McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
“Age is not an idiosyncrasy.”
what can be reasonably expected from a child of the same age, intelligence and experience.
conduct “symbolic of tastes and simplicity of boyhood”
reasonable child of corresponding age
one couldn’t expect a 12-year-old to understand these causes and effects.
“Capacité de discernment” (a.1457 CCQ: “where he is endowed with reason and fails in this duty”)
Two schools of thought: discernment is a separate requirement, or part of the fault requirement (see Kasirer).
The child knew right from wrong enough to know that he shouldn’t have been throwing stones.
Capacity: The idea of fault is based on individual freedom to choose a course of action (free will).
Civil law asks: Did the defendant have capacity of discernment?
Civil law talks about the ability to distinguish between right and wrong.
Common law has a dilemma between:
prioritizing deterrence or punishment—in which case it would take the subjective approach
Context, abilities, character:
context: Common law and civil law both take context into account (time and place of incident; weather, emergency, etc.)
character and abilities:
1. lower-than-average: The standard of care is not reduced.
This position is shared by common law and civil law.
If we take abilities or character into account, we may be losing sight of the goal of compensation.
An “objective” standard forces people to be prudent and not undertake activities beyond their abilities.
Exceptions are made in the case of significant physical disabilities.
2. higher-than-average: The standard of care is increased.
This may be true if the defendant presents himself or herself as having higher-than-average abilities or skill, even if he or she really doesn’t!
Professional (or community standards) are considered as reasonableness standards.
e.g., in Ter Neuzen v. Korn refers to the “prudent and diligent doctor in the same circumstances”:
If the field is technical, expert witnesses define the standard.
But the court can also find the profession’s (or community’s) standards to be unreasonable on common-sense grounds.
The standard for communities is similar to that for professions: If the community’s standards are sub-standard, even someone who conforms can be at fault. (see Waldick v. Malcolm)
Roberge v. Bolduc,  1 S.C.R. 374. (CB1p270)
Richard Dorion, a notary, advised Roberge and Beaupré not to buy a house based on uncertainty with the seller’s title. The seller had bought the house six years earlier from a caisse populaire, which had obtained the house through a hypothec when its owner went bankrupt. Although it was questionable whether the caisse really should have obtained the house, the bankrupt owner had not contested the judgement, and the caisse’s title was therefore valid through res judicata. Dorion seems to have been ignored this principle, and incorrectly advised Roberge and Beaupré that the seller’s title was uncertain. They did not buy the house. Dorion was clearly wrong, but