Advanced Civil Law Obligations: Short Form

Classes 1 & 2: Intro and CVL Tradition

Comments on Obligations: 3 types:
Ktual
X-Ktual
Unjust Enrichment (quasi-Ktual obligation)
-Terms: creditor, debtor, prestation
History of CVL: Main points:
Mixture of Roman Law, Jus commune, Feudal Law, Commercial Law, Customary Law (Glendon)
Various Manifestations:
o Code Napoleon (1804), Burgerliches Gesetzbuch (1896), CCLC (1866) & CCQ (1994)
What makes it different from CML:
o Presence of a Code,
o Definition of property,
o Importance of individualism (operational basis of CVL is freedom of the individual,
ability to bind oneself in legal relations, freedom of K as a manifestation of economic
liberalism)
Style of civil codes: rational and accessible (universal vocation, not the domain of jurists), abstract
and general, non-technical
Flexibility? Not as much as CML, but some room for judicial creation (good faith is an example,
whole area of X-K is another, unjust enrichment). What is sacrificed in terms of flexibility is
gained in terms of stability. Nevertheless, vagueness of the code does provide for some
adjustments over time, some flexibility thru judicial interpretation (Portalis, see also Brierley)
Code is common law of Quebec? Yes,
o Background/residual/subjacent legal framework that comes into play when no concrete
agreement exists between parties to a legal relation: foundation upon which the legal
edifice rests (Preliminary Provision of CCQ)
o Scope of what is covered by CCQ, code informs conceptually all other statutes (Brierley
and Brisson)
o CCQ takes precedent over other legislations unless contrary expressly stated (Dore:
Gonthier decision)
o Note this entails that legislation can explicitly derogate from CCQ, so jus commune
character is not absolute.
o Arguments against: not the whole of private law, influenced by statutes (not other way
around)

Classes 3, 4 & 5: Good Faith

Background:
GF moves away from traditional civilist perspective: violates primacy of the individual
autonomous will, contradicts the original distrust of judiciary (arbitrariness), and in contradiction
with the notion of equality of the parties, because it prioritizes the interests of the weak. GF is
really about social justice and protecting the weak from the strong (a modified civilian version of
unconscionability?): it allows the judiciary to modify a validly formed K, and this conflicts with
the values of individualism and economic liberalism.
Jurisprudentially created notion. Originally, QC hostile to the idea of GF
Under art 1024 CCLC (equity, now art 1434 CCQ) GF was approximated.
Became codified in CCQ (art 1375), although the notion of GF is left undefined (allows for some
flexibility: worry about judiciary abuse of the concept?). Manifestation of lack of GF: abuse of
rights.
GF is not limited to K law (arts 6, 7 and 1375 not in that section of the CCQ).
GF applies to both pre and post K situations (Bail).

The standard of GF is the reasonable person because we prefer an objective interpretation of GF

and we do not require malicious intent (Houle: LH-D)

Notions involved in GF:

o Art 1375: public order of direction, not of protection, and so cannot opt out.
o GF can ground both a K claim (for contracting party) and an X-K claim, and also a claim
for third parties (fear of floodgates?)
o GF is presumed (art 2085), so burden of proof is on pf to demonstrate absence of GF
(presumably not that easy so no floodgates).
o GF and abuse of right not the same thing (refer to Houle): both can operate on basis of
unreasonableness, but GF exists in pre and post K situations, whereas abuse of rights can
only exist during life of K. Abuse of right is a manifestation of GF, but not the sole
manifestation.
Karim
o GF imposes obligations to
Inform (Bail)
Cooperate
Be loyal
At pre-K, negotiation stage, entails confidentiality (remember Corona)
Perhaps advise?
o Note that no remedy is associated with a breach of art 1375.
o Ways that a failure to observe GF could lead to a nullity or other remedy (such as
reduction of obligations, art 1407):
Lack of GF before formation of K: sue X-K thru art 1457
Lack of GF at formation of K art 1399 (argue error, not lesion nor fear) can lead
to a defect of consent and therefore a nullity
Lack of GF during life of K, can sue K (art 1458) if party to the K or X-K (art
1457) if 3rd party (Houle)
Breach of GF as an independent remedy:
The conjoined operation of arts 1375 and 1416:
1375: all parties must behave in GF during formation, duration and
extinction of K
1416: K does not meet necessary conditions of its formation may be
annulled.
If GF is condition of formation of K, and if GF is not present at
formation of K, then K can be annulled without recourse to elements of
art 1399. Risk that this may allow lesion thru the backdoor.
Question: annulment thru art 1399 is ordre public de protection leading to a
relative nullity (art 1419), but if GF is ordre public de direction, then should
lead to absolute nullity (art 1417).
Cases that set up GF in Quebec CVL:
Soucisse: intro of GF as objective guide to conduct, no modification of K on the basis of GF, just
requirement that exercise of right not be abusive (Beetz judgment)
Houle: GF can allow courts to modify K (here remove a clause), GF is not malice, but
unreasonableness (LH-D decision)
Bail: establishes GF requirement in pre-K setting as well as duty to inform, but note that BMO
sued X-K (Gonthier decision)
Manifestations of GF:
1) Obligation to Inform:
Jurisprudentially created, introduced by Soucisse & Bail, which sets out factors to
consider. In response to fact that K are increasingly complex for lay persons.

OTI is either provided for by nature of the K (doctor/client, K of sale), flows from equity
(1024 CCLC, 1434 CCQ), or is a manifestation of GF (LeTourneau). OTI is reciprocal
and continuous obligation. Linked to art 1375.
Obligation de rsultat: must provide info, not just try to. Which info? All info that is
relevant for the other party to make an enlightened decision.
Counter-balanced by obligation to get informed (law does not sanction inexcusable error
[art 1400(2)]) (issue under consideration in Janin)
OTI operates on: 1) impossibility of creditor to self-inform, 2) legitimate reliance of
creditor on info provided by debtor (in such cases, it would be impossible or
unreasonable to expect creditor to self-inform)
2) Obligation to Advise:
OTI is straightforward, OTA is less so. OTA is about providing advice about K, to the
point of recommending whether to K at all.
Some Ks where there is a clear OTA: lawyers, financial planners etc. (Bolduc is on the
border between OTI and OTA) (see also Veilleux)
OTA does not necessarily flow from OTI, much higher burden to meet, and not clear if in
Qc law it is required for all Ks: it exists for some, but application cannot be universal (no
good in Ks where parties are of equal bargaining power)
General rule is thus that OTI does not require OTA (ex: doctor may inform patients, but
ultimate decision rests with patient)
3) Obligation to Cooperation:
Less developed than either OTI or OTA, entail taking the co-contractants interests into
consideration and facilitating the execution of the K. Based on new K morality where
parties are seen as partners involved in a common endeavor (traditional/liberal
conception sees parties as self-interested and thus as conflicting, opposite parties:
cooperation is not the point of the K) (Diesse).
Starting to be recognized in Qc, but only when following conditions are present:
o Common goal and
o Recurring relation (K of successive performance).
Franchisor/franchisee implicitly contains OTC (Provigo), so do K of employment
OTC is linked to idea of imprvision, which is not recognized in QC, but is in Germany,
Italy etc. (Martin, Stoffel, Ebke): court can modify/annul/rescind/force renegotiation of
K because it can no longer be completed as initially contemplated on account of
circumstances beyond the parties control (would be too onerous for one of the parties to
perform). Imprevision stems from OTC and imposes duty to renegotiate. It is
justified/supported by:
o Implicit imprevision clause: invalidity of consent (consent based on specific
circumstances which have proven to be mistaken, so K should be annulled)
o GF: issue of fairness: should not force a person to continue with obligations if
become too onerous
o Thorie de la cause: a cause is subjective reason for parties entering the K. IF
cause no longer the same or even present, K not valid.
o Force majeure (art 1470(2)): both use same notion of unforeseeability and
externality, but force majeure also requires irresistibility, which is not the case
for imprevision.
o Note that while imprevision is not part of Qc law (was proposed but rejected by
Office de la revision), it can be incorporated in a K by the parties (not against
public order).
o Lesion thru the back door? Would seem consonant with new K morality (as per
OTC). Advantage is that it would allow people to salvage their K.
o Argument against imprevision: would open the door to frivolous claims (how
much imprevision/change is need for the K to be annulled?) + how much liberty
should be given to judges in terms of modifying a K? + goes against autonomy
of the will

