Andria Saba

COMM 315 Winter 2016

Chapter 7 - Employment Law

7.1 Introduction

The relationship between employer and employee takes the form of a verbal or written
contract.
Employment contracts are considered under two broad areas of study:
Individual contract: terms of which are negotiated and agreed to between an
employee and an employer. The conditions in this agreement only apply
specifically to this relationship.
Collective agreement: contract between employer and a group of employees (a
union). Several members of the group form a negotiating team and meet with the
employers representatives to negotiate terms and conditions.

7.2 The Individual Contract of Employment

Introduction:
This contract is governed principally by the rules found in the Civil Code of Quebec.
Civil Code of Quebec:
Defines and outlines what constitutes an employment contract, the term, form, renewal
and termination, restrictive covenants and non-competition clause and the distinction
between an employee and a contractor.
The Contract:
Defined by these essential elements of the Civil Code:
It is a contract, subject to all the general rules of contract.
It is bilateral (requires both parties to undertake to do something; the
employee does the work, and the employer pays the employee for the
work).
Requires the work to be done continuously until the contract is terminated
Requires the employee to be the subordinate of the employer.
The work must be done by the employee, the employee cannot delegate
to someone else.
The contract must have a limited duration.
Term:
Fixed term: has clearly agreed termination date, no notice or other formality
required for its ending.
If the work is completed before this date, the employer cannot lay-off.
The term of the contract must be fully respected.
Indeterminate term: parties have agreed not to set a specific termination date,
but is not for an unlimited duration.
Contract will continue until one of the parties gives notice of the
termination.
There may be a pause in the contract, but not for more than 6 months.

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Form:
No form is required for a contract of employment.
The law leaves it entirely to the parties to determine what form they want their
contract to take.
Employer/Employee Obligations and Rights:
Employers main obligation = allow employee to carry out the work, to pay
wage/salary and to ensure that the work can be done safely.
Employers right = insist that work is done in a particular way and having
employees follow a certain pattern of behaviour and if the employee does not
conform to these rules, the employer has the right to discipline the employee.
Disciplinary measures begin with a verbal and then a written warning. Penalties
can include suspension, transfer of position, demotion and the ultimate penalty is
to fire (terminate) the employee.
Grounds for instant dismissal (being dismissed for a cause): starting a fire,
smoking where it is dangerous, damaging employers equipment, stealing from
employer, falling asleep, fighting with other employees, staying away from work
without notification, etc.
Employees obligation = work carefully, promptly and to the best of their ability, to
be honest, loyal and not divulge confidential information (unless it is a question of
public security and safety).
Restrictive Covenants and Non-Competition Clauses:
Businesses require employees to sign a clause restricting their rights to use or
reveal confidential information, even after leaving the service of the employer.
Restrictive Covenants and Non-Competition Clauses refer to clauses that contain
restrictions such as not allowing an employee to work for another company in the
same industry or start a new company after leaving for a fixed period of time.
If an employer has fired the employee with short notice or forced them to quit, the
Civil Code prohibits the employer from invoking this clause.
Renewal and Termination:
Tacit renewal: if there is no objection from the employer and the employee
continues to work for five days after the original contract expires, it is
automatically renewed with the same conditions except it is now with an
indeterminate term. To cancel now, one party must give notice to the other.
According to the Civil Code there is no specific time period to cancel a contract, it
only states that it must be given in reasonable time.
Under the Labour Standards Act (Quebec law), there are minimum periods of
notice based on length of service.
Certificate of Employment states the length of the term of employment and the
kind of work done but no mention of information about the employees
performance. It is issued when a contract of employment is terminated.
Contractors:
Subordination: an essential element of the employer/employee relationship.
Contractor refers to someone who undertakes to do a job for someone.

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The relationship between a contractor and a client is different from the

employer/employee relationship.
The contractor does not have the same element of subordination. The contractor
decides when the job will be done, which materials and tools to use and how
many people will carry out the work.
Difference between an employer/employee relationship and a client/contractor
relationship:
Subordinate and control: employer has control over the whole work to be
done, and the contractor comes to an agreement with the client and the
contractor controls the job.
Tools and equipment: employer owns and provides the tools used by the
employee, a contractor owns his own tools and brings them to the job.
Profit: an employee earns a wage or salary, a contractor can increase
profit by being more efficient.
Risk of loss: the employer bears the loss if a job takes more time or more
materials, for any changes the contractor assumes all of the risk and not
the client.
When an employee is paid, the employer is required to withhold a certain amount
of income tax purposes.
When a contractor is paid, they are paid the full amount of the contracted price
without deductions. The contractor is responsible for making the appropriate
payments.

