aspect rel et
srieux de la chance.
-Il faut tablir la preuve de l'existence de ce dommage spcifique au moyen de prsomptions. L'existence
mme de ces prsomptions dpendra du degr de probabilit de la chance perdue.
-LOC reprsente une approche spcifique de la causalit. Ce dernier est ncessairement empreint d'un degr
d'incertitude. Le juge doit avoir recourt la probabilit, et si l'opinions d'experts conduit la vraisemblance
de la probabilit, alors le juge peut faire la prsomption.
-La jurisprudence refuse de faire application de la causalit partielle. Il suffit qu'un fait, fautif ou non, soit
partiellement la cause d'un dommage pour que celui qui en rpond soit condamn rparer l'entier
dommage.

-How are damages calculated in cases of LOC: lack of info made pf lose 25% chance of recovery.
So compensated for 25% of the injury. Similarly, in a case where the LOC applies to a possibility
of improvement, then the compensation is a proportion of the possible improvement. It may be
more difficult to calculate the amount that represents the compensation, but could do it in terms
of reduced cost of treatment in light of improvement.

-NOTE: loss of chance is different in Quebec and in France

-Traditional Application (accepted)
Ds fault led to:
Loss of advantage or benefit;
Loss of chance of obtaining advantage or benefit.
-Medical Liability (not accepted)
Defs fault led to:
Death, absence of recovery, physical injury;
Loss of the chance of surviving, of recovery, of avoiding injury.
Main reason people defend loss of chance argument is that it avoids the injustice of the all or
nothing approach.
Resemblance between loss of chance and arguments based on increase of risk: increasing risk
of damage = making someone loose chance of avoiding damage. At least with loss of chance
recovery is partial, and burden on plaintiff is limited.

Civil Law Rules Re. Causation

37
Civil responsibility requires proof of fault, causation, and damage.
Causation in law must be established on the balance of probabilities, taking into account all
the evidence: factual, statistical, and that which the judge is entitled to presume.
In some cases, where a fault presents a clear danger and where such a danger materialises, it
may be reasonable to presume a causal link, unless there is a demonstration or indication to
the contrary.
Statistical evidence may be helpful as indicative but is not determinative.
Even where statistical and factual evidence does not support a finding of causation on the
balance of probabilities with respect to particular damage [death or sickness], such evidence
may still justify a finding of causation with respect to lesser damage [slightly shorter life or
greater pain].
Deprivation of a real and probable [as opposed to possible] improvement in quality of life as a
result of the defendant's fault should be recognised and compensated.
-In cases where the only damage is the loss of a chance (Greg couldnt get to beauty pageant
because of Mariam so he didnt win pageant), then you can claim loss of chance. There is no
issue of causation because it was obvious that Gregs damage (loss of chance) was caused by
Mariam.

Why do we care about LOC?

Loss of chance is a head a damage a type of injury for which we can claim. You can
claim in X-K and in K.
Even in France, where LOC is accepted, it has generated a big debate
LOC is a good example of the fact that there is no unified civilian approach, because
the approach to LOC across civilian jurisdictions varies a lot.

Evidential Problems for Injuries and Causation

-LOC: used to face uncertainty as to injury and causation: LOC is only interesting for the pf when
the balance of probability cannot be met
Injury:
-Example of LOC: A asks B to buy him a lottery ticket, B agrees, but doesnt do it (breach of K).
We are sure that A didnt win the lottery because B didnt buy the ticket, but we dont know what
the loss is because there is no way to know if A would have won the only way to assess the loss
is to say that A lost a chance to play the lottery. If A had a 1% of winning $2000, his loss is $20.
The value of the chance that was lost is $20, so $20 is the measure of As loss.
-In this example, there is no problem assessing fault and causation, there is a difficulty in
determining the loss however. There is thus a need to calculate the injury in a situation that is
uncertain.

-Causation: difficulty arises when we are unable to make a clear link between the fault and the
injury, because there are other possible causes that could have provoked the injury; injury might
flow from fault, but we cant be sure.
E.g. There is a 40% chance that def has cause pf's injury
Balance of probabilities not met
Can pf get 40% of the total value of his injury?
Normally, causation has to be proven on a balance of probabilities existence of
causation has to be more probable than its non-existence (2804 CCQ); if we can reach >
50% causation, Pf can recover for the full amount of the loss. This is the all or nothing
rule.

38
Laferriere: Did she die because she had cancer, or because cancer was not diagnosed by
MD? Very difficult to prove on balance that it was because of misdiagnosis.
LOC can be compensated only if it is considered real and serious.
Examples:
Lawyer lets limitation period lapse on really good claim: pf losses possibility of claiming
in court. Pf cannot claim lost the case (never tried it: this is X). Pf can say that lawyer
made him lose the chance of winning the case (this is Y).
Greg was supposed to participate in beauty contest, but he cant because Lara keeps him
late in class. Greg cannot say that Lara made him lose the contest (X), but can claim that
Lara made him lose the chance of winning the contest (Y).
Lara injects valium into my horse, so my awesome horse could not even participate in
race.
Why are these cases controversial? Other factors to take into consideration: talent of the
lawyer, ability of the horse to win the race, whether Greg can actually enter the contests
etc.
-Distinction between these cases and the lottery example makes it that the above examples are not
real loss of chance claims. Lottery ticket cases are the only cases where it is absolutely impossible
to assess whether A would have won it is completely random. In the other examples, winning is
less clearly based on chance, because it is possible to assess what would have been the result if
the chance had been taken. For example:
There were 10 participants in pageant, so at first glance it appears that G would have had
a 10% chance of winning. But must look at in more subjective manner. Considering that
G is a man in pageant for women results in a chance that G will win to be .000001%.
Court will assess real or actual chances. If plaintiff's chances [of actually winning] were
> 50%, you grant full recovery; if chances were < 50%, you grant nothing.
In cases where outcome is not random, damage is not the lost chance, but rather it is the
loss of the ultimate benefit (X), and by assessing all the relevant factors, the ct can
determine whether the pf could have reached the benefit. Per Gonthier J. the only true
cases of loss of chance is where outcome is completely random.
Majority of doctrinal writers treat the above examples as loss of chance, but Gonthier in
Laferriere does not agree.
-This is why SCC (Gonthier) argues that only real LOC is lottery scenario or where chance of
receiving benefit were entirely random; all the other examples are just causation problems.
However doctrinal writers accept other types of LOC claims.

Summary
LOC is a head of damages that can be claimed where there is:
A problem of defining the injury, OR
A causation problem: it cannot be proven, on a BOP, that the defs fault led to the pls
injury.