If imprevision is to be accepted, requirements are 1) equilibrium must be

disrupted in important way, (2) must be caused by unforeseeable circumstances,
(3) circumstances must be independent from will of parties. (sounds a lot like
force majeure)

Final Comment on GF:

Good Faith may directly lead to imprvision; the latter could be the logical end to which we are driven if
we recognize the doctrine of GF. Why? Because if GF is about treating your co-contractants fairly, then
changed circumstances that render their obligations too onerous in light of the raison d'tre of the K might
force the other party to accept either reduced obligations, renegotiation or even a nullity, which is precisely
what imprvision is about.

Class 6: Third Parties Rights:

-Third party rights are jurisprudentially created.
-Main Points:
1) Art 1457: always under obligation to act reasonably towards other people: thus that parties are in
a K relationship does not detach them from their other obligations.
2) A K only affects, in its operation, the parties to the K (relative effect, art 1440). This is based yet
again on the theory of autonomy of the will, BUT
3) Parties to a K must still act reasonably towards 3rd party who can sue X-K if adversely affected by
unreasonable exercise of K rights.
-Traditionally, only parties to a K could make a claim the basis of which was the very existence or
operation of the K. This is the idea of effets relatifs: K only has effects on parties to it (in CML called
privity of K).
-There are exceptions to this notion of relative effect:
art 1444: stipulation for another (A K B for benefit of C: B breaches, C has right to sue B Ktually,
even if not part of the K between A and B)
Kravitz: did not sue X-K, but rather Ktually. Not a 3rd party, but rather a faux tiers, sued on the
basis of the accessory theory. Now codified at art 1442
-Since in QC there is no limit in terms of the class of people who can make an X-K claim, and since we
recognize the notion of abuse of right in K setting, then it is possible for a 3rd party to sue X-K a party to a
K that has exercised rights in an unreasonable manner.
-Note that a K fault does not necessarily coincide with an X-K fault: breach of a K by one of the parties
does not necessarily entail that a 3rd party can sue (this would otherwise open the floodgates): must still
prove fault, injury and causality (Michaud).
-Fault must be proved by answering: [1] Should party have foreseen that breach of K (or right exercised in
abusive manner) would injure someone not party to the K (kinda like foreseeability)? [2] What precaution
should party have taken? [3] did the def act in such a way that the 3rd relied on him and did so for good
reasons (Bail scenario), [4] did the def intend to cause an injury? This establishes unreasonableness of
behaviour, which then can be fault as per art 1457.
-Fear of floodgates? Not really, cause like all other X-K claims, limited by injury, fault and causation (recall
Regent Taxi)

Class 7: Unjust Enrichment:

-UE is neither K nor X-K. Why? Cause can exist in the absence of a K and/or fault.
-UE is jurisprudentially created, based on equity, now codified at arts 1493-1496. UE serves to readjust the
patrimonies of the parties involved
-Conditions to be proven for a valid claim of UE (from Viger):
1. An enrichment: either positive (added value) or negative (need not to disburse for something)
2. An impoverishment: deficit in asset or lack of payment
3. A correlation between the enrichment and the impoverishment: MUST NOT be confused with
causation: one need not cause the other, there just needs to be a correlation, a link between the 2.
Correlation can exist even if it is indirect, if UE is created by 3rd party (Viger)
4. Absence of justification: most difficult criteria to satisfy. Refer to art 1494: UE justified when