The Quebec Labour Standards Act:

Quebec law provides for several minimum conditions (are public order: wages, hours of
work, vacations, holidays, etc.) of work which apply to most employees in the province,
but does not apply to senior management.
Must invoke the Civil Code and the Quebec Charter to argue employment contract
violations and discrimination.
Sections of the Quebec Labour Standards Act:
Wages
The minimum wage is reevaluated every year.
Current minimum wage is $10.15/hour or $8.75/hour for those receiving
tips.
Wage must be paid in cash, cheque or direct deposit and the employee
must receive a pay slip.
Nothing can be deducted by the employees wage unless required by law
or the employee has requested.
Wage must be paid at intervals of no more than 16 days.
Part-time and full-time employees are entitled to the same wage.
Tips or gratuities received by the employee are exclusive property of the
employee.
Hours of Work
Regular work week before overtime is 40 hours per week.

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Overtime is paid at time-and-one-half.

An employee can request that overtime be compensated by paid leave
equivalent to overtime. The leave must be taken during the 12 months
following the overtime, otherwise the overtime must be paid.
An employee is considered to be at work when:
Available at the place of employment and required to wait for work
to be assigned.
During the break periods permitted by the employer.
Travelling as required by the employer.
Call-in pay: when an employee comes into work and can only work for
three hours or less, must be paid for three hours.
An employee may refuse to work more than 4 hours after regular daily
working hours, or more than 14 working hours in a 24 hour period.
Paid Vacation
Two elements to the legislation relating to vacations:
The employee is entitled to be absent while taking an annual
vacation without fear of losing their job.
The employee is entitled to vacation pay while on holiday, based
on the employees gross wages during the past year.
Vacation period is determined by the length of time the employee has
worked continuously for an employer, based on a reference year which
runs from May 1 to April 30.
If an employee has worked for an employer for less than one year, they
are entitled to one day for every month of work during the reference year.
By law, the maximum is 10 working days, which is two weeks.
An employee who has worked for 1-5 years (up to 5 years) for an
employer is entitled to two weeks of vacation.
An employee who has worked for 5 years or more is entitled to 3 weeks
of vacation.
Employers can give longer vacation time but not less.
The employee must take the vacation within 12 months following the end
of the reference year.
An employee who takes two weeks or less is entitled to vacation pay of
4% of the gross wages earned during the reference year.
An employee who is entitled to 3 weeks vacation receives 6% of the
gross wages earned.
Paid Statutory Holidays
For each statutory holiday, the employer must pay the employees 1/20 of
the wages earned during the four complete weeks of pay before the
holiday, excluding overtime.
If an employee must work on a statutory holiday, they are paid in their
usual wage plus the extra wages required under section 62 or be
compensated with a one-day holiday to be used within three weeks.

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To benefit from a statutory holiday, the employee cannot be absent on the

day before or after the holiday.
Rest Periods
Employees are entitled to various rest periods; unpaid 30-minute lunch
break for every 5 hours of work and one day off every week.
Coffee breaks are not required by law.
Employee must be paid for coffee breaks if the employer offers such
breaks.
Other Leaves
Notice must be given as soon as possible to the employer if an employee
will be missing work, because:
Weekly rest - employee is entitled to 32 consecutive hours of rest
each week.
Meal break - employee entitled to a 30 minute meal break after 5
consecutive hours of work, unpaid.
Family responsibilities - up to 10 days per year (unpaid) can be
requested to look after matters concerning the care and health of
family.
One day paid on the death of consort, child, parent, brother or
sister, and an additional 4 days off without pay.
One day unpaid on the death of a son/daughter-in-law,
brother/sister-in-law, grandparent or grandchild.
Five days off for the birth or adoption of a child. First 2 days are
paid if the employee has been working for the employer for a
minimum of 60 days, less than 60 days would mean that the full 5
days are unpaid.
Maternity Leave
Unpaid for up to 18 weeks.
Begin no sooner than 16 weeks before the expected date of birth and
ending no later than 18 weeks after the week of the delivery.
At the end of the maternity leave, the employer is entitled to return the job
and offer the increased wage and benefits put in place during the
employees absence.
Parental Leave
Parents of a newborn or adopted child may have a leave of 52
consecutive weeks, but unpaid.
An employee on parental or maternity leave that does not return to work
on the expected date is considered to have resigned their position and
will not be paid.
Psychological Harassment
Employees are entitled to work in an environment that is free of any vexatious
behaviour.
A single serious act can constitute psychological harassment.
Employers must put a stop to it and take preventative actions.

