4. Extra-Contractual Liability In Quebec

In Quebec, the general regime for extra-contractual liability (comparable to common law tort liability) is set out in Article 1457 of the CCQ, which reads:

    Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

    Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

    He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

Subsequent articles in the Civil Code of Quebec deal with particular cases, such as liability for the act of a minor and liability for the act of a thing. To bring a successful action for extra-contractual liability in Quebec, a plaintiff must prove:

  • Fault on the part of the defendant.


  • Injury suffered by the plaintiff.


  • A causal link between the fault and the injury.

4.1 Duty of Care

Unlike the common law, the civil law creates a generalized duty of care between all individuals living together in a society. While at first this may seem to broaden the scope of extra-contractual liability in Quebec, the civil law has adopted a more restrictive approach to both fault and causation to compensate.

A typical situation where the common law and the civil law approach differs is the case of the bystander. In a common law jurisdiction, a bystander who comes across a person in distress and does nothing to help them cannot be held responsible, as they have no duty of care towards the person. In a civil law jurisdiction, a bystander is required to take all reasonable steps to help an individual in distress, though is not required to put his or her own life at risk.

4.2 Standard of Care/Fault

The approach of the civil law to fault and the standard of care is substantially similar to that of the common law. Both systems adopted an objective standard to measure the conduct of the defendant. Whereas the common law archetype is the fictional “reasonable person”, the traditional civilist archetype who, doubtless reflecting the prejudices of the age, used to be the bon père de famille (literally, the good head of the household). More recently, two new archetypes have become discernible in the literature — the honnête citoyen (the honest citizen) and the personne prudente et diligente (the prudent and diligent person).

To blunt the impact of the generalised duty of care, the courts sometimes have recourse to the language of fault. The personne prudente et diligente, while prudent and diligent, is not expected to foresee all possible consequences of his or her actions. Thus, the court might find that the injury inflicted on the plaintiff is so unexpected or beyond reason, that no fault exists on the part of the defendant.

4.3 Injury

The law of injury in Quebec and the rest of Canada does not differ by a great deal. If anything, the fact that in Quebec, injury and causation are treated separately has led to a greater emphasis on each one. One particularity of the Civil Code of Quebec (which also existed in the Civil Code of Lower Canada) is the recognition of moral damages as a recoverable head of damages. Moral damages have been used to compensate solatium doloris (the harm felt by a spouse or relative for the death of the plaintiff) and also to compensate the plaintiff in cases of nervous shock.

4.4 Causation

Causation, in particular remoteness, is used as a factor by civilist courts to limit the effect of a generalised duty of care. A plaintiff will not be held responsible for losses that are held to be too remote from his fault.

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