a. Existence of a K/performance of obligations (an issue in Loungnarath)

b. Failure to exercise recourse/remedy: here note that UE is subsidiary and equitable remedy
c. Act giving rise to impoverishment was in self-interest or at own risk,
d. Liberal intention (this was an issue in Trottier)
5. Absence of evasion of the law (Loungnarath)
6. Absence of any other remedy
-If UE claim is valid, then pf gets the lesser of impoverishment or enrichment: do not want to punish the
other party, simply cause other party might not be at fault (Trottier)
-In France: UE claim is not available when the enrichment/impoverishment is cause by the pfs own fault:
such a fault is a justification for the UE, and so therefore criteria 4 is answered negatively: cannot invoke
ones own turpitude, because it breaks the chain of causation. (Marnaud). This serves purposes of
ensuring rational/reasonable behaviour. But while this logic may satisfy judicial rigor, equity may have
taken a shot Idea is that fault lessens the unjust character of UE and fault breaks causation (fault might
have caused the UE)
-Problem is: what level of fault that would allow for a justification of UE:
Any fault? Then UE would almost never be available.
Only the most severe/inexcusable fault? Then why have this justification at all?
There is also an issue of causation: did the fault actually cause the UE?
-One could argue that fault is already part of some of the justifications for UE in Qc (art 1494): failure to
exercise other remedy, self-interested risky action, liberality. Also use of word or in article suggests that
list is not exhaustive. If fault accepted in Qc as a justification for UE, then probably neither of the above
would have gotten compensation: Viger: failed to make sure K was valid, Trottier: failed to make sure that
father intended to give him land at his death. Is there also an issue of obligation to self-inform? No, cause
not in the K sphere.

Class 8, 9, 10 & 11: Remedies

NOTE: THE CHOICE OF REMEDY RESTS WITH THE CREDITOR EXCLUSIVELY, AND THE
CHOICE IS ONLY LIMITED BY THE AVAILABILITY OF REMEDY (PARTICULARLY IN
CASES OF SP).
Specific Performance:
Primary remedy in the CVL, applicable to all types of damages (bodily, material and moral). Why
primary remedy? Again sanctity of autonomy of the will & respect de la parole donne: when
enter K, do so after full consideration/reflection, thus normal that primary remedy would force
defaulting party to engage in what he promised to do. Refer to art 1590 where SP is primary
remedy, choice of creditor, and can be supplemented or replaced by damages if impossible.
NOTE: SP only applies to K (obviously)
Note however that availability of SP is limited: art 1601: SP granted in cases which admit of it
(same limitation under CCLC 1065): thus not granted in cases involving nemo praecise or where
pointless/impossible to ask for SP (remember Krell v. Henry: rent a room for coronation: if default
and coronation over, SP is pointless, CML case)
SP in CVL and SP in CML are very different (compare Golden Griddle and Argyll). In CML, SP
is equity remedy and so subsidiary to damages: remedy the discretion of judges.
While supposed to be primary remedy in Qc CVL, courts have been reluctant to apply SP
(Jukier):
o Mechanism that allows for SP, i.e. an injunction (whether positive or negative), comes
from the CML. Thus when imported into CVL, limited in application by characteristics
attached to the CML concept. One need not import the concept lock, stock and barrel:
should adapt it to CVL.
o Nemo Praecise rule: if only means of getting SP is thru physical constraints, then NO.
Note that in cases of corporations, nemo praecise rule not as easily violated, cause no
infringement of human liberties (unless corporation quite small or few employees highly
skilled can carry out obligation) (this is an issue that should have been, but was not,
addressed in Golden Griddle, issue is discussed in Aubrais v. Laval). Also not so