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This protection is also extended to senior managers.

Notice of Termination of an Employment Contract
Employer must give written notice to terminate the employment contract when an
employee has been on staff for more than three months.
The length of the notice period depends on the length of the employment period:
< 3 months = none required
3 months - 1 year = 1 week
1 - 5 years = 2 weeks
5 - 10 years = 4 weeks
> 10 years = 8 weeks
Some employers chose not to have the employee continue to work during the
notice period so instead they pay the employee for the required period and the
employee leaves immediately.
Employees receive 4% of all gross wages earned during the current reference
year as vacation pay.
No notice required for a fixed term contract that has expired.
No notice required to be given when to an employee who has committed a
serious fault and is fired for cause.
Commission des normes du travail: a body of the Quebec Labour Standards Act
that is meant to supervise the implementation and application of the Labour
Standards by publishing information to inform employees and employers of their
rights and receives complaints from employees and acts to help them.
Employers are charged a contribution to pay the costs of operating the
Commission, this is a percentage of the employer's payroll (not to exceed 1%).
Dismissal not made for Good and Sufficient Cause
An employee who has been working for an employer for at least two years must
be given a valid reason for dismissal.
Three main reasons justifying dismissal:
En employees incompetence
Restructuring of a business
If the business is dealing with financial difficulties
Employee can claim unjustified dismissal and file a complaint with the
Commission des relations du travail within 45 days if the reasoning is not fair.

The Quebec Charter of Human Rights and Freedoms:

Deals with matters such as employment contracts, discrimination, employment
applications and employment agencies.
See chapter 4.

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Chapter 8 - Principles of Contract Law

8.1 Obligations

Contracts: business agreements that people enter voluntarily.

Contracts create obligations and these obligations are the building blocks used to
construct contracts.
In order for an obligation to exist in law there are three basic requirements:
There must be at least two parties who agree to do something for each other.
There must be a prestation that is the object of the obligation.
There must be a lawful reason for undertaking the obligation.
Obligations can come into existence in one of two ways:
Commonly emerge from contracts (verbal or written).
Can also arise from an act carried out by someone (ie causing damage to a
person or their property accidentally or deliberately).
Difference between legal and natural obligations:
Legal obligation: an obligation sanctioned by laws and enforceable before the
courts. Failure to discharge your obligation gives the person to whom you are
obligated the right to demand performance and/or damages.
Natural obligation: an obligation that binds you in conscience only.

8.2 Contracts
Definition:
Contracts are the most common source of legal obligations in business.
Obligations are the consequences of the agreement or contract between two or more
parties.
A contract is a bilateral agreement since obligations operate in both directions and both
parties agree to commit themselves to certain acts.
Because the legal obligations are enforceable by the courts, a contract can be
considered as creating a law between the parties.
Classification of Contracts:
Some contracts need very little negotiation and some obligate one party without any
return from the other party.
Types of contracts:
Contracts of adhesion: the conditions are drawn up by only one of the parties and
the only choice available to the other party is to accept or reject the conditions,
enter the contract or not enter it (airline tickets, transportation contracts).
Contracts by mutual agreement: both parties discuss and agree on all of the
conditions of the contract.
Synallagmatic or bilateral contracts: both parties have agreed to perform an
obligation (A pays $10 to B and B gives A a book).

