Civil Liability and State Compensation Schemes

Overview

Alongside the general civil liability regime established by the Civil Code of Quebec (Code civil du Quebec, CCQ) under art. 1457 and following, Quebec has enacted several state compensation schemes (regimes etatiques d'indemnisation). These schemes compensate victims of certain types of accident or event without regard to the fault of any person. They cover injury resulting from workplace accidents, automobile accidents, criminal offences, acts of civic-mindedness, vaccination, and hunting or trapping accidents. The compensation available for an identical or similar injury varies from one scheme to another. These schemes do not always foreclose a civil liability recourse under the general law, but they substantially restrict access to it through mechanisms of immunity, election, and subrogation.

Learning Objectives

Identify the principal state compensation schemes in force in Quebec and distinguish their no-fault basis from the fault-based general regime under art. 1457 CCQ.
Explain the operation of civil immunity in the context of workplace accidents and its scope with respect to the employer, a co-worker (co-travailleur), and an agent of the employer.
Analyse the scope of the Automobile Insurance Act (Loi sur l'assurance automobile, L.a.a.) and the prohibition on civil recourses for bodily injury caused by an automobile.
Determine the conditions of eligibility for financial assistance under the Act to help persons who are victims of criminal offences and to promote their recovery (Loi visant a aider les personnes victimes d'infractions criminelles et a favoriser leur retablissement, L.a.p.v.i.c.f.r.).
Distinguish the supplementary regimes (acts of civic-mindedness, vaccination, hunting and trapping) and their interaction with the principal schemes.
Apply the rules governing election, subrogation, and cumulation that regulate the interaction between state compensation schemes and the general law.

Key Concepts and Definitions

State compensation scheme (regime etatique d'indemnisation): a legislative system that compensates victims of certain events without requiring proof of fault, in exchange for a limitation or exclusion of the general civil liability recourse.
No-fault compensation (indemnisation sans egard a la faute): the principle that the victim is compensated regardless of any person's responsibility for the injury.
Civil immunity (immunite de poursuite civile): a legislative protection that prevents the victim from bringing a civil liability action under the general law against certain persons designated by the scheme.
Occupational injury (lesion professionnelle): an injury or disease arising out of or in the course of a work accident or constituting an occupational disease, including recurrence, relapse, or aggravation (art. 2 L.a.t.m.p.).
Work accident (accident du travail): an unforeseen and sudden event attributable to any cause occurring to a person by reason of or in the course of that person's work and resulting in an occupational injury (art. 2 L.a.t.m.p.).
Bodily injury (prejudice corporel): harm to a person's physical or psychological integrity.
Subrogation (subrogation): the transfer by operation of law of the victim's rights to the state body that compensated the victim, up to the amount of the benefits paid.
Election (option): the choice the law requires the victim to make between the state scheme and the civil liability recourse, in cases where both are available.
CNESST (Commission des normes, de l'equite, de la sante et de la securite du travail): the body that administers the workplace accident compensation scheme in Quebec.
SAAQ (Societe de l'assurance automobile du Quebec): the body that administers the public automobile accident compensation scheme in Quebec.

The Workplace Accident Regime

The workplace accident and occupational disease compensation regime is the oldest and most structured of Quebec's state schemes. The Act respecting industrial accidents and occupational diseases (Loi sur les accidents du travail et les maladies professionnelles, L.a.t.m.p.) establishes a comprehensive, mandatory, no-fault compensation regime that is a matter of public order. A worker whose injury is likely to constitute an occupational injury (lesion professionnelle) cannot choose between this regime and the general law: resort to the legislative scheme is compulsory.

Scope and Definitions

Worker. Article 2 L.a.t.m.p. defines a worker (travailleur) as a natural person who performs work for an employer for remuneration under a contract of employment or apprenticeship. Several categories of persons are excluded from the definition, including domestic servants, professional athletes, and directors of legal persons.