Moral Damages
In PQ heads of compensation are broken down into three categories: bodily, material, moral
[1457/1607 CCQ]

39
Moral injury is most difficult head of damage to evaluate. The principle of RI applies to
moral injury, but very difficult to evaluate: (1) hard to attribute monetary value to moral injury
and (2) assessment of damages will therefore be arbitrary.
Donna Benedek, "Non-Pecuniary Damages: Defined, Assessed and Capped", p. 313:
-NP damages: in CML terms: intangible, lack market value. In CVL: extrapatrimonial loss to one's bodily
integrity that has no effect on one's patrimony.
-Consensus on approach (functional) and cap to recovery (100 000$) via SCC trilogy. Note that cap appears
incompatible with functional approach which seeks to provide the victim of personal injury with solace for
his/her misfortune.
-SCC trilogy: Andrews, Thornton, Arnold
-IN CML, non-pecuniary damage consists of
1. Pain and suffering (emotional distress) (recovery for this is debatable cause no method of
objectively assessing pain)
2. Loss of amenities: physical disability and affect of this disability on scope of victim's activities.
Traditionally, both past and future anguish over lost amenities is compensable.
3. Loss of expectation of life, complete loss of pleasure of living during the period the victim would
have lived if not for the accident.
-IN CVL: moral or extrapatrimonial damages include sufferance, harm or injury caused to one's reputation
and honor, disgraces and physical deformities, suppression of pleasures and satisfactions which life can
provide to those who are mentally and physically healthy, and frustrations of all kinds.
CML position on NP damages: approach:
-Unlike material or economic damages, NP damages cannot be compensated solely based on the principle
of restitutio in integrum, since court cannot command the def to restore the victim's eye, leg or any other
lost limb (for ex). Furthermore, the suffering experienced by the pf cannot be erased.
-In Andrews: evaluation of NP damages is more of a policy and philosophical exercise than a logical or
legal one. Sum awarded must be essentially arbitrary or conventional, and social burden of large awards
must be of considerable importance when assessing the amount to be awarded under this particular head of
damage.
-Following Andrews, search for solace thru the acquisition of goods and services became the aim of the
compensation of NP damage in accordance with the functional view. Damages are now evaluated on the
basis of the sum of money with which the pf can be provided with reasonable solace. The heading of NP
loss essentially compensates for a single loss, being mental distress, and, therefore, adopts a global sum as
the method of distributing the award.
-Sum awarded should be modest since the victim has already received indemnification for the pecuniary
losses and because the award for NP damages is not compensatory in nature.
-For unaware victims, based on the functional approach, since there is no anguish and consequently no need
for solace, no award should be provided.
-NOTE: English law adopts the conceptual approach.
-NOTE: from actual cases, it appears that even where there are no sign of cognitive response, a small award
for NP damages for loss of amenities is granted. Thus SCC preference for functional approach has not been
applied consistently without criticism in its pure form.
-Cap on NP damages for personal injuries in CML: 100 000$ (in 1978 $). Why? Want to avoid the situation
in the USA, where awards have climbed to incredibly high levels, which is immense social burden. Plus
victim is already compensated for pecuniary interests, so that NP damages should not be too high.
CVL position on extrapatrimonial damages:
-No unanimity in terms of which approach should be adopted.
-IN Quebec, the primary function of the rules of civil liability is to compensate for prejudice suffered. This
is regardless of whether the victim is capable of enjoying substitute pleasures (as under the functional
approach in CML).
-Ultimately, the only approach (choices are functional, personal and conceptual) for justifying NP damages
which must be rejected is the conceptual approach because of its uniform employment which
depersonalizes the process of evaluation of these damages.
-SCC in St-Ferdinand settled an outstanding issue in CVL, namely whether the victim need be aware of
the injury in order to be eligible for compensation: "objective characterization of moral prejudice in

40
Quebec", non-pecuniary damages are thus recognized independent of the victim's awareness of the loss.
Thus damages are here awarded on an objective conception of the loss, not a subjective awareness of it.
-Generally speaking, the CVL in Quebec recognizes (or is not hostile to) the capping of the limit to
compensation available for personal injuries in NP or extrapatrimonial cases. In this context, refer to
Letarte trilogy at p. 325.
-Note that while the cap has been applied by both Superior and Appeals court in Quebec, there has been no
formal introduction of the cap.
-Problem with the cap: something of an objective significance has been lost in situations where the damage
incurred has caused the victim to have a decreased ability to appreciate life, and yet this loss cannot be
improved by any physical arrangements. Also, in terms of the functionalist approach (where compensation
is paid so that the victim can find solace), the upper limit cap might be inconsistent, because such a cap
might not be sufficient to meet the goal.
-NOTE: Another consideration for why the cap might be problematic is that a similar cap does not exist for
defamation cases. Some have argued that a similar cap should be introduced (as per Lamer in CVL case of
Snyder). Reasons that suggest a cap should be introduced in defamation cases:
1. Freedom of expression should be protected (no cap, people reluctant to publish)
2. Temporary nature of the loss endured
3. Alternative remedies to lessen negative effect of defamation (such as public apology, retraction
etc)
-In light of the above, either a cap should be introduced in cases of defamation, or no cap should be present
in cases of NP damages.
Conclusion:
-Above principles have been applied to personal injury cases in Quebec by both the superior and
appeal courts. The end result is thus similar in both common law and civil law cases in terms of
awards for non-pecuniary damages.
Qubec (Public Curator) v. Syndicat National des employs de lHpital St-Ferdinand (appellants), SCC,
1996, p.
Facts: Employees of St-Julien Hospital participated in illegal strike for a total of 33 days. 650 of the 703
mentally challenged patients were represented by the Public Curator who launched a public action suit.
Appels contend that functional approach to evaluating damages requires that for damages to be assigned,
the person receiving the damages must be able to use them in order to compensate for his/her lost; persons
receiving damages must be able to derive satisfaction from the damages. Such would not the case here as
the patients are mentally challenged.
Issue: What is the role the functional approach plays in evaluating moral prejudice in Qubec civil law?
Held: Appel motion denied, patients get damages.
Ratio:
-Quebec CVL: primary function of the rules of civil liability is to compensate for prejudice: the reason that
damages may be recoverable is not because the victim may benefit from them, but rather because of the
very fact that there is a moral prejudice. This supports the conception that the right to compensation for
moral prejudice is not conditional on the victim's ability to profit or benefit from monetary compensation.
-In Qubec, the functional approach is not the approach that is favored in evaluating the right to moral
damages.
-Functional approach is more prevalent in CML. In CVL jurisdiction of Qubec, right to compensation for
moral prejudice is not conditional on the victims ability to profit or benefit from monetary compensation.
-All three approaches (personal, functional and conceptual) are relevant in terms of determining the amount
of damages a pf is entitled to claim: they combine to encourage a personalized evaluation of the moral
prejudice.
-Concept of inviolability that is protected by Quebec charter (s 1) suggests that an infringement of this right
must be serious and have long-term consequences. Not the case here, as the patients suffered 'minor
psychological distress'. However, the right to personal dignity, protected under s.4, does not require that
there be permanent consequences in order for interference to be found.
-Since second para of s. 49 of Quebec charter provides that in cases of intentional and unlawful interference
with a right recognized under the charter, a tribunal may condemn the person guilty to exemplary damages.
-NOTE: Even where unlawful and intentional interference exists, the award and the quantum of exemplary
damages remain discretionary, even if discretion is not absolute (guided by various factors developed by the