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Unilateral contracts: only one party undertakes to perform an obligation (a will or

a pledge to donate to a charity).
Onerous contracts: each party received something in return for undertaking an
obligation to the other party (A receives a book and in return agrees to pay B
$10).
Gratuitous contracts: one party undertakes an obligation that benefits the other
party, but the the other party does nothing for the first person (an agreement to
donate money to a charity or looking after a friends child without being paid).
Commutative contracts: both parties know in detail how much each has to pay
and what each will received in return (food company buys 1000 apples and
agrees to pay $1 per apple).
Aleatory contracts: the full extent of the obligations is uncertain at the time the
contract is entered into and will only be established at a later date (food company
agrees in January to buy all of the apples from a farmer at $1 each; the number
of apples to be sold is not determined yet).
Contracts of instantaneous performance: there is a one-time discharge of the
obligations undertaken (a bicycle is sold and delivered and the price of $175 is
paid).
Contracts of successive performance: the obligation is to continue doing
something on a regular basis for a specified period of time ( an employment
contract by which the employee goes to work every day and receives weekly pay
for their services, or a contractor agrees to mow a lawn once a week for a fee of
$25).
Consumer contracts: a natural person acquires, for personal use, some property
or service from a business that offers such property or service to the public (dealt
with at length under the Consumer Protection Act).
A typical agreement can be a blend of different types of contracts.

Offer and Acceptance:

In order for for people to enter an agreement voluntarily, there must be a clear meeting
of the minds of the people involved.
Meeting of the minds takes place as a result of a negotiation.
Parties must agree on the same thing at the same time for the contract to come into
existence.
Offer: a clear, precise, firm proposition containing a genuine intention to enter into a
binding contract. As a general rule, an offer exists when there is a specific merchandise
for sale.
Once a specific offer is made, acceptance will create a contract as long as the
acceptance is in the same term as the offer.
Any conditions added to the offer or any changes make it a counter-offer which is
then subject to acceptance.
Acceptance: an unqualified, unconditional assent which has been communicated to the
person making the offer.
A contract is formed when and where acceptance is received by the offeror.

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If the offeror is in London and speaking over the phone with the offeree in
Montreal, the contract is formed in London. If the offeree sends acceptance by
fax to the offeror in London, the contract is formed in London.

Conditions for the Formation of Contracts:

Essential elements required for the formation of a valid contract are: an exchange, of
consents, between persons having capacity to contract, in any form unless a special
form is required a cause, an object.
Exchange
The exchange of consents between the parties of a contract may be
express or tacit.
Consent is express when there is a clear indication on the part of the
person, a statement.
Consent is tacit when nothing is said but the person carries out some
action to indicate acceptance, ie a person who walks into a barber shop
and sits down in his chair.
Offer and Acceptance
Contract comes into existence where and when the acceptance of the
offer is received, unless stated otherwise by law.
If the party states that the offer will be open for a set amount of time, the
offer cannot be revoked (cancelled) before that time. If no time period is
stated, the offer can be revoked at any time.
If the acceptance does not correspond to the terms of the offer, it is not
really an acceptance but can be accepted as a new counter-offer.
Silence cannot be interpreted as acceptance of an offer.
A promise to enter a contract is not the same as an acceptance, however,
the promise cannot be to enter a contract cannot be taken back.
Consent - Qualities and Defects
The consent to enter a contract must be given freely and willingly, no
undue or illegal pressure put on the person. If this is the case, the
contract will be nullified.
Defects of consent (error, fraud, fear and lesion) render the consent
invalid.
Error: an honest misunderstanding (one person believes the
contract is one of sale while the other believes in good faith that it
is a contract of lease).
Fraud: closely related to error, an error induced by fraud. Occurs
when one person tricks another into making an error or gives
untrue information causing the other person to enter the contract.
Fear: when someone uses fear to get someone to give consent,
making the agreement not legally valid. Fear can also be derived
from the use of a position of authority over another person.
Lesion: taking financial advantage of someone who is presumed
not to know better. Lesion can be applied to contracts entered into

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by minors or those under protective supervision. Example: if a

storekeeper sells a 14 year-old an instrument worth $250 for
$600, the law allows the contract to be annulled.
These seven elements enable the evaluation of a contract in order to
determine whether it is valid under the terms of our Civil Code.
Capacity to Contract (legal capacity)
In order for a contract to be valid, the parties must have the legal capacity
to enter into contracts.
Generally, minors (under the age of 18) and persons under protective
supervision (due to physical or mental illness or disability) are declared to
be legally incapable.
Minors:
As of 14 years of age, are considered to be of full age for all
matters related to their employment of for operating a business.
May validly enter into contracts to look after their usual and
ordinary needs (clothing, books, food, etc.).
May be assisted by a legal guardian.
Are legally represented by their mother and father.
Under certain conditions a minor can be emancipated.
Persons under protective supervision:
Have no legal capacity, cannot enter into legal contracts.
Are over the age of 18.
Cause
A person who enters a contract has a reason for undertaking the
obligations contained in the contract. Does not have to be expressed in
the contract.
If the reason for entering a contract is illegal then the contract will not be
considered valid.
Objects
Every contract results in the carrying out of a juridical operation such as a
sale, lease or exchange.
The only restriction is if there is an illegal action.
Form
Most contracts do not require any particular wording or form to be used.
Marriage contracts, hypothecs (mortgages), notarial wills, insurance
policies and collective labour agreements do have a specified form.