problematic if does not involve intuitu personae: if identity of the debtor is not necessary
for fulfillment of obligation, then can sub-K and SP not a problem. But if identity of
debtor is necessary (Ks of service, movie star or person with special skill), then SP not
granted. Note in this context that Qc courts have held that if SP is possible by third party,
then no problem even for service K (SP by equivalence: assignation of obligation).
o Difference between obligations to do [mandatory injunctions] and obligations not to do
[prohibitive injunction]: follows from the above. Bogus dichotomy: as much sacrifice
may be involved in not doing something as in doing something. Often a question of how
order is phrased.
o Problems of supervision: how to make sure debtor is performing as requested? CML very
aware of problem, but CVL considers this to be a bogus issue, cause similar difficulty for
damages: if order formed with sufficient clarity, then SP not a problem.
Finally, there is consideration of the issue of hardships (main point in Argyll): if SP is too onerous
for debtor, should it be granted? In CVL yes, cause remedies are all about prioritizing the interests
of creditors, not those of debtors, and CVL values the autonomy of the will (should be bound by
your promise). Could perhaps raise idea of hardship to ground a claim of impossibility of SP
however.

Loss of Chance:
LOC is both K and X-K claim
Idea of partial compensation for the inability to take a chance based on fault of def: cannot be full
compensation, cause lack of certainty in terms of ultimate result, so must be partial/proportional
compensation (portion of ultimate gain based on chance of getting gain) (Khoury).
Classic LOC cases: beauty pageants, races, lottery tickets
LOC in medical context: not accepted in Qc (rejected by SCC in Laferriere, cause seen as
bypassing causation, Gonthier decision), but accepted in France. Why does it bypass causation?
Because in medical cases, the patient is not prevented from recovering, but rather from trying to
recover by a specific means, and so cause of injury (non-full recovery) is unclear.
LOC accepted in QC in contexts other than the medical? Not sure, according to Gonthier
(majority) only in classic example of lottery case or cases were the possibility of getting the
benefit are completely random. All other examples are just questions of causation.
LOC compensation is calculated in proportion to the actual injury suffered: in France in medical
context (Cour de Cassation): must consider the actual/real gravity of the situation. Ex: lottery
case: if winning is 1000$ and chance of winning is 10%, then get 100%.
LOC is compensating for a distinct prejudice, not what was sought but lost: in lottery ticket cases,
LOC compensates for loss of chance of winning, not the loss of the actual winnings. This is why
the compensation for LOC is not the ultimate amount that could have been won, but a proportion
of it based on chance of winning.
Similarly, in medical context case, LOC is not escaping sickness, but chance of escaping sickness.
EX: person goes thru operation, is paralyzed, could undergo a second operation that would give
him 10% chance of recovering but is not informed by doc about it. Pf can sue:
o Negligence: doc negligence in operation caused paralysis (then prove all elements of
liability: fault, injury and causation) and no thru LOC
o Negligence: doc negligence in not informing caused paralysis (probably would not be
successful, cause causation would not be proven: only 10% chance of getting better thru
2nd op)
o LOC: doc negligence in not informing of the chance of recovery via 2nd operation is a
separate, distinct fault from the paralysis. Yes (in France), and damage are 10% of
ultimate injury, here the cost of the paralysis. What is this amount? 10% of cost of having
wheelchair, modified residence, loss of income if need change employment etc.
LOC is accepted in situations that involve an obligation of result (lottery ticket cases), but not in
situations that involve an obligation of means (medical cases) because in latter context, result is
not guaranteed.