41
courts and now codified in art 1621 CCQ.
Comment: While functional approach is not the approach favored in Qubec in order to assign damages, it
is nevertheless relevant when it comes to the calculation of such damages.
-There was here no physical injury; rather the injury was to the patients dignity (this brings in the issue of
the difficulty in translating intangible injuries into monetary terms)

Gloria Augustus (appellant) v. Communaute Urbaine de Montreal (respondent), SCC,

1996, p.
Facts: The victim, the plaintiffs son (Anthony Griffin, who had an arrest warrant against him), was
mistakenly shot in the head by a police officer, Allan Gosset, while trying to escape from custody and died
a few hours later. The mother is claiming damages for interference with right of parenthood; she wants
more damages than were awarded by lower courts: claims damages under solatium doloris.
Issue: Whether solatium doloris (a moral damage) is compensable under Quebec law. Whether Qubec
Charter of Rights and Freedoms or Canadian Charter of Rights and Freedoms protects right to maintain
and continue parent-child relationship, whether to recognize compensatory damages for the loss of life and
life expectancy.
Held: Appeal allowed in part. - No compensation for interference with sons right to life Compensation
for loss of support - No compensation for loss of life expectancy (victim died and can no longer feel a
shortened life No compensation for pain and suffering (victim died instantaneously).
Ratio:
-Solatium doloris is a compensable moral prejudice in Quebec civil law. In assessing it, the court must take
into consideration factors such as circumstances of death, age of deceased and parent, effect of death on
parents life, etc
-Neither Canadian Charter of Rights and Freedoms nor the Quebec Charter protects the right to maintain
and continue a parent-child relationship
-Right of life extinguishes when victim dies and cannot become part of a victims patrimony nor be
transferred to his heirs + it is extremely difficult to quantify life after death + victim will not benefit from
compensation.
Comment:
-Here the mother was bringing the case on behalf of her deceased son and on her own behalf for the
personal losses (grief and anguish and loss of financial source) that resulted from his death. The damages
claimed for her son were essentially denied, what was recognized were the damages for her claims.

Moral Damages in Personal Injury Claims

[1] Admissibility
Is it possible for victim to claim moral damages even when victim does not subjectively
realize that he/she is suffering from moral damages? This question comes up where victim
has died instantly and cases where victim is mentally deficient. Three possible approaches:
(a) Conceptual: objective conception; each faculty has objective value independent of usage or
pleasure of the faculty. The consequence of this is that victim is entitled to compensation
regardless of whether he/she is actually aware of suffering [ St.Ferdinand]
(b) Personal: measure loss on basis of loss of pleasure/happiness for specific victim. If the
victim cannot subjectively appreciate the injury, then he/she cannot claim moral damages.
(c) Functional: seeks to provide solace to victim. This approach is subjective in that if the
victim does not appreciate the injury then he/she cannot be provided with solace, and will not be
entitled to compensation.

[2] Calculation + Cap

In theory all three approaches personal, conceptual, and functional used to calculate the
quantum of moral damages [St.Ferdinand] in Qc.

42
In Quebec, the courts start to calculate with functional approach and then will use personal
approach for adjustment. Quebec courts do not really employ the conceptual approach.
Cap: Limit to moral damages as result of 1978 Trilogy [Andrews Trilogy]. The cap was set at
100,000 and with inflation now equals roughly 400,000. The cap is imposed for policy reasons
and justified because: (1) calculation is necessarily arbitrary, (2) avoid type of claims that are in
US, and (3) there is no cap for pecuniary damages and so RI still possible with cap.

Moral Claims in Defamation

-Defamation is one of the many forms that moral damages can take.
-Defamation is an X-K topic.
-The main question we will ask are should the rules governing defamation be different
from the general rules governing moral damages (conceptual, functional and personal
approach)? Should the cap of 100K be applied in Qc, and should it also apply to cases of
defamation?
-Even if the decisions imposing a cap in the CML (the SCC trilogy) are in fact from CML
principles, nothing in these decisions go against civilian principles. Furthermore, the
policy reasons justifying the cap in the CML are also applicable in Qc.
-In French, defamation is called atteinte la rputation. One has a right to protect ones
reputation (refer to art 4 of the QC Charter. Ones reputation is also protected by articles
3 and 35 of the CCQ.)
-Art 3: outlines the personality rights that every person has. Article 35 goes along the
same lines: one has a right to privacy and reputation.
-NOTE also the importance of art 1457: this is the article to use in cases of breaches of
personality rights (including a right to ones reputation). Dissent in Parizeau argued for
the necessity of proving fault: one cannot just rely on the proof that the right to ones
reputation has been breached, one must also prove that the breach constituted a fault. This
refers to the reasonableness of the defendants behaviour.
-There are 2 types of fault in defamation cases:
Where the defendant has intentionally attacked the reputation one another person
in order to ridicule or insult or harm that person. Here we are talking about
intentional harm and a desire to hurt.
However, intentional behaviour is not necessary for a claim of defamation: where
the def has no real intention to cause harm but nevertheless does so thru
negligence, lack of prudence, or thru unreasonable behaviour, the def is still liable
to a claim of defamation.
-Defamation does not just operate in terms of false info, but also of info that is true that
may still causes damages. In the latter context, the court usually requires the pf to prove
the intention to harm on part of def.
-Damages in defamation claims can be
1. Material: eg loss of business
2. Moral: eg grief, depression, anxiety
-NOTE: moral injuries can stand on their own, they need not be attached to a
bodily/material injury.
Rosalie Jukier, Non-pecuniary damages in Defamation cases, p. 364:
-Discussion of the evaluation of non-pecuniary damages, specifically in the context of defamation.

43
-Based a lot on the Snyder case (SCC, 1988), where the victim was awarded an unprecedented $135K.
-Article focuses on 3 main issues:
1. Should there be a cap for non-pecuniary or moral damages for defamation?
-Main argument for 1: As long as a ceiling remains on moral damages in personal injury cases, it is
unwarranted to allow non-pecuniary damages in defamation cases to soar above such ceilings.
-Lower award (than in personal injury cases) could be justified for a number of reasons: conflicting rights
(freedom of the press vs. protection of reputation and the chilling effect of high awards), temporary nature
of the injury suffered, available alternatives to monetary award
2. What goes into the construction of a claim for moral award?
-Social status of the victim (public figures seem to warrant greater protection in the larger awards they
receive for defamation), good standing and reputation prior to the defamation, extent and duration of the
derogatory statement, from whom the statement emanates (credible source?), presence or absence of an
apology or retraction, conduct of both the defendant (retracted, apologized, malice or bad faith involved?)
& plaintiff (mitigated losses by acting as soon as possible?), gravity of the statement (which of course is an
entirely subjective determination)
3. Are damages always the more appropriate solution in defamation cases?
-Jukier believes that the awarding of damages for cases of defamation are really not the best solution, the
best means of affecting an restitutio in integrum. In this context, she suggests alternatives (or perhaps
should they be complementary) remedies: injunction (only in limited circumstances, cause dangerous
assault on freedom of speech), publication of decision (not that great, cause limited scope), retraction and
reply (elective remedy at discretion of defendant)

Defamation claims are essentially claims for moral damages. That is for pure moral damages,
rather than moral damages that flow from material/bodily injuries. We take admissibility for
granted because victim necessarily conscious of injury.
Are the three approaches personal, functional, and conceptual explicitly used
to calculate quantum of damages? The question is never discussed by PQ courts.
Benedek says that the conceptual approach is favoured when moral damages are calculated,
although the true basis of awards for defamation is the severity of the injury.

