In Quebec, it is normally the person claiming the damages who has the burden of proof. In other words, it is the victim who must prove the three elements of civil liability: the existence of fault and damage, and the causal link between the two.
However, the Civil Code of Québec provides for some exceptions for which the burden of proof is reversed. In these situations, the person from whom the victim claims damages is presumed liable and must provide evidence to rebut this presumption. This is the case with liability for the act of others and for the fact of property.
In the text below, Me Lambert explains how the presumption of liability for fault caused by property works.
Responsibility for the fact of a property
According to article 1465 of the Civil Code of Québec, the custodian of a property may be held liable for the autonomous fact of the property:
The custodian of a property is obliged to make reparation for the damage caused by the autonomous act of the property, unless he proves that he has committed no fault.
Please note that special attention should be paid to three words used in this article: “custodian”, “autonomous” and “good”.
Custodian or owner?
First, please note that the Code uses the word “custodian” and not “owner” because the person who will be presumed responsible for the fault caused by the property does not necessarily own it. Indeed, it is the Court that will determine the identity of the custodian of the property by analysing who, at the time when the damage took place, had the power of control, supervision and direction of the property.
An autonomous fact
Next, the fact that caused the damage must be “autonomous”, that is to say, it must not have had any direct intervention on the part of the custodian or a third party.
In addition, the property must have its own activity. It cannot have remained purely passive during the event causing the damage; there must be an element of dynamism.
This is why, for example, a fall on a slippery sidewalk is not framed in the cases of article 1465 and there is no presumption of fault: the sidewalk does not move, it remains passive.
The type of property
The definition of “property” is broad. It includes movable, immovable, tangible (tangible property is material property, which can be touched) and intangible property.
A presumption of fault
Please note that this is a presumption of fault, not liability, which means that the custodian of the property can release himself from liability by demonstrating that he has not committed a fault.
Therefore, if the custodian can demonstrate that he has taken all reasonable precautions to avoid foreseeable dangers, or if he proves that the damage results from force majeure, due to a third party or the victim himself, he will not be held responsible for the damage caused.
Take the case, for example, of a diseased tree, which carries several mushrooms, and falls on the neighbor’s garage and causes harm. The guardian of the tree, in this case the owner of the land on which the diseased tree was located, is responsible for the damage caused.
However, in a Court of Québec case, the custodian of the tree was not found responsible for the harm caused. His tree fell, after strong winds, on his neighbor’s garage. But the difference in this case is that he had asked the City for permission to cut down the tree, but was refused by the City because the tree was healthy. The Court found that the custodian had not committed any fault and that he could not prevent or prevent the fact that caused the damage.
Special cases
The Civil Code of Québec provides for certain specific cases for damage resulting from an animal or the ruin of an immovable.
Liability resulting from the fact of an animal
The owner and/or custodian of the animal are responsible for the damage caused by the latter, even if they have taken all necessary precautions to prevent it. So, in this case, it is a presumption of responsibility, not fault.
The owner and the guardian can only release themselves from liability if they prove that the damage was caused by force majeure, the fault of the victim or the fault of a third party.
Liability resulting from the ruin of a building
The owner of a building is presumed liable for damage caused by the ruin of the building, either due to a construction defect or because of a lack of maintenance.
The onus is on the victim to prove negligence on the part of the owner, to demonstrate the harm suffered, and to establish the causal link.
On the other hand, the owner of the building may, in order to release his responsibility, provide evidence to show that he took the necessary precautions and that the accident was not the result of a fault on his part (for example, that the accident was caused by force majeure).
Prosecuting a person presumed liable for the fault of a property
If you have suffered damage caused by the autonomous fact of property, you may be entitled to claim damages from those who are presumed to be responsible for it. The burden of proof will be reversed, but you will still have several elements to prove. We advise you not to delay in acting and to bring all possible evidence.
Remember that our articles contain general explanations of the law and the situations mentioned are by way of example. The particular circumstances of your case can greatly vary your chances of success and a lawyer will help you maximize them. Contact our office now so that we can do an analysis of your file.
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