LOC operates on presumption: if defs fault can be, on balance of probability (art 2804), seen as
the cause of the LOC, then full compensation of LOC (which is awarded in proportion to the
ultimate result). Need not prove that the defs fault caused the loss of the result, but rather that it
caused the LOC of getting the result. Thus LOC operates on the same logic as civil liability:
balance of probability and presumptions.
Why LOC? Avoid the all or nothing approach: when probability is not in favor of pf in terms of
ultimate injury, then better to claim LOC as separate injury. EX: lottery ticket scenario:
o A cannot say that he lost the jackpot because B did not buy his ticket as promised
(balance of probability is against A),
o But A can claim that Bs failure to buy ticket caused him his chance of winning the
jackpot (clear that by not buying ticket, A had no chance of winning).
o So its better for A to claim LOC (and get smaller amount) than claim for jackpot and get
nothing.
Problem with LOC is mostly in terms of quantum of damages to award: EX: lawyer lets
prescription period lapse and pf cannot take his case to court: pf cannot say lawyer made him lose
case, but can claim that lawyer caused him to lose chance of winning case. But what is this worth?
IN addition, what is the skill of the lawyer? Could the lawyer actually have won the case? Thus
there is both an uncertainty in terms of injury and causation.
LOC also demonstrates differences between CVL jurisdictions: different treatment in Qc and
France

Moral Damages:
Injuries in Qc can be material, bodily or moral (arts 1457 & 1607)
Problems with moral injuries: 1) difficult to assess the injury, 2) difficult to assess the quantum of
compensation leading to restitutio in integrum. Both 1) and 2) are arbitrary. (Augustus: what is life
expectancy worth?)
Synonyms: extra-patrimonial (CVL), non-pecuniary damages (CML): moral damages are damages
that do not directly bear on a persons patrimony, they have no market value: ex: reputation, bodily
integrity, dignity etc.
3 approaches to evaluation of injury/compensation (Benedek):
o Conceptual: objective conception, X amount for X injury (adopted in UK), flat out
rejected in Qc CVL (denatures the prejudice). Method would allow, in Canadian CML,
unconscious victims to get compensation, cause no need of subjective awareness.
o Functional: provide solace/replacement for injury. This is based on victims awareness of
loss. Recognized as main method in CML but not sole method in CVL.
o Personal: subjective evaluation of the particular injury for the particular victim. Again
unconscious victims cannot get compensation in Canadian CML, but would in Qc CVL.
In QC CVL: both personal and functional methods are used to determine the quantum of damages
to be awarded, while the existence of an injury is to be determined according to the rules of
liability (art 1457). Compensation in CVL is for objective existence of prejudice, regardless of
subjective awareness of it or ability to palliate loss with compensation (St-Ferdinand: LH-D)
Imposition of a cap for moral damages ($100K in 1978 $) because:
o Avoid social burden of litigious society (as in USA)
o Victim compensated already for pecuniary losses, so non-pecuniary losses should be
modest
o Moral damages are inherently arbitrary.
o Restitutio in integrum is possible with a cap cause victim is compensated for pecuniary
damages, so moral damages are only supplement.
o Is a cap not contradicting the functional approach, which seeks to provide appropriate
solace for injury ($100K might not be enough to provide appropriate and full solace: not
sure this is a great argument in light of the fact that pecuniary damages will also be
compensated) + No cap for defamation, which is a kind of moral damage.
Both the methods and the cap come from 1978 SCC trilogy (Andrews).

QC CVL is not inherently hostile to a cap, although the same issue arises: appropriateness of
artificial limit to compensation (cases by Qc CA have applied the cap: Benedek)

Moral Damages: Defamation:

Defamation (atteinte la rputation) is a manifestation of moral damages and is within X-K sphere
(right to reputation and privacy)
Note however that defamation can lead to both pecuniary damages (loss of employment/business
reputation) and non-pecuniary damages (anxiety, depression). The compensation for moral
damages only applies to the non-pecuniary damages.
Right to reputation is protected via arts 3 & 35 CCQ, and s. 4 Charter
Still need to go thru art 1457 (for breach of personality rights): injury, fault and causation.
Question is: does a violation of arts 3, 35 or s. 4 necessarily constitute a fault for purposes of civil
liability? NO, see section on relationship between private and public law. (Dissent in Parizeau
argues for need to prove a fault beyond mere infringement of the right. Similarly, in Aubry, the
dissent argued that the infringement of the pfs right to her own image was not enough, needed to
show some prejudice: humiliation, shame etc.). Thus need to prove fault on standard of
reasonableness.
Approaches used in moral damage cases (conceptual, functional and personal) are also used in
defamation case in Qc, since defamation is a particular manifestation of moral damages. However,
courts in Qc tend to use the conceptual approach with some flavor of the personal approach in
defamation cases: a reputation is worth X, and because this person is a politician, add Y.
Defamation can be:
o Intentional: want to cause harm, willingness/desire motivates the defamation
o Unintentional: harm is caused thru lack of prudence, unreasonable behavior, carelessness
o Thus intention is not necessary for defamation, but comes into play in the assessment of
damages.
Defamation need not be a false statement; it can also be a true statement used to hurt the person
(refer to Gravel, even if not in this section). In such a scenario, courts usually insist on proof of
malicious intent.
There is no cap for defamation. Should there be one? (Jukier)
o Makes no sense not to have cap if defamation is a form of moral damage since other
forms of moral damages do have a cap.
o Nature of the injury calls for cap (often temporary or not taken seriously)
o Alternative remedies (retraction, apology [could be a double-edge sword, as it can remind
people of the comment], injunction [but only in limited circumstances cause freedom of
speech], reply, publication of court decision)
o Conflicting rights (freedom of expression v. right to reputation)
o Defamed person is also compensated for pecuniary losses, so compensation for moral
damage as a result of defamation should be minimal.
o Lamer (Snyder) also argues for a cap to defamation.
Counter arguments to a cap:
o Should not be a cap for moral damage period,
o Cap would perpetuate stigma that moral prejudice not as worthy of compensation as other
types of prejudices,
o No cap better for restitutio in integrum,
o Cap as a license to defame
Elements of a defamation claim that affect quantum of damages:
o Reputation of the defamed person (bad reputation to start with?)
o Status (public figure or self-employed person relying on reputation?)
o Distribution of comment (wide spread or limited? Remember Jukier: extent of
dissemination depends on public: small town v. larger city)
o Credibility of comment (refer to Parizeau)
o Behavior of def (retracted comment, apologized?)

Length of effect of statement (ephemeral or long-lasting?)

Gravity of statement (subjective evaluation)
Effect of comment on defamed person and entourage (quite subjective)
Whether pf mitigated loss (reacted publicly or stayed silent, allowing the comment to run
free)
There is a tension between defamation (right to reputation and privacy) and right of free speech.
Defense to claim of defamation: fair comment (commentaire loyal) which is CML defense (in
CVL, we just ask if the comment was unreasonable): 1) info is credible (or credible to defamer)
and 2) comment is made in the public interest. Also, of course, right to freedom of speech
protected by both Qc and Canadian Charter.
Defamation damages tend to be lower in Qc. In cases of intentional defamation, can claim
punitive/exemplary damages as per s. 49(2) of Qc Charter.
o
o
o
o