Work accident. The Act defines a work accident (accident du travail) as an unforeseen and sudden event attributable to any cause occurring to a person by reason of or in the course of that person's work and resulting in an occupational injury (art. 2 L.a.t.m.p.). The case law accepts that a series of events, each trivial in isolation, may constitute the unforeseen and sudden event when their cumulative effect becomes significant.

Occupational injury. The definition includes any injury or disease arising out of or in the course of a work accident, including recurrence, relapse, or aggravation (art. 2 L.a.t.m.p.). An injury occurring at the workplace while the worker is engaged in work benefits from a presumption that it constitutes an occupational injury. Depression, psychological injuries, psychological harassment, and sexual harassment in the workplace have been recognised as occupational injuries. An injury resulting from the worker's own gross and wilful negligence is not an occupational injury unless it causes death or a serious permanent impairment of physical or psychological integrity (art. 27 L.a.t.m.p.).

Territorial scope. The Act applies to a worker who sustains a work accident in Quebec or contracts an occupational disease in Quebec, provided the employer has an establishment in Quebec (art. 7 L.a.t.m.p.). For accidents occurring outside Quebec, the Act applies if the worker is domiciled in Quebec and the employer has an establishment in Quebec (art. 8 L.a.t.m.p.). If the worker is not domiciled in Quebec at the time of the accident, coverage remains available if the worker was domiciled in Quebec at the time of the assignment outside Quebec, provided the work outside Quebec has not exceeded five years (art. 8, para. 2 L.a.t.m.p.).

Civil Immunity

The L.a.t.m.p. confers on the employer, on co-workers (co-travailleurs), and on agents of the employer a broadly framed civil immunity (art. 438, 439, 442 L.a.t.m.p.). This immunity extends to recourses under the general law and to those brought under the Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne). It covers all heads of damage arising from an occupational injury, including moral and punitive damages.

The employer. Article 438 L.a.t.m.p. prohibits a worker who has suffered an occupational injury from bringing a civil liability action against the employer. Where the worker dies, the person entitled to a benefit cannot sue the employer either (art. 439 L.a.t.m.p.). A worker who has failed to file a compensation claim, or whose claim has been rejected, cannot subsequently rely on the general rules of the Civil Code. The immunity does not apply, however, to recourses founded on an injury unconnected with the occupational injury.

Co-workers and agents. Article 442 L.a.t.m.p. prohibits a civil liability action against a co-worker or an agent of the employer for a fault committed in the exercise of functions (dans l'exercice de ses fonctions). This immunity does not extend to a fault committed on the occasion of functions rather than in their exercise. A health professional responsible for an occupational injury within the meaning of art. 31 L.a.t.m.p. does not benefit from this immunity.

Injury to reputation. Civil immunity does not cover actions aimed exclusively at reparation for injury to reputation, as that concept falls outside the definition of occupational injury. The courts distinguish between compensation for psychological harm resulting from an injury to reputation (which may constitute an occupational injury) and a claim founded exclusively on the injury to reputation (which falls under the general law).

Available Recourses

Against another employer subject to the Act. Article 441 L.a.t.m.p. exceptionally opens a civil recourse against an employer subject to the Act other than the injured worker's own employer. This recourse is available in four situations: (a) the other employer committed a fault constituting an offence or a criminal act under the Criminal Code; (b) the worker seeks to recover the excess of the loss sustained over the benefit received; (c) the other employer is responsible for an occupational injury under art. 31 L.a.t.m.p.; (d) the other employer is personally liable for benefit payments. An action based on a fault constituting a criminal offence must be brought within six months of the guilty plea or final conviction (art. 441, para. 2 L.a.t.m.p.).

Against a third party. An injured worker may bring a civil liability action against any person who is not the worker's employer, another employer subject to the Act, a co-worker, or an agent of the employer. Such persons include a client of the employer, the manufacturer of a defective tool, or any other person whose fault contributed to the injury.

The obligation to elect. A person entitled to a benefit under the L.a.t.m.p. who may also bring a civil liability action must elect and notify the CNESST within six months of the work accident or of the date the occupational disease is medically established and brought to the worker's knowledge (art. 443, para. 1 L.a.t.m.p.). Failure to elect is treated as a renunciation of statutory benefits (art. 443, para. 3 L.a.t.m.p.).