Nature of Nullity:
Contracts entered into which do not meet the conditions of formations previously
mentioned risk being nullified and deemed to have never existed.
Two degrees of nullity exist:
Absolute Nullity: a contract which puts at risk protections of the general
public interest is considered absolutely null.

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Relative Nullity: a contract that violates protections of private individual

interests can be declared relatively null. Only the parties directly involved
in the contract in question can invoke relative nullity. Unlike absolute
nullity, parties who can invoke relative nullity may choose to confirm or
maintain the contract regardless of the problem in the conditions of its
formation.
Effect of Nullity
A contract deemed null is considered to have never existed.
Parties must be placed in the same state they were before entering into
the contract.

Interpretation of Contracts:
Articles in the Civil Code set out the principles of interpretation of contracts to assist
business people and the courts understand and interpret contracts.
Court should try and uncover the real intention or purpose for entering the
contract.
Examine the historical nature of the relation between the two parties involved.
Clauses in the contract must be interpreted in line with the other clauses in the
contract.
An existing clause should have an effect rather than no effect.
Words with multiple meaning used must be given a meaning.
In the case of doubt, the court will favour the party that agreed to the obligations
rather than the party that imposed them.
Incidental (non-expressed) associated obligations must be recognized by the
courts.
An external clause, cited in a contract, binds all parties except when it is a
consumer contract or contract adhesion in which the consumer or adhering party
could not have known and was not informed of its existence.
An illegible or incomprehensible clause in a consumer or adhesion contract is
null and has no effect unless adequately explained.
An abusive clause is automatically null.
A clause that is nullified does not render the whole contract invalid if it is possible
for the contract to exist without this clause.
Performance of Contracts:
Failure to fulfill obligations of a contract without justification gives the creditor, under the
Civil Code, the right to:
Force performance through injunction or by having the obligation performed at
the expense of the debtor.
Have the contract annulled by resolution (both parties must restore to each other,
contract is then deemed never to have existed), or cancelled by resiliation
(contract ceases to exist for the future with no restoration of prestations).
Reduce the scope of his share of related obligations.
Refused to perform his share of the obligations.

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Hold on to the debtors property until is paid for work related to the property.
Injunction: a creditor institutes an action seeking a court order instructing a debtor to
cease doing, not do, or to perform a particular act. A permanent injunction is granted as
part of the final trial judgement.
Interlocutory Injunction: possible only after an action has been instituted. A temporary
injunction may be granted for the duration of the proceedings until a trial judgement is
rendered, if the plaintiff can demonstrate; interest and seriousness of the issue, that it is
necessary to avoid irreparable injury before final judgement, that on the balance of
convenience he will suffer significantly more than the defendant.
Provisional Injunction: in case of urgency, the plaintiff can request that an injunction be
issued before the defendant has received notice of an interlocutory hearing. This
injunction can last no more than 10 days.

Default of Contract:
Prior to taking any action against the debtor, the Civil Code requires the debtor to be
placed in default:
By the contract itself, when the debtor fails to perform an obligation by a
stipulated deadline.
By extrajudicial demand, by which the creditor sends the debtor a letter
requesting performance within a certain period of time.
By operation of law, where the debtor fails to perform an obligation within a
useful time or failed to perform immediately in case of urgency or where
performance becomes impossible due to the debtors fault.
If the creditor files a legal action against the debtor without placing him in default first,
the debtor maintains the right to perform the obligation within a reasonable time.
Damages:
Present Damages
Failure on the part of the debtor to fulfill his obligations can lead to bodily, moral
or material damages.
These damages have to be directly attributed to the fault of the debtor and
assessable in their present value.
Future Damages
Possible to seek future damages as long as they are certain to take place and
are assessable.
Example: an employee fired for unjustifiable reasons sues for breach of contract
and requests present lost wages and future wages based on how long it will take
to find another job.
Punitive Damages
Under certain circumstances, the failure to perform contractual obligations may
even open the possibility to seek punitive damages as directed by law.
Punitive damages are meant to be used as a tool to teach the debtor a lesson
and for preventative purposes. This is why the amount awarded cannot surpass
these purposes.