Factors To Determine Damages

1. Seriousness of statement [Parizeau where compared to Hitler].
2. Behaviour of author of defamatory statement [intentional/accidental or repeating
statement/genuine retraction].
3. Extent/Effect of dissemination [CA thinks important in Parizeau; Jukier says (a) have to
look at contextual effect of dissemination rather than extent alone, and (b) have to
consider whether profession is fundamentally based on reputation].
4. Length of effect of statement [is effect permanent or ephemeral?].
5. Effect of statement on victim.
6. Initial position of defamed plaintiff [Higher awards granted to public figures people
who base their profession on their reputation (Note that in Droit des personnes, we
looked at the right to ones reputation and violations of this right and the remedies
afforded by the Qc Charter, and in the cases we looked at, courts agreed that certain
statements made v-a-v certain individuals [such as lawyers] who base their entire careers
on their reputation must entail higher damages). Is it right to say that the reputation of a
public figure is more valuable than of regular person?]

44
Jacques Parizeau c. Lafferty, Cour Suprieure, 2000, p. 380 :
Faits : Les demandeurs sont des politiciens associs au Parti et au Bloc Qubcois. En janvier 1993, le
dfendeur a distribu 275 clients un bulletin danalyse de la situation politique et conomique du Qubec,
dans lequel il faisait un rapprochement entre les demandeurs et Hitler. Des extraits de ce rapport se sont
retrouvs dans les journaux.
Question : Y-a-til eu atteinte la rputation des demandeurs?
Dcision : Oui, et il y a lieu dattitrer des dommages compensatoires et punitifs
Ratio :
-Les propos tenus par le dfendeur sont mensongers et diffamatoires. Il na pas pu fournir dexemple
concret permettant de justifier ses comparaisons ni citer aucun fait tablissant que les demandeurs
dfendaient des principes antidmocratiques ou racistes ou encore quils voulaient restreindre les liberts
fondamentales des citoyens ou de certians dentre eux.
-Bien que les politiciens doivent accepter de sexposer la critique, il est des limites respecter qui, en
lespce, ont t franchies.
-Le demandeur a tort de prtendre quil na pas compar les hommes, seulement leurs politiques. Le lecteur
moyen, la personne raisonnable qui lisait son texte comprenait que les demandeurs sont des nationalistes
dont laction politique mne invitablement la dictature, comme cela avait t le cas pour Hitler, que leurs
propos dmagogiques suscitent la peur et que personne nose les critiquer de peur de reprsailles, et quils
ont recours aux tactiques de peur utilises par Hitler.
-Ce nest pas parce quon est en politique quon na plus le droit la sauvegarde de son honneur, de sa
dignit et de sa rputation : le droit la rputation vaut pour tous le monde (Hill v. Church of Scientology)
-Le dfendeur ne peut se soustraire sa responsabilit en invoquant la dfense de commentaire loyal. Si les
questions abordes taient dintrts publics et que le dfendeur croyait sincrement ce quil a crit,
rpondant aux critres de lintention honnte, ses propos ntaient pas raisonnablement soutenables. Il na
pas lu le programme du Parti Qubcois ni aucun document faisant tat de la position des demandeurs sur
les dorits et liberts de la personne et des minorits.
-Les dommages exemplaires sont attitrs car le dfendeur a agi en toute connaissance des consquences
immdiates et naturelles ou au moins extrmement problables que cette conduite pouvait engendrer et quil
refuse toujours de se rtracter.
Commentaires:
-SC suggests that effect of statement on B and P was not so terrible because editorials rejected any
comparison. SC also notes that the statements of L are so ridiculous that they were never taken seriously
but this in of itself is not sufficient to warrant lower damages, just because the comments are so hurtful.
-Court of Appeal - raises award to $75,000 to each B and P. CA says that in effect statement was widely
disseminated. CA notes that the statement was particularly serious [insulting]. CA also suggests that
because of initial position of B and P [public figures] the damage to their reputations is grave.

Cap For Defamation

There is no cap on moral damages for defamation.

In Snyder, Lamer J. dissents saying that there should be a cap.
Jukier is also in favour of a cap. She argues that that cap should be lower that Andrews
trilogy because: (1) rights are not absolute and there is conflict between freedom of expression
and reputation, (2) the loss is temporary because often the victims reputation can be restored,
(3) there are alternative remedies [publication of judgment, injunction, etc].

-Should the 3 approaches discussed in the SCC trilogy be used in the evaluation of the
quantum of damages in defamation cases? LHeureux-Dube argues that all three
approaches could be adopted in order to determine the quantum of moral damages in Qc,
and Kh agrees that this should be the case.
-NOTE that courts in Qc tend to use the conceptual approach (with some flavour of the
personal approach) in the evaluation of moral damages. Accordingly, defamation
damages tend to be lower in Qc than in other jurisdictions.