Subrogation. A claim to the CNESST subrogate the CNESST by operation of law in the person's rights against the party responsible for the occupational injury, up to the amount of benefits paid and the capitalised value of future benefits (art. 446 L.a.t.m.p.).

Supplementary compensation. If a civil action yields a sum lower than the statutory benefit, the victim is entitled to a benefit for the difference (art. 444 L.a.t.m.p.). If the victim elects to claim statutory benefits, the right to recover from the responsible party the excess of the actual loss over the benefit is preserved (art. 445 L.a.t.m.p.).

The Automobile Insurance Regime

In 1978, Quebec adopted the Automobile Insurance Act (Loi sur l'assurance automobile, L.a.a.), creating a public, no-fault compensation scheme for automobile accident victims administered by the Societe de l'assurance automobile du Quebec (SAAQ). The Act prohibits all civil liability recourses before the courts of general jurisdiction in respect of death or bodily injury caused by an automobile, its use, or its load (art. 83.57 L.a.a.). Following the reasoning in Beliveau St-Jacques c. Federation des employees et employes de services publics inc., the prohibition extends to recourses under the general law and to those brought under the Quebec Charter, including exemplary damages.

Scope and Parameters

Persons covered. Every person who suffers bodily injury caused by an automobile is entitled to compensation (art. 5 L.a.a.). A Quebec resident and dependants are covered regardless of where the accident occurs (art. 7 L.a.a.). The owner, driver, or passenger of an automobile registered in Quebec is deemed to reside in Quebec when the accident occurs in Quebec (art. 8 L.a.a.). A victim not resident in Quebec is entitled to compensation only in proportion to that person's absence of responsibility for the accident, unless an agreement exists between the SAAQ and the jurisdiction of the victim's place of residence (art. 9 L.a.a.).

The concept of automobile and use. The Act receives a broad and liberal interpretation. The simple use of a motor vehicle as a vehicle suffices for the Act to apply. Loading, unloading, getting in and out of a vehicle, and clearing snow from a stationary vehicle fall within the concept of use. It is not necessary for the vehicle to have been an active cause of the accident. A fall occurring before a person begins to board or after a person has finished alighting, however, is not an automobile accident within the meaning of the Act.

Exclusions. The Act does not cover persons whose injury is caused by an apparatus capable of independent operation incorporated into an automobile when the automobile is stationary off a public highway; by a farm tractor, farm trailer, or equipment vehicle outside a public highway; or by a snowmobile or vehicle designed for off-highway use. Accidents occurring during a competition, race, demonstration, or exhibition on a closed course are excluded. Injuries caused by a motorised bicycle, a motorised mobility aid, or a motorised personal transport device are also excluded. In these cases, victims are compensated under the general law.

Causation. The Act employs a sui generis standard of causation. The traditional causal link of the general civil liability regime need not be established. The link must be plausible, logical, and sufficiently close between the automobile accident and the resulting injury. Aggravation of bodily injury by a subsequent fault of a third party does not constitute a novus actus interveniens for the purposes of the Act.

Prescription. The right to an indemnity prescribes by three years from the accident or from the manifestation of the injury; in the case of a death benefit, from the date of death (art. 11 L.a.a.). The SAAQ may permit a late application for serious and legitimate reasons.

Recourses in Automobile Accident Cases

The general prohibition. The indemnities provided by the L.a.a. stand in lieu of all rights and recourses on account of bodily injury (art. 83.57 L.a.a.). Acceptance of SAAQ indemnities constitutes a transaction and extinguishes the victim's right to bring any judicial action.

Priority of the workplace accident regime. Where an automobile accident gives rise both to an indemnity under the L.a.a. and to a benefit under the L.a.t.m.p., the person must claim the benefit payable under the L.a.t.m.p. (art. 83.63 L.a.a.). The workplace accident regime takes precedence.

