Featured Scholarship in Comparative Law
November 29, 2021
Marel Katsivela, Responsabilité délictuelle et responsabilité extracontractuelle au Canada. Une étude de droit comparé, Montréal, Éditions Themis, 2021.
The present book constitutes, to our knowledge, the first attempt of a detailed comparative analysis of various themes regarding tort liability (common law) and extra-contractual liability for personal acts (civil law-Québec) in Canada. The book is mainly written in French – only some of the cases in the book are reproduced in English. A comparative study of this kind has no real limits as to the subjects to be treated. Those chosen for this book are the tort of negligence and its elements (duty of care, standard of care, factual causation, causal proximity, injury), certain intentional torts and their defenses (common law) and the personal extra-contractual liability (the classic triptych of fault, causation and injury in article 1457 of the Civil Code of Quebec) and its defenses (Québec civil law). Each subject is studied in common law and in civil law on the basis of statutes and / or case law / precedent and doctrine and is accompanied by a comparative analysis.
In comparing the fragmented duty of care (Chapter 1) regarding the tort of negligence and its corresponding concept at civil law (general duty of care) the book analyses in more detail both concepts and their importance for each legal tradition in Canada.
Regarding the standard of care (chapter 2) the book describes the principles governing the (breach of the) standard of care (tort of negligence – common law) and the fault (extra-contractual liability – liability for personal acts – civil law – article 1457 CcQ). More specifically, the study focuses on the reasonable person and his conduct in the two legal traditions of Canada. The author tries to determine the degree of convergence of the applicable rules in this area. The research of civil law and common law sources of law unveils a remarkable convergence of these rules as well as differences.
Causation (chapter 3) is a common concern in common law and in civil law in the area of the tort of negligence (common law) and extra-contractual personal liability (civil law) in Canada. The book undertakes a comparative analysis of this concept and identifies the similarities, differences and level of convergence of the rules governing it. Even if there are approximations to be made regarding the applicable rules governing causation in common law and in civil law, differences do not lack. The convergence of applicable rules is only present in part in this area.
Likewise, the author seeks to identify similarities and differences that govern this concept of injury (Chapter 4) in the context of extracontractual liability resulting from one’s personal acts under Quebec civil law and the common law tort of negligence in Canada. While the applicable rules in this area only partially converge, the legal concerns remain by and large similar. This is quite a remarkable area of law from a comparative law perspective.
The book finally compares the defenses (Chapter 5, 6) of the extra-contractual liability for personal acts in Quebec civil law with those of the tort of negligence and intentional torts at common law in Canada in two separate chapters. In doing so, it seeks to identify the similarities and differences in the applicable rules in the two Canadian legal cultures. The comparative study reveals that the intentional torts/tort of negligence defenses at common law find an equivalent in extracontractual liability for personal acts in civil law and vice versa. In addition, these defenses / corresponding concepts often present conceptual similarities but also differences. This demonstrates the presence of similar concerns and a certain degree of convergence of the applicable rules of the two Canadian legal traditions.
The similarities and differences in treatment identified regarding the subjects examined in this book, demonstrate that the convergence of the applicable rules is present but that it remains relative and dependent on the particular issue being addressed. This relative convergence should not be seen as a weakness of the law applicable in tort and extracontractual liability in Canada. On the contrary, it constitutes a flagrant proof to what extent the two Canadian legal cultures with equal value at the national level can deal with the same questions sometimes in a similar way and sometimes differently while respecting the foundations and values that govern them.
As this book is the first work of its kind and the first book written by the author, its content will be improved and enriched over the years. It has been a considerable challenge and such an enriching experience to examine in more detail the mentioned areas of law and compare them. The author believes in the respect of both legal traditions and tries to reflect this in the book. It seems that the way forward for Canadian law needs to take into account both legal cultures in further converging applicable principles….or not!