45
-Factors that assist us in determining and assessing moral damages (this is for defamation
cases only, because some of these factors would not have any relevance in other moral
damage cases):
Seriousness of the statement: if the statement is so exaggerated or overly
ridiculous, it could be argued that the statement will not be taken seriously by
anyone, and so accordingly the damages should be reduced.
Intention of author: Courts tend to be more severe if
o There is an intention to harm,
o The author does not retract the statement (and even if there is a retraction,
this must be done in good faith and not just as a means of reducing the
quantum of damages one is liable for),
o The statement is reiterated,
o There is no apology (NOTE in this context Jukiers argument that if the
comment was ephemeral, an apology or retraction might be
counterproductive, for it might serve to remind people who forgot about
the comment of its existence), etc.
Extent of dissemination: if the medium of dissemination is wide (TV, radio),
then damages are likely to be higher.
o NOTE that here there is a difficult issue: are we looking at the intentional
dissemination (or intended dissemination), or at the objective
dissemination (this was relevant in Parizeau, as the initial statement was
only to be read by a few individuals who paid for the report)?
o NOTE: In Parizeau, the dissemination was not limited to QC: in Qc,
people did not take these comments seriously, but outside of the province,
where people might not be as familiar or aware of the political situation in
Qc, might take the comment more seriously (it might be more difficult for
them to make an assessment of the validity of the statement).
o NOTE: As per Jukier, a limited extent might still result in a very serious
effect (ex: small town: limited dissemination, but nearly universal
knowledge), and a wide extent might not have a serious effect (people do
not take it seriously).
Length of effect, permanence or ephemeral character: the longer the comment
and its effects stay, the greater the amount of damages awarded. If the comment is
just ephemeral, if people forget about it quickly, then the effects are presumably
not long-lasting, and the amount of damages a pf is entitled to should be lower.
Effect on victim and entourage: the more the pf can demonstrate suffering as a
result of the comment (anguish, depression etc.), the greater the quantum of
damages awarded, cause the court then has something upon which in can evaluate
damages (cost of medication, treatment, loss of job etc.)
Position of defamed pf: this is very problematic as per Jukier article.
Theoretically, everyones reputation is as valuable, but courts tend to assign
greater damages to celebrities or public figures (despite the fact that their line of
work presupposes a willingness to have a reduced private life). This is based on
the fact that their reputation is more important in their line of work than the
reputation of someone who is a clerk or garbage man. Rationale also explains why

46
doctors and lawyers, who depend on their reputation for business, tend to receive
higher compensation for defamation.
-There is a cap for moral damages, but not for defamation (which is part of moral
damage): this is an exception. Is the exception warranted? Lots of criticism (Jukier and
Lamer for example)
-Refer to Snyder v. Mtl Gazette (CVL) and Hill v. glise de la scientologies (CML): no
cap: should there be one?
-Arguments against a cap:
There is no cap for other types of damages (bodily, material, physical),
Imposition of a cap would perpetuate stigma that moral damages are not worth
compensation,
Court could raise the criterions to bring a claim so as to prevent the floodgates,
No cap better provides for restitutio in integrum,
The imposition of a cap would provide a license to defame (if the amounts of
compensation are low, one could conclude that it does not cost much to defame in
relation to potential revenue: for example, tabloids)
-Arguments for the imposition of a cap:
There IS a cap for other types of damages (bodily, material and physical): this cap
is restitutio in integrum: one does not get more than what is needed to restore one
to original status
Imposition would avoid astronomical amounts of compensation
There are other means of rectifying moral damages (apology, retraction etc)
There is an issue of freedom of speech: the imposition of a cap protects this
freedom
The multiple dangers of subjectivity: how much money should a pf be entitled to
is dependent on how sympathetic the judge is: the imposition of a cap would
remedy this.
-Question: why is the legislator silent on the factors to consider for moral damages (note
the factors outlined in art 1621 for punitive damages)? Perhaps because it wants to leave
some flexibility. Nevertheless, maybe the existence of some defined factors would
facilitate the task of court (determining the quantum to provide for moral damages)
without having recourse to a cap.

Part VIII: The Relationship Between

Private Law and Public Law
-The possibility of obtaining damages for the breach of a fundamental right or freedom is not
controversial. The breach of a protected right can constitute moral injury.

-This final topic straddles both private and public law (the relationship between
fundamental rights and civil liability): fundamental rights are protected by Charters (Qc
and Canada) but also, in some circumstances by the CCQ. If the rights are protected by

47
the Charter(s), does one have to sue under these, or can one sue under the CCQ? How can
we reconcile the two regimes?
-In this context, the questions to ask are:
Does the charter create independent rights and autonomous remedies?
What is the difference between a violation of a right under the Charter and
the concept of fault under 1457 CCQ? Does the breach of a Charter right
automatically mean a fault?
What is the relationship between fundamental rights protected under the
Charter and the elements of fault under 1457 CCQ: more specifically, does
the infringement of a right necessarily constitute an injury?
-NOTE: the Charter as a semi-entrenched, quasi-constitutional document.
-Qc Charter came into being in 1975 while the Canadian Charter was entrenched in 1982.
Prior to these, courts used the CCLC to protect fundamental rights.
-Where are fundamental rights protected in the CCLC and CCQ?
Art 1053 CCLC: NOTE: not all fundamental rights were protected under art
1053: the right to equality or to freedom from harassment were not protected by
the courts via art 1053. Only some rights were protected: mostly political rights
such as the right to free association, the right to freedom of expression etc.
Today:
o In 1991, the legislator decided to codify a lot of the freedoms that had
been protected under art 1053 despite the existence of the Charter.
o Preamble: CCQ, in harmony with the Charter of human rights and
freedoms and the general principles of law, governs persons, relations
between persons, and property
o Art 3, 10, 32, 35, 36 etc. CCQ (these are only a few of the possible
examples)
e.g. art 3 CCQ/ 1 Charter
Art 35 CCQ/ 4 Charter
-Thus in certain instances, the CCQ is repeating the Charter. This is an indication of the
importance we attribute to certain rights.
The Charter
-The Charter was enacted in 1975. Art. 49 of Charter provides for claim of compensatory
damages [49(1)] and exemplary damages [49(2)] for the breach of a protected right (for punitive
damages/exemplary damages, the breach must be intentional).
-Before this, rights and freedoms were protected by 1053 CCLC [primarily with respect to the
right to physical integrity].
-There is an argument to be made that CCLC still played a role after 1975, and that the present
CCQ still protects rights and freedoms above and beyond the protection afforded by the Charter:
Legislator says that CCQ has to be read in harmony with the Charter.
Arts. 1-49 CCQ protect rights that are also protected by the Charter.
Can claim damages for violation of fundamental right on basis of 1457 CCQ.

-If we establish a spectrum in terms of whether the Charter constitutes an autonomous

regime (in terms of the readings in this section), it would look like this:

48
Not an auto. regime -----Ambiguous -------Autonomous regime
Bliveau
-----Aubry
-------Popovici
-To put it differently, in Bliveau, SCC says that the Charter is not an autonomous
regime; Popovici in his article stands at the other end of the spectrum: we are not sure
what is position is, but he raises arguments that the regime is autonomous. Aubry, in the
dissent of LHeureux-Dube, suggests that parts of the charter is autonomous (s. 49(2)),
parts are not (s. 49(1)) (she also says the same thing in Bliveau)
-Gonthier J in Beliveau: Charter does not create an autonomous system of liability because of the
parallels that can be established between the two systems. He sees the Charter and the CCQ as
covering the same thing, i.e. civil liability. His main argument is that both are aimed at
compensation, and both require the demonstration of fault, injury and causality. We could
disagree:
S. 49 is not a mirror of art 1457: there is no mention of fault in the former.
Some violations of fundamental rights protected under the Charter would not meet the
requirement of fault under 1457.
There are other remedies in the Charter beside compensation: injunction, nominal
damages etc. (note that the latter are not accepted in Qc law, but they are in France)