Election between civic-acts and criminal-victim regimes. Where a victim is entitled both to an indemnity under the L.a.a. and to a benefit under the Act to promote civic-mindedness (Loi visant a favoriser le civisme) or the Act to help victims of criminal offences (L.a.p.v.i.c.f.r.), the victim may elect between the two regimes (art. 83.64 L.a.a.). Compensation under the criminal-victims regime extinguishes any entitlement under the L.a.a.

Accidents outside Quebec. A person compensated by the SAAQ for an accident occurring outside Quebec may receive the SAAQ indemnity while preserving a recourse for the excess under the law of the place of the accident (art. 83.59 L.a.a.). The SAAQ is subrogated in the rights of the victim and may recover indemnities paid from any non-resident responsible for the accident (art. 83.60, 83.61 L.a.a.).

Compensation for Victims of Criminal Offences

Under the general law, a victim of a criminal offence (infraction criminelle) and that victim's close relatives may bring a civil liability action against the offender. This recourse often proves impractical because the offender may be insolvent, unidentified, or untraceable. The Act to help persons who are victims of criminal offences and to promote their recovery (L.a.p.v.i.c.f.r.), adopted in 2021 to replace the former Crime Victims Compensation Act, establishes a financial assistance regime.

Scope of Application and Qualification

Eligible persons. Article 15 of the Act enumerates the persons entitled to financial assistance: the person who suffers an impairment to integrity by reason of a criminal offence perpetrated against that person; a parent of a child who has died or suffered an impairment; a child of a parent who has died or suffered an impairment; a spouse; a dependant; a close relative; and a witness of the perpetration of the offence or of the intact scene.

Civic interveners. Article 16 L.a.p.v.i.c.f.r. extends eligibility to civic interveners (intervenants) who suffer an impairment to integrity while attempting to arrest an offender, assisting a peace officer, or preventing the perpetration of a criminal offence.

Territorial requirement. The impairment to integrity or the death must have occurred in Quebec (art. 17 L.a.p.v.i.c.f.r.).

Exclusions. A person who was party to the criminal offence or who contributed to the impairment through gross fault (faute lourde) is not entitled to financial assistance (art. 21, para. 1 L.a.p.v.i.c.f.r.). This exclusion does not apply to victims of conjugal violence, sexual violence, or threats of violence, to children under 12, to incapable children, or to incapable dependants.

Qualification procedure. The victim must file a qualification application with the Minister of Justice within three years of becoming aware of the injury (art. 25, para. 1 L.a.p.v.i.c.f.r.). For offences involving violence suffered during childhood, sexual violence, or conjugal violence, the application may be filed at any time (art. 25, para. 3 L.a.p.v.i.c.f.r.). Financial assistance may be granted whether or not the offender has been identified, arrested, prosecuted, or convicted (art. 20 L.a.p.v.i.c.f.r.).

Financial Assistance and Civil Recourses

Non-cumulation. The victim may not cumulate financial assistance under the Act and a judicially awarded sum for the same objects and the same injuries. Any sum awarded and collected must be deducted from the assistance paid or reimbursed to the Minister (art. 33, para. 1 L.a.p.v.i.c.f.r.).

Supplementary compensation. If the sum collected through judicial proceedings is less than the financial assistance available under the Act, the victim may obtain the difference by filing a request with the Minister within one year of the judgment (art. 33, para. 3 L.a.p.v.i.c.f.r.). For offences involving childhood violence, sexual violence, or conjugal violence, this request may be filed at any time.

Recovery of the excess. A victim who has filed a qualification application retains the right to recover from any responsible person the amounts needed so that the financial assistance received, combined with the recovery, corresponds to the loss actually sustained (art. 28 L.a.p.v.i.c.f.r.).

Subrogation. Upon the filing of a qualification application, the Minister is subrogated by operation of law in the victim's rights, up to the amount the Minister may be called upon to pay. In cases of conjugal or sexual violence, the Minister must obtain the victim's consent before exercising the subrogatory recourse (art. 32, para. 5 L.a.p.v.i.c.f.r.).

