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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 16 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

his conduct was consistent with notarial practice in Quebec (as attested by expert witnesses).

Issues

Can a professional be at fault for behaviour that conforms to the standards of his or her profession?

Holding

Yes, if the standards themselves are faulty.

Ratio

The judge argued that res judicata was a fundamental legal principle that a notary should have been able to apply; if notaries were not in the habit of doing so, their standards were faulty!

Comments

It’s interesting to compare this to medical liability cases, where the judges have no specialized knowledge and must rely on expert testimony. Since this case was about legal practice, the judge was able to form his own opinion.

Fault’s Relationship to Specific Norms

What is the effect of statutory norms on rules of conduct? Is breach of a statute equivalent to fault? (i.e., would strict liability apply, with no “reasonable person” test?)

Statutory rules are often aimed at ensuring safety

Statutes are often of a criminal nature, with punishment (fines) attached to breaches.

If courts considered statutory norms, they would be reinforcing legislators’ efforts.

Both common law and civil law think that statutory norms should be considered when assessing fault. However, courts disagree on how and how much statutes should matter.

15/10/02

In common law (negligence), there are two possibilities (aside from the UK tort of statutory breach):

1. breach = fault (US model)

2. breach is evidence of fault, but not proof (Canadian common law and civil law)

strong prima facie evidence: Morin v. Blais

weak (mere) evidence: Saskatchewan Wheat Pool

In civil law, statutory breach equals fault only if the statutory norm is equivalent to an elementary standard of care. (Morin v. Blais)

Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. (CB1p298)

Jurisdiction

Canada (Federal Court)

Facts

The Saskatchewan Wheat Pool delivered grain infested with rusty beetles to the Canadian Wheat Board, contrary to the Canada Grain Act. Rusty beetle testing is difficult and time-consuming, so no one knew about the infestation until after the wheat had been loaded onto a ship (at Thunder Bay). The ship had to be stopped and the Board had to pay to have the wheat fumigated. The Board sued the Pool not for negligence but for “statutory breach.” The Federal Courts ruled in favour of the Board but the Federal Court of Appeal reversed the judgement.

Issues

Did the mere breach of a statute confer upon the Board a civil right of action against the Pool?

Holding

No; the appeal was dismissed.

Ratio

In Canada, there is no separate tort of statutory breach. Statutory breach is part of the law of negligence. There is no absolute liability based on statutory breach in the absence of fault. Proof of statutory breach is “mere” evidence of negligence; the plaintiff must still prove fault (unreasonableness). In this case, the Pool was not at fault because it had taken reasonable care.  

Comments

I can’t believe you don’t have to throw away infested wheat—you just have to fumigate it (and it can still be eaten?).

Morin v. Blais, [1977] 1 S.C.R. 170. (CB1p311)

Jurisdiction

Quebec

Facts

At about 9pm, when the darkness was about 70-80%, Morin was driving a car at 55 to

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