-The conclusion to be reached from the Bliveau decision is that a pf can claim
reparation for the infringement of a moral right under s. 49. The condition that the pf
must prove is that the act causing the interference with a protected right listed in the
Charter was unlawful (illicite) and wrongful (remember that wrongful/faulty, as per
Popovici, means that legal imputability is recognized for the illicit act)
-2 remedies are available under s. 49:
Ask for an end to the infringement (cessation de latteinte) thru injunction.
Ask for damages or reparations
-In addition, if the infringement is also intentional (in addition to unlawful), then one can
ask for punitive damages under s. 49(2).
-L-D in Aubry and Beliveau: accepts that the Charter is not autonomous (agrees with Gonthier)
v-a-v s. 49(1), BUT Gonthier also included s. 49(2) (punitive damages) in his argument of no
autonomy: this would mean that one could not claim punitive damages without proving an injury
according to rules of civil liability.
-L-D disagrees with this inclusion of s. 49(2) as an non-autonomous remedy; one can claim
exemplary damages even if one does not get civil damages as per art 1457. She bases this on the
fact that punitive damages have different goals, and are not traditionally part of civil law, so they
must be autonomous from civil liability.
-Lebel article: Qc courts have tended to follow L-D rather than Gonthier: s. 49(2) as autonomous
remedy.
-Is the breach of a fundamental right necessarily faulty?
-No autonomy to Charter: then must prove fault, injury and causation: but what is a fault with
respect to a fundamental right? Two possibilities:
Violation of fundamental right or freedom is necessarily a fault. So if prove unlawfulness,
then have proven fault. A violation in of itself is objectively unreasonable (this has not
been accepted).

49

Violation does not prove fault: must prove fault by referring to reasonable person test. If a
person acted unreasonably and caused an illicit infringement of a fundamental right, then
fault is proven.
-Popovici also agrees that you have to prove fault as per art 1457.
-The violation of a right protected by the Charter is a fault: this is from Beliveau: this is not a
clear position from Gonthier. Lamer (dissent) in Aubry argues that fault is a central requirement,
and breach of a fundamental right is not necessarily a fault: says that Gonthier in Beliveau was
misinterpreted. This stems from the fact that historically, QC CVL have protected some freedoms
and rights via civil liability and the reasonableness test.
-The majority in Aubry (L-D) does not really deal with the question directly.
-So if we analyze fault under s. 49, ask two questions:
has there been a breach of a fundamental right or freedom
has the breach been faulty: reasonableness test.
-As per Popovici, there is no reason why a breach of a fundamental right with no additional
injury could not also be an injury (say interference with right to reputation without actual loss in
reputation). This is line with the possibility of obtaining punitive damages for an intentional
interference with a right under s.49(2) that is seen by LH-D as an independent remedy that does
not operate along the lines of civil liability (although Popovici would say you need to prove fault
still). This is not really addressed by the SCC (whether the infringement constitutes an injury in
of itself).

Beliveau St-Jacques v. FEESP, 1996, SCR, p. 389 :

Facts: The appellant, who alleged that she had been the victim of harassment in the workplace and sexual
harassment by one of her supervisors, instituted a liability action based on the Charter of Human Rights and
Freedoms against her employers and the alleged harasser in the Superior Court. She subsequently obtained
compensation under the Act Respecting Industrial Accidents and Occupational Diseases (AIAOD), for
having suffered an employment injury as a result of the same events. The employers then filed a motion to
dismiss in which they argued that, because the appel had obtained compensation from the competent
industrial accident authorities, the effect of s. 438 AIAOD and art 1056a CCLC was to deprive the Spt Ct of
jurisdiction in respect of the appels civil liability action.
Issue: To determine whether the victim of an industrial accident who has received compensation under the
AIAOD may in addition bring a civil liability action based on the Charter. The employer argued, by way of
cross-appeal, that if such an action was not barred, it had to be decided by the grievance arbitrator as set
forth in the collective agreement in place.
Held: Both appeal are to be dismissed: appel cannot sue.
Ratio:
Majority [Gonthier and 4 others] :
AIAODs purpose is to provide compensation for an wrongful act, like civil liability. S. 438 bars a
recourse to civil claim in courts if compensation is granted under AIAOD.
S. 49 of the Charter is a civil liability regime, and thus access is barred under AIAOD. Violation of right
protected by Charter is the equivalent of a civil fault. First paragraph of s. 49 is meant to provide
compensation for an injury (compensatory nature of s. 49(1)).
Charter does not create a parallel compensation system and cannot authorize double compensation. The
Charter merely formalized standards of conduct without creation an entirely autonomous system of
liability.
An action for exemplary damages based on s. 49(2) cannot be dissociated from the principle of civil
liability. Such an action can only be incidental to a principal action seeking compensation for moral or
material prejudice. The wording of s. 49(2) clearly shows that, even if it were admitted that an award of
exemplary damages is not dependent upon a prior award of compensatory damages, the court must at
least have found that there was an unlawful interference with a guaranteed right. This necessary
connection with the wrongful conduct that gives rise to civil liability leads one to associate the remedy
of exemplary damages with the principles of civil liability.

50
S. 51 of the Charter states that the Charter must not, as a general rule, be interpreted so as to extend or
amend the scope of a provision of law. Allowing the victim of an employment injury to bring a civil
liability action based on the Charter against his or her employer or a co-worker would necessarily call
into question the compromise formalized by the AIAOD. Although s. 52 of the Charter affirms the
relative preponderance of the Charter, only ss. 1-38 prevail over other statutes. S. 49 even when invoked
because of a violation of one of he rights guaranteed in ss. 1-38, does not have the same relative
preponderance.
Obiter: for the cross appeal, since s. 438 bars recourse to civil remedy, the arbitrator could not have
been appealed to.
Dissenting in part [LHeureux Dub and La Forest]:
Agrees that s.49(1) of Charter does not create an autonomous system of liability. But application of s.
438 of AIAOD is limited to s. 49(1) because only that part of the section is concerned with
compensation for a wrongful act.
S. 49(2) provides for exemplary damages and so differs from the general law in that it establishes a
remedy that is autonomous and distinct from compensatory remedies. This is more in the vein of
punishment and deterrence, not compensation.
AIAOD does not preclude the award of punitive damages, cause these are not compensatory in nature,
and only compensatory damages are precluded by s. 438 of AIAOD.
Even though s. 52 expressly mentions only ss. 1-38 of the Charter, s. 49 has the same relative
preponderance because it is incidental to the rights specified in ss. 1-38. It is unnecessary for s. 52 to
specifically refer to s. 49, since the latter simply sets out the possible remedies but does not guarantee a
right. Accordingly, since harassment in the workplace is covered by s. 10.1 of the Charter, the
exemplary damages provided for by s. 49(2) must, in the event of inconsistency (here with s. 438 of
AIAOD) take precedence because of the relative preponderance of s. 10.1
Obiter: In this case, it is the grievance arbitrator who has jurisdiction under the collective agreement to
decide the appellants claim for exemplary damages from her employers under s. 49(2) since the power
of the arbitrator extends to the application of Human Rights legislation. This is because both the issue
and the remedy sought come within the jurisdiction of the arbitrator. The arbitrators jurisdiction would
be exclusive, and so no action could be brought by the appel in regular courts.
Comment:
The dissent simply doesnt agree with Gonthiers interpretation of in addition.
Rule: Charter does not create autonomous system of civil liability, and so where the remedy is otherwise
provided for at the exclusion of all other regimes, the Charter cannot be appealed to.