Class 12: Relationship between Private and Public Law

Breach of a fundamental right can constitute a moral damage.
Prior to Qc Charter (1975) and Canadian Charter (1982), some fundamental rights (mostly
political: freedom of association, freedom of expression, right to physical integrity) were protected
via art 1053 CCLC.
Fundamental right enshrined in Canadian Charter, and also Qc Charter (semi-entrenched, quasiconstitutional document)
Qc Charter goes further than Canadian Charter, cause governs not only public but also private law.
(Lebel)
Qc Charter, ss. 1-38 have relative preponderance over other laws unless explicitly derogated from.
Note that elements of Qc Charter are also duplicated in CCQ (arts 3, 10, 32, 35 etc). Raises
question: is breach of a Charter right to be treated under rules of civil liability, or does Charter
provide autonomous remedy (note remedy provided by s. 49)?
o According to SCC in Beliveau (Gonthier), Charter is not autonomous regime (breach of
fundamental right protected by Charter is a civil fault and must be subject to same rules
of civil liability): must prove illicit interference with the right and that the interference
was faulty (i.e. unreasonable). This is because fundamental rights, prior to Charter, were
protected by CCLC and rules of civil liability, so fact that they are now part of the
Charter does not change their nature. Additionally, both are compensatory in nature, and
we do not want to allow double compensation (as would be the case if Charter was
autonomous). Finally, Gonthier argues that the relative preponderance (s. 52) of the
Charter does not apply to s. 49.
o Dissent in Beliveau (LH-D) believes s. 49(2) is distinct from civil liability, cause
punitive and exist for the purpose of deterrence and not compensatory in nature (illicit act
must be intentional for availability of punitive damages, factors to consider are in art
1621). Thus s. 49(2) can be available by itself. Majority disagrees and sees s. 49(2) as
inseparable from a claim for civil damages: a claim under s. 49(2) is necessarily
incidental to a claim under s. 49(1) or art 1457. LH-D repeats the same comments in
Aubry. We could also mention that Charter and art 1457 are not mirror images and that
punitive damages are not traditionally part of CVL. Finally, LH-D argues that the
relative preponderance of the Charter applies to s. 49 because this section is necessarily
incidental to the protection of the rights protected under ss. 1-38 (besides, if ambiguity
exists, resolved in keeping in mind purpose of the Charter, s. 53).
o Note that Lebel article suggests that courts in Qc have tended to follow LH-Ds
perspective: punitive damages are independent from civil liability, and are therefore
available regardless of proof of prejudice as per the tools of civil liability. Thus s. 49(2) is
an independent/autonomous remedy. But how can one have punitive damages in the
absence of an injury?
Another question: is the violation of a right protected by Charter necessarily a fault?

Bliveau : Gonthier seems to suggest that the mere infringement of a fundamental right is
a fault, but it is not clear if this is really what he meant to say. Lamer, in Aubry, does not
believe that this is the case.
o Aubry: The majority does not really address the question, but dissent (Lamer), says that
the mere infringement of a fundamental right is not a fault (it is not objectively
unreasonable); must need to prove fault and injury beyond the illicit infringement of the
fundamental right. Again, this is because to obtain compensation for the infringement of a
fundamental right prior to the advent of the Charter, had to go thru civil liability. Note
that even if an infringement is not necessarily faulty, there was a fault because the
photographer could have asked permission to use the picture, but did not. The dissent in
Aubry thought there was a fault but no injury.
o According to Lebel and Popovici and Bliveau, there can sometimes be an illicit
infringement which is non-faulty (firemen example, or again if the infringement is caused
by a minor or incapacitated major who cannot be faulty at law).
o Thus for an infringement of a fundamental right, must ask: 1) is there an illicit
infringement?, 2) is the infringement faulty (unreasonable)?
Note that in cases of an infringement of a fundamental right protected by the Charter, there is
always a need to balance the infringed right with other values and protected rights (s. 9.1: clearest
example: defamation and freedom of expression)
Popovici argues that an illicit infringement of a right is a separate injury in of itself, even if not all
of the injury. Thus an infringement is deserving of at least minimal compensation. Nevertheless,
believes that infringement of a fundamental right guaranteed by the Charter is not necessarily
faulty: thus for both for the infringement and the injury above and beyond the infringement, one
has to prove injury, fault and causation. In this sense thinks that Charter is autonomous remedy.
This would fit with LH-Ds belief that s. 49(2) is an autonomous regime (if s. 49(2) is concerned
with punitive damages, and is an autonomous remedy, then the mere infringement, if intentional
and regardless of an injury above and beyond the infringement, is subject to compensation). Also
argues that an infringement of a fundamental right is necessarily illicit v-a-v the right, but not
necessarily v-a-v the object of the right. This idea has not been addressed by the courts.
o

In Viger, despite the fact that the K between Viger and the municipality was cancelled,
Viger still got the land, and this is the reason why there can be a claim of unjust
enrichment?

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