Interruption of prescription. The qualification application interrupts the prescription established by the Civil Code until the Minister or the Administrative Tribunal of Quebec renders a decision.

Other State Compensation Regimes

Acts of Civic-Mindedness

The Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne) imposes on every person the duty to come to the aid of anyone whose life is in peril (art. 2 of the Charter). The Act to promote civic-mindedness (Loi visant a favoriser le civisme, L.f.c.) provides that a rescuer (sauveteur) who suffers an impairment to integrity is entitled to the same financial assistance as a civic intervener under art. 16 L.a.p.v.i.c.f.r. The dependants, spouse, and close relatives of a deceased rescuer are entitled to the same lump sum as the corresponding relatives of a deceased civic intervener (art. 2 L.f.c.).

Financial assistance under the L.f.c. is subsidiary: it is not available if the circumstances give rise to the application of the L.a.t.m.p., the L.a.p.v.i.c.f.r., or a federal statute (art. 21 L.f.c.). If the benefits under a federal statute are lower, the rescuer may claim the difference under the L.f.c. Where a rescuer is entitled both to an indemnity under the L.a.a. and to financial assistance under the L.f.c., the rescuer may elect between the two; compensation under the L.a.a. extinguishes entitlement under the L.f.c. (art. 21.1 L.f.c.).

Vaccination

Following the Supreme Court of Canada's decision in Lapierre c. Procureur general du Quebec, the Quebec legislature established a compensation mechanism for victims of bodily injury caused by vaccination. The Public Health Act (Loi sur la sante publique, L.s.p.) provides that the Minister of Health and Social Services compensates, without regard to the fault of any person, every victim of bodily injury caused by a voluntary vaccination against a disease specified in the regulations or by a vaccination imposed under art. 123 of the Act (art. 71 L.s.p.). The vaccination must have taken place in Quebec, and a causal link between the vaccination and the injury must be established.

Compensation is calculated according to the rules of the L.a.a. and its regulations, with necessary adaptations (art. 72 L.s.p.). The right to compensation prescribes by three years from the vaccination or from the death; if the injury manifests gradually, the prescriptive period begins to run from its first manifestation (art. 73 L.s.p.). The victim may bring a civil action against any person responsible for the injury (art. 74 L.s.p.), and the Minister is subrogated by operation of law in the victim's rights (art. 75 L.s.p.). This regime does not preclude recourse to the L.a.t.m.p. if the victim is a worker.

Hunting and Trapping

The Act respecting the conservation and development of wildlife (Loi sur la conservation et la mise en valeur de la faune) establishes a no-fault compensation regime for holders of hunting or trapping permits who practise these activities for recreational purposes in Quebec. Article 79 of the Act grants injured permit holders, or their successors in the event of death, an indemnity the amount of which is determined by regulation and may not exceed $5,000 per accident.

The Minister is required to pay damages for which a person who hunts or traps is liable to third parties, up to $10,000 plus interest and costs (art. 81). This contribution is subsidiary to any obligation of an insurer under a liability insurance policy. The Minister is subrogated by operation of law in the rights of the compensated person against the responsible third party, up to the amount of the indemnity (art. 80).

Practice Checklist

Determine the applicable regime

Characterise the facts: workplace accident, automobile accident, criminal offence, act of civic-mindedness, vaccination, or hunting accident?
Verify whether the victim is a worker within the meaning of art. 2 L.a.t.m.p.
Verify whether an automobile is implicated in the occurrence of the bodily injury.
If several regimes may apply, determine the priority and election rules (art. 83.63, 83.64 L.a.a.; art. 21 L.f.c.; art. 29 L.a.p.v.i.c.f.r.).

Assess civil immunity

In the workplace accident context, identify whether the defendant is the employer, a co-worker, an agent of the employer, or a third party.
Verify whether the alleged facts constitute an occupational injury within the meaning of the L.a.t.m.p.
Determine whether the immunity under art. 442 L.a.t.m.p. applies (fault committed in the exercise of functions).
Verify whether injury to reputation constitutes a head of damage distinct from the occupational injury.