Aubry v. Editions Vise-Versa, 1998, SCC, p. 424 :

Facts: magazine publishes picture of A without permission; A sues for infringing right to privacy and s.5 of
Charter.
Held: Violation of the right is present, and so damages are awarded.
Ratio:
Majority [LHeureux Dub]
Infringement of a right under the Charter must be proven on the elements of civil liability (fault, injury,
causation).
Rights to ones image is protected under s. 5 of the Charter. To infringe this right gives rise to an action
under s. 49. However, as per s. 9.1, rights must be balanced, in this case the right of the photographer to
freedom of expression (s. 3 of Charter). Court finds that the photographers right does not overtake the
pfs right to privacy (no sound justification was provided, the publics right to know was not proven,
such that the infringement is unjustified).
Fault: publication of the picture without the pfs consent. Causation is a given. Decide that there was
enough evidence to prove injury, so all elements are proven.
There is fault as soon as protected right is interfered with. Mere infringement does not equal injury
the plaintiff must also prove injury. There was evidence that A felt discomfort/upset so damages
awarded by trial judge confirmed.
Dissent [Lamer CJ]

51
Believes that pf failed to prove that she suffered prejudice, and so one element of civil liability is not
present.
Mere infringement of a right or freedom does not necessarily constitute fault. Only unjustified
infringements constitute fault. In this case the infringement is unjustified, so there is fault
(photographer could have obtained consent, but did not do so). However, there is no evidence of injury
so claim fails.
Major also dissented for lack of evidence of damage.
Rule: infringement of protected right constitutes fault; must balance competing rights; must prove injury
beyond mere infringement.
-First para of s. 9: provides that rights and freedoms must be exercised in relation to each other, with proper
regard for public order, democratic values and general well-being.

Arthur v. Gravel, 1991, CA QC, p. 442:

Facts: G tait dput lAssembl nationale lorsque A, un animateur de radio, rappela aux auditeurs son
pa de prpos lentretien dans un hpital psychiatrique, le traitant de moppologiste et dinsignifiant. Le
premier juge a conclu que A avait abus de sa fonction pour jeter le discrdit sur une personne en utilisant
son gard un qualificatif drisoire et pjoratif nayant aucun lien avec ses fonctions.
Issue: G a-t-il droit des dommages compensatoires ou exemplaires?
Held: NON
Ratio:
McCarthy:
-On na pas le droit dimputer une personne, publique ou non, un fait qui porte atteinte son honneur ou
sa dignit en faisant allusion sa vie prive ou sa vie publique. On commettrait ainsi une faute, sans dans
le cas ou lon pourrait tablir la vracit de lallusion, lintrt public constituant une dfense.
-En lespce, G na pas t diffam, et il ne peut se plaindre des injures dont il a t lobjet. A voulait
souligner le fait que G se soit ml une affaire qui avait mal tourne, laissant entendre que ce dernier tait
blmer en raison de son inhabilet, mais sabstenant dvoquer quelque malhonntet de sa part. A, en
faisant cette caricature verbale, exerait sa libert dopinion et sa libert dexpression dans les limites
permises dans une socit dmocratique.
Baudouin (dissident) :
-Le cas prsent concerne des injures portant atteinte la dignit et lhonneur, en contravention avec les
dispositions de lart 4 de la Charte. La simple participation dune personne la vie publique ne donne pas le
droit de labreuver dinjures lorsque les faits nont aucune relation avec laccomplissement des devoirs de
sa charge. Bien que le degr de tolrance dune personne publique doive tre plus lev, ses droits
demeurent.
-En lespce, le fait que A ait us rptition du mot moppologiste convainc de son intention dinjurier et
de ridiculiser gratuitement lintim ainsi que de stigmatiser publiquement ses origines sociales. Ces propos
constituent donc une faute civile et une atteinte lhonneur. En ce qui a trait aux dommages, bien que les
sommes accordes par le premier juge ne soient pas trs gnreuses, il ny a pas derreur flagrante qui
justifie lintervention de la Cour dappel.

LeBel, LHonorable Louis, La protection des droits fondamentaux et la responsabilit civile ,

p. 447 :
-Question Principale de larticle :
-La Charte des droits et liberts de la personne du Qubec et la Charte canadienne des droits et liberts :
Avant ladoption de ces dernires, le droit de la responsabilit supplait, au moins partiellement,
linsuffisance ou au silence du droit public dans la protection des droits fondamentaux. Maintenant, aprs
lentre en vigueur des chartes, que devient la fonction de la responsabilit dlictuelle dans ce domaine?
-En droit civil qubcois, avant larrive des chartes, le rgime de responsabilit civile a russi parfois
remplir une fonction protectrice des droits de la personnalit ainsi que des droits politiques les plus
fondamentaux comme les liberts dexpression, de religion, de runion ou dopinion. Essentiellement croit
que le droit de la responsabilit a jou un rle positif dans la protection des liberts fondamentales avant
lentre en vigueur des Chartes.
-Cependant, lavnement des chartes a modifi lunivers juridique du Qubec (tout comme celui des autres
provinces canadiennes) : le mouvement contemporain de constitutionnalisation des droits fondamentaux