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Four factors when calculating the amount of punitive damages:

The gravity of the fault committed by the debtor,
The patrimonial value of the debtor,
The amount already awarded to the creditor for the bodily, moral or
material damages,
If the debtor is insured one must determine what level of damages will be
covered by the insurance provider.
Penal Damages
A penal (penalty) clause is a contractual stipulation that is used as a mean of
motivating a contracting party to perform obligations.
Failure to perform obligations allows the creditor to claim from the debtor the
stipulated amount of the damages for default.
The creditor may not exercise both the penal clause and require performance of
the debtors obligations.
The creditor need only prove that the debtor violated the penal clause.

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Chapter 9 Civil Liability

9.1 Introduction
Description:
Civil liability = civil responsibility
The principle of civil liability holds that people must be held accountable or liable for their
actions and for the consequences of their actions.
Vicarious liability is when a person is held responsible for injuries caused to others even
though they may not personally have caused the damages (i.e. things that are caused
by people under their control like children or employees, or things under their control like
machines or buildings).
Contractual vs Extra-Contractual Liability:
When a contract exists between two people, the failure of one party to carry out their
obligations may result in a legal action, the other party seeks compensation. The Civil
Code states that every person has a duty to honour his contractual undertakings.
A person can cause damage to another person without being entered into a contract
with them, the person who caused the damage is civilly liable. This liability exists
whether the actions were intentional or unintentional.
9.2 Personal Liability
Conditions (found in the Civil Code):
Before a person can be found as personally liable, there are certain conditions that must
exist before the injured party can expect any compensation through the court system:
o Endowed with Reason: the person being sued must be capable of discerning
right from wrong.
A person with mental faculties deprive them of reason or a young child
may be free of responsibility for their actions.
Jurisprudence has found that a child must be at least 7 years of age or
older to be held responsible. The characteristics and circumstances will
determine if the rule is strictly applied.
If a person is not endowed with reason, they cannot be held responsible
for their actions and their actions are considered to be a force majeur or
superior force over which they have no control. In this cause the person
suing can seek compensation from the persons legal guardian.
Exception: when someone is under the influence of drugs or alcohol. The
person would still be held liable because the person deliberately entered
into this position.
o Fault: the person being sued must have committed a fault.
Fault is a violation of duty imposed by law that requires a person to be
aware of the consequences of their actions, expressed in the Civil Code.

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A person can be at fault for an action they have committed or by omitting

to do something expected of them.
When more than one person have together taken part in a wrongful act,
all can be held solidarily liable (each person at fault can be held liable for
100% of the damages).
In order to determine if the person is at fault, their actions or inactions are
compared to that of a reasonably prudent and diligent person within the
contact of the case at hand. Where the consequences of the actions
foreseeable? If they are not, then the person is not at fault.
Damages: the person being sued must not only have committed a fault but that
fault must also result in actual damages suffered by the victim.
Types of damages: bodily (physical injury), moral (psychological or
mental illness, or damage to a persons reputation), or material (medical
expenses or damaged property).
Damages must be certain and of the present form.
Damages can also be future if they are certain to take place and a dollar
value can be easily assessed (within a 3-year period under the Civil
Code).
Damages can also be punitive if the actions are proven to be intentional
and violate the victims Charter protected rights.
Damages can also be claimed by someone who indirectly suffered as a
result of the action of the person at fault (i.e. someone broke a window of
a building, a passer-byer was injured).
The Causal Link: there must be a causal link between the persons act or
omission and the damage that was caused.
Link has to be proven to the satisfaction of the court.

Defences:
The law offers a person being sued for civil liability some possible defences which may
exonerate them partially or totally from having to compensate for damages resulting from
a personal act.
Types of defences:
o Victims Actions: it is possible that the victims damages are linked to their own
fault; they presumed the risk or they aggravated the damages suffered.
Victims damages may be partially or wholly attributed to their own fault.
Contributory negligence: the victim and the person being sued are
both partially responsible for the damages.
Victim might have accepted the risk when undertaking an activity or
action, which means that there was a foreseeable possibility of damages.
The acceptance of risk may be possible through these three
methods: signing a contractual waiver absolving the defendant of
having to compensate the victim for damages (waiver is not
enforceable), displaying a notice stating that they are responsible
for something and displaying a warning notice to be cautious.

