In Lévesque v. Hudon, 2013 QCCA
920, the Quebec Court of Appeal has confirmed that the theory
of loss of chance or increase of risk does not apply to establish
causation under the law of Quebec.
The plaintiff sued a physician for injury resulting from a
delayed diagnosis by the physician which prevented treatment on a
timely basis. The Superior Court decision held that each day was
crucial to the potential benefits of treatment. Accordingly, the
first instance judge held that a fault causing a delay of 48 hours
in the diagnosis and treatment of the patient created a factual
presumption of causation between the fault and injuries suffered.
The court stated that timely treatment would have given the patient
a 70% chance of full recovery. Further, the fault causing a delay
in diagnosis and treatment deprived the patient of 60% of the
chance of a full recovery. Accordingly, the Superior Court awarded
the patient compensation for 42% of the damages suffered.
The Quebec Court of Appeal reversed the first instance judgment
as regards causation on the basis of several manifest errors of
fact and law. The Court of Appeal held that the evidence before the
Superior Court did not permit a "serious, precise and
concordant" presumption as to causation which was described as
a question of fact. The Quebec law regarding causation was held to
apply uniformly to acts of commission and omission. The Court of
Appeal held that the first instance judge erred in focusing on the
occurrence of the injury rather than whether, on a balance of
probabilities, the fault caused the injury. The evidence did not
indicate that treatment within the time framework provided by the
defendant would likely have caused the injuries suffered by the
plaintiff. Further, the calculation resulting in compensation for
42% of the injury suffered constituted an application of the theory
of loss of chance which had been eliminated from the Quebec law of
causation by the decision in Laferrière v. Lawson  1
S.C.R. 541. In essence, the Superior Court awarded damages on
the basis of a 42% loss of a chance of full recovery. The Court of
Appeal held that this finding was incorrect in law and based upon
an erroneous presumption of fact as to causation.
The decision in Lévesque indicates clearly that,
under the law of Quebec, causation is a matter of establishing on a
balance of probabilities the causal link between the fault and the
damages suffered. Causation cannot be established merely because
the fault has increased the risk of loss or injury, which in its
obverse form is a reduction in the chance of avoiding the loss or
injury. Further, the decision indicates clearly that the same
concept of causation applies to acts of omission, as well as to
acts of commission. While the Lévesque decision was
decided in the context of a medical liability claim, its analysis
of causation and decision that loss of chance is not relevant apply
in all cases of civil liability.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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