Exercise the residual civil recourse

Verify whether a recourse against another employer subject to the Act is available under art. 441 L.a.t.m.p.
Comply with the election deadlines (six months under art. 443 L.a.t.m.p.; three years under art. 11 L.a.a.; three years under art. 25 L.a.p.v.i.c.f.r.).
Notify the competent body (CNESST, SAAQ, Minister of Justice) of the exercise of the civil recourse and the election made.
Assess whether the sum likely to be obtained through judicial proceedings exceeds the statutory benefits; if so, exercise the civil recourse for the excess.

Manage subrogation

Verify whether the statutory claim has operated subrogation in favour of the competent body.
Avoid any agreement that deprives the body of its subrogatory recourse without its ratification.

Glossary

Civil immunity (immunite de poursuite civile): legislative protection preventing the victim from bringing a civil liability action under the general law against certain persons designated by the scheme.
CNESST (Commission des normes, de l'equite, de la sante et de la securite du travail): the body that administers the workplace accident compensation scheme in Quebec.
Election (option): the choice required by law between the state scheme and the civil recourse, where both are available.
No-fault regime (regime sans egard a la faute): a compensation scheme that pays benefits regardless of any person's responsibility.
Occupational disease (maladie professionnelle): a disease contracted by reason of or in the course of work and characteristic of that work or directly related to its particular risks (art. 2 L.a.t.m.p.).
Occupational injury (lesion professionnelle): an injury or disease arising out of or in the course of a work accident, including recurrence, relapse, or aggravation (art. 2 L.a.t.m.p.).
Rescuer (sauveteur): a person who comes to the aid of another and who may benefit from the Act to promote civic-mindedness.
SAAQ (Societe de l'assurance automobile du Quebec): the body that administers the public automobile accident compensation scheme in Quebec.
State compensation scheme (regime etatique d'indemnisation): a legislative system that compensates victims of certain events without requiring proof of fault, in exchange for a limitation or exclusion of the general civil liability recourse.
Subrogation (subrogation): the transfer by operation of law of the victim's rights to the state body that compensated the victim, up to the amount of the benefits paid.
Work accident (accident du travail): an unforeseen and sudden event attributable to any cause occurring to a person by reason of or in the course of that person's work and resulting in an occupational injury (art. 2 L.a.t.m.p.).
Worker (travailleur): a natural person who performs work for an employer for remuneration under a contract of employment or apprenticeship (art. 2 L.a.t.m.p.).

References and Further Reading

Civil Code of Quebec (Code civil du Quebec, CCQ): art. 1457 and following, 1607, 1611, 2924.
Act respecting industrial accidents and occupational diseases (Loi sur les accidents du travail et les maladies professionnelles, L.a.t.m.p.): art. 2, 7, 8, 9, 27, 31, 349, 438, 439, 441, 442, 443, 444, 445, 446, 447.
Automobile Insurance Act (Loi sur l'assurance automobile, L.a.a.): art. 5, 7, 8, 9, 11, 83.57, 83.59, 83.60, 83.61, 83.63, 83.64, 108 to 114.
Act to help persons who are victims of criminal offences and to promote their recovery (Loi visant a aider les personnes victimes d'infractions criminelles et a favoriser leur retablissement, L.a.p.v.i.c.f.r.): art. 2, 15, 16, 17, 20, 21, 23, 24, 25, 27, 28, 29, 31, 32, 33.
Act to promote civic-mindedness (Loi visant a favoriser le civisme, L.f.c.): art. 2, 18, 21, 21.1, 22, 27.4.
Public Health Act (Loi sur la sante publique, L.s.p.): art. 71, 72, 73, 74, 75, 76, 77, 123, 137.
Act respecting the conservation and development of wildlife (Loi sur la conservation et la mise en valeur de la faune): art. 79, 80, 81, 82.
Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne): art. 2.
Case law: Beliveau St-Jacques c. Federation des employees et employes de services publics inc.; Lapierre c. Procureur general du Quebec.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.

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