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Victim may aggravate the damages due to their inaction in addressing the
injury (i.e. refusing medical attention).
The person being sued will only be held accountable for the
amount of damages suffered before the aggravation.
The Good Samaritan: when someone causes damages in the process of helping
others.
In the case of trying to save someones life or donating food, the person
being sued is free of any responsibility if the injury was not intentional and
could not be foreseen.
In the case of a persons disclosure of a trade secret for public health and
safety, the person must demonstrate the interest of the general public
over that of the organization.
Superior Force: damages caused are not within the control of the person being
sued. They were unforeseeable and unstoppable acts (i.e. earthquakes, floods,
lightening and ice storms).
Another Person made it Worse (Novus Actus Interveniens): a person being sued
may be found totally or partially free of liability because the fault of another
weighs heavier than their own fault.
Improper Use: defence may arise based on the fact that the object was not used
for its purpose or used in a way that it was not designed for.

9.3 Indirect Liability

Liability of Parent:
Two possible recourses towards obtaining compensation from damages suffered due to
the fault of a child:
o Sue the child if they are at least 7 years of age
o Sue the parents
In order for the parents to be held responsible, three conditions must be fulfilled:
o The child must be a minor
o The parent must have parental authority over the child
o The damages must be the result of an act or fault of the minor
Parents can free themselves of this liability of they can prove that they exercised
sufficient surveillance or that they provided proper education to instill good values.
If the parents are not held liable, then the child can be.
A court judgement will give the plaintiff 10 years to exercise his rights against a child.
Liability of a Non-Parent:
A person other than a parent (babysitter or teacher) can be help responsible for
damages caused by a child.
Like in the case of the parents, the victim must demonstrate three conditions:
o Parent must have delegated authority over the child to the non-parent.
o The child must be a minor.
o The damages must be the result of an act or fault of the minor.

Andria Saba
COMM 315 Winter 2016

A non-parent must prove adequate surveillance or education over the child during the
delegated authority.
A person or an organization acting free of charge (i.e. grandparents) cannot be held
responsible unless they personally commit a grave fault.

Liability for Employees (Agents or Servants):

A business or an organization may be held responsible for damages caused by their
employees while they are carrying out their duties.
The victim needs to prove that:
o The person who caused the damages was an employee
o The employ was the one at fault
o It took place during the course of their employment
o The control over the employee was the employer
If the employer can prove that the employee was acting for their own benefit, the
employer is free of responsibility.
Liability for Acts of an Animal:
The victim must demonstrate that the owner or person in control failed in the surveillance
of the animal.
Three points of interest must be considered:
o The animal must be domesticated
o Both the owner and the person given custody of the animal may be held
responsible at the same time.
o The damages caused by the animal need not be the result of direct contact.
An owner of an animal can invoke superior force or the victims fault in his defense.
o The unforeseeable and unstoppable nature of the act must be proven
o The victims provocation of the animal will be considered
Liability for Damage due to Ruin of an Immovable:
Immovable = building, elevator, land, etc.
The owner of an immovable may be held responsible for any damages caused by its
partial or total ruin.
The onus rests on the owner, but can rebut the fault as a result of the victims fault (may
have failed to inform owner of necessary repairs).
The owner can claim superior force.
Liability of Manufacturer, Distributor and Seller for Safety Defects in Movables:
Causes for liability due to a safety defect:
o A product may cause damages stemming from being improperly manufactured.
o The design of the product itself may lead to damages when being used.
o Improperly preserved or presented products.
o The product causes damages due to improper use as a result of a lack of
information or indications of safety precautions.

Andria Saba
COMM 315 Winter 2016

The more complex the product, the greater the need for detailed labels and safety
instructions to be included.
A safety defect can cause all of the following to be liable, they cannot escape liability by
claiming they were not aware of the defect:
o The manufacturer
o The distributor
o The wholesaler or retailer
The can only escape liability if they can prove that the victim was aware of the defect or
can claim superior force.

Responsibility for Acts of a Thing:

Victim can sue the person who had the thing under their custody (not necessarily the
owner).
9.4 Limiting Civil Liability