52
devait toutefois changer profondment leur nature et leur porte dans les systmes juridiques du Canada et
poser des questions nouvelles sur leurs rapports avec le droit de la responsabilit . Essentiellement, les
chartes accentuent la ncessit de repenser les rapports entre le droit public et le droit priv.
-Notons quau Qubec, la Charte occupe une place plus considrable dans lordre juridique que celle que le
lgislateur a rserve ailleurs au Canada aux lgislations sur les droits de la personne : la Charte qubcoise
rgit les relations entre ltat et les citoyens, ainsi que les relations entre les citoyens exclusivement (donc
rgit le public et le priv)
-Les deux chartes attribuent un pouvoir correctif important aux tribunaux; la sanction des violations des
droits quelles garantissent se retrouve, en effet, dans un recours au pouvoir judiciaire.
-Dsormais, le droit fond sur le CCQ ne reprsente plus que lun des lments dun ordre normatif
complexe constitu de plusieurs niveaux. Des rgles constitutionnelles rgissent dsormais nombre de
situations ou le droit de la responsabilit offrait les seules voies de recours effectives.
-Lentre en vigueur des Chartes a pos le problme de lexistence et de la nature dun rgime autonome de
responsabilit civile pour violation des droits fondamentaux.
-Bien quen CML, la SCC semble avoir bien spar les systmes de responsabilit civile et de droits de la
personne, en droit civil qubcois, la SCC na pas retenu un principe dautonomie des rgimes de
responsabilit qui aurait pu mener terme le dveloppement de 2 systmes parallles, mais diffrents dans
leurs fondements. La SCC a prfr une mthode de coordination (Bliveau)
-NOTE : Toute atteinte un droit garanti ne constitue pas ncessairement une faute. La violation, elle
seule, ne met pas en jeu lapplication de larticle 49 de la Charte qubcoise. Lillicit ne nat pas de
latteinte.
-Critique de la dcision de la SCC de ne pas sparer les deux rgimes : la reconnaissance dun rgime
autonome de responsabilit pour atteinte la Charte qubcoise aurait permis celle-ci de mieux remplir sa
fonction ducative et prventive, tout en respectant lordre normatif voulu par le lgislateur qubcois.
Selon certaines de ses critiques, la jurisprudence de la SCC aurait mme boulevers la hirarchie des
normes juridiques tablie par ladoption de la Charte qubcoise, en subordonnant cette dernire et, de cette
faon, le droit des liberts fondamentales au droit civil .
-Conclusion : Un systme de droit doit ainsi tre peru et mis en uvre comme un ensemble. Cette
mthode protgera mieux les droits fondamentaux que la dissociation des diffrentes catgories de rgles
applicables des situations de fait et de droit

A. Popovici, De limpact de la Charte des droits et liberts de la personne sur le droit de la

responsabilit civile : un mariage rat ? , p. 459 :
-Article examine limpact de la Charte sur le droit de la responsabilit civile.
-Les tribunaux nont pas, mon avis, mesur les consquences sur le droit commun de lmergence et de la
primaut des droits individuels tels que garantis.
-Positions : 1) latteinte illicite un droit de la Charte est une faute; 2) latteinte illicite ne cre pas de
prjudice indpendant : Popovici est en dsaccord avec ces deux propositions
-Ce nest pas latteinte illicite qui est la faute vise par lart. 1457; ce nest pas parce quil y a eu une
atteinte illicite un droit quil y a faute, cest parce quil y a eu faute quil y a eu atteinte illicite un droit.
Essentiellement : ce nest pas parce quelle est illicite que latteinte est fautive; cest parce quelle est
fautive que latteinte est illicite.
-La norme juridique me semble clairement tre la suivante : Toute personne a le devoir de respecter autrui.
Ce que le CCQ vient ajouter cette norme, cest que les personnes non doues de raison, ne peuvent
commettre de faute, ne rpondent pas, personnellement, du prjudice caus illicitement. Il nen reste pas
moins que leurs agissements dommageables peuvent tre qualifis de faits illicites, comme le reconnat le
CCQ aux articles 1459, 1461, 1462.
-Lillicit est un concept qui diffre de celui de faute quil englobe.
-Lillicit est la violation objective dune norme. Le deuxime alina de lart 1457 nous informe que
lillicit, combin avec limputabilit juridique, est ce qui constitue la faute.
-De la mme faon quil ne peut y avoir de responsabilit civile sans dommages, il ne peut y avoir
datteinte illicite un droit fondamental sans sanction.
-Popo propose que pour ce qui est des droits fondamentaux, les concepts de responsabilit civil (faute,
prjudice et causalit) se fondent en un. Ds lors, latteinte illicite un droit protg par la Charte est
ncessairement un prjudice et passible de compensation.

53
-Popo propose quune atteinte illicite est un dommage (pas ncessairement tout le dommage) ou,
prfrablement, comporte un dommage inhrent rparable. Donc, toute atteinte mnera une compensation
si lon peut prouver la faute et le lien de causalit).
-Ce que veut dire lart 49 de la Charte, cest que, part et en sus, de latteinte illicite, seront rpares ses
consquences patrimoniales et extrapatrimoniales, matrielles et morales. Cest non seulement la violation
du droit qui est sanctionne, mais sont rpares aussi ses autres consquences pcuniaires et nonpcuniaires. En dautres termes, que lon doive rparer les consquences immdiates et directes, pat ou
extra-pat, de latteinte non seulement nexclut pas, mais au contraire prsuppose que lon rparera latteinte,
rsultat de lacte illicite du dfendeur ou du moins, quon le sanctionnera.
-Les consquences de la violation dun droit vis par la Charte sont non seulement la sanction ncessaire de
cette violation (dont la cessation), qui est un dommage, mais tous les prjudices qui en rsultent, si dautres
intrts dignes de protection sont immdiatement et directement affects en consquence.
-Selon Popo : toute atteinte un droit, en droit priv, est ncessairement illicite. Il ny aurait pas, en droit
priv, datteinte licite un droit port par un particulier, mais seulement lobjet de ce droit. Ainsi, si je
consens me faire amputer une jambe par mon mdecin, il y a, certes, une atteinte mon intgrit
physique, mais pas datteinte mon droit lintgrit physique.
Comments :
Charter is normative instrument so should have autonomous value and remedies.
Thinks all of s.49 of Charter is autonomous.
Uses idea of no right without remedy.
Should not be required to establish injury beyond infringement infringement of a fundamental right
itself constitutes an injury for which the court should at least grant nominal damages.
Argues that concept of unlawfulness in s.49 of Charter is larger than concept of fault, and so should
not impose the requirements of civil liability (fault, injury and causation) for liability under Charter.

-NOTE: get powerpoint conceptual map of the subject matters of this course.
EXAM COMMENTS:
-Exam: 3 questions, 2 questions: theoretical and fact pattern combination. Each question
has the same weight.
-Make the answer as explicit as possible: dont assume that Kh will understand, cause she
might very well not. Use a lot of sources to back up arguments, be rigorous.
-be critical of all material
-exam might be 3 pages.
-For fact pattern: identify all relevant issues, in the theoretical question: more liberty in
addressing what we want.
-Main objective/criteria of evaluation: juridical qualification of the facts.
-Practice Exam:
-issues:
Defamation.
Moral damages
Right to privacy
Reasonableness
Causation
Kids right to bodily integrity
Loss of publicity, sales: Loss of chance
3rd party right
Abuse of right

54
Punitive damages
Cap of 100K
Autonomy of the Charter
Specific performance: apology
-Start with the longer issues:
Defamation:
o Reasonableness of info
o Freedom of expression issue
o Causation : problem for the material injury but not moral injury
o For the injury: special status of the person.
o Should there be a cap for defamation
Charter autonomy and punitive damages
o Agreement not to sue under civil liability: is charter independent remedy?
o Availability of punitive damages?
o Autonomy or not: L-D and Popovici vs. Gonthier
SP
o Golden Griddle
o Art 1590, 1601
o Nemo praecise: Aubrais & Jukier
Third party right
o Laferriere: Gonthier disagrees with LOC except in lottery ticket cases