General Commentary on Professional Liability

Overview

The Professional Code (Code des professions) governs more than fifty professions in Quebec. The law of professional liability (responsabilite professionnelle) has grown significantly over recent decades. For much of the twentieth century, professionals benefited from a status approximating judicial quasi-immunity, and a finding of liability required proof of gross negligence. That regime has given way to the general civil liability framework of the Civil Code of Quebec (CCQ). This chapter sets out the governing principles: the obligation of means (obligation de moyens), the distinction between fault and error, the role of codes of ethics (codes de deontologie), and the effect of the Supreme Court of Canada's decision in Roberge c. Bolduc on the assessment of the professional standard of care (norme de diligence).

Learning Objectives

Trace the historical evolution of judicial treatment of professional liability in Quebec, from quasi-immunity to the application of the general civil liability regime.
Explain the distinction between the obligation of means and the obligation of result in the professional context.
Distinguish professional error from professional fault and understand the practical difficulties of applying this distinction.
Assess the role of codes of ethics in establishing civil fault, in light of the Supreme Court of Canada's decision in Morin c. Blais.
Analyse the scope of Roberge c. Bolduc and its effect on the relationship between established professional practice and the standard of reasonable diligence.
Identify the role of expert evidence (preuve d'expert) in the assessment of professional fault and the limits of the court's power in the face of expert testimony.

Key Concepts and Definitions

Professional liability (responsabilite professionnelle): the obligation of a member of a professional order to make reparation for injury caused by the member's fault in the exercise of the profession, whether on a contractual (art. 1458 CCQ) or extra-contractual (art. 1457 CCQ) basis.
Obligation of means (obligation de moyens): an obligation under which the debtor undertakes to act with prudence and diligence, without guaranteeing a specific result (art. 1457 CCQ).
Obligation of result (obligation de resultat): an obligation under which the debtor undertakes to achieve a specific result; liability is engaged by the mere failure to achieve it.
Professional fault (faute professionnelle): conduct by a professional that departs from the standard of a reasonably prudent and diligent professional placed in the same circumstances.
Professional error (erreur professionnelle): conduct that, though imperfect, remains within the range of what a reasonable professional would do; error does not engage civil liability.
Code of ethics (code de deontologie): a regulation adopted under the Professional Code that establishes the duties and obligations of members of a professional order.
Standard of care (norme de diligence): the objective criterion by which the court evaluates the professional's conduct, measured against the behaviour of a reasonably prudent practitioner in the same circumstances.
Expert evidence (preuve d'expert): testimony of a specialist in the relevant field, intended to inform the court of the recognized practices and the state of knowledge in the profession.

Historical Evolution of Professional Liability

From Quasi-Immunity to Accountability

For a long period, professionals in Quebec enjoyed a status that amounted to quasi-immunity (quasi-immunite) from civil proceedings. Liability could be imposed only where the victim demonstrated gross negligence on the part of the physician, advocate, or notary. The evidentiary threshold was so high that proceedings were rare. On the sociological level, this deference was visible in procedural practice: physicians, for instance, were often not named in pleadings, their identity replaced by a letter designation.

This differential treatment has progressively disappeared. Professionals are now subject to the same civil liability regime as every other person and remain accountable for their faulty conduct under arts. 1457 and 1458 CCQ. The transformation has been accompanied by a marked increase in claims for reparation of injury.

Example. A patient suffers complications following a surgical procedure. Fifty years ago, an action in liability against the surgeon would have required proof of gross negligence. Today, the patient must demonstrate that the surgeon did not act in accordance with the standard of a reasonably prudent and diligent surgeon, without any heightened threshold of fault.

Factors Behind the Rise in Claims

Several factors account for the multiplication of professional liability claims.

Shift in the attitude of victims. Individuals are less willing to accept injury without recourse. The notion that damage is attributable to fate has lost its influence.
Development of consumer protection law. The client or patient has become, in practice, an informed consumer aware of available legal rights and prepared to assert them before the courts.
Increase in economic and social relationships. The growing number of transactions and professional relationships expands the range of situations that may give rise to a claim.
Growing complexity of the law. For advocates and notaries, the multiplication of legislative and regulatory rules increases the risk of default.
Development of professional liability insurance. The existence of insurance coverage makes proceedings against professionals more viable in practice.
Size of awards. The granting of significant sums by courts, in Quebec and elsewhere, has reinforced the interest of victims and their counsel in pursuing claims.

The Standard of Professional Conduct

The Obligation of Means

Professionals are, as a general rule, held to an obligation of means (obligation de moyens). A physician does not guarantee the cure of a patient; an advocate does not guarantee the success of a client's case. The professional must instead conduct himself or herself as a reasonably prudent and diligent professional, having regard to the degree of specialization. A cardiologist is assessed according to the conduct of other cardiologists in comparable circumstances; a tax lawyer is measured against practitioners in the same specialty.

The evaluative criterion is objective. The court determines what a reasonable, competent, and diligent professional would have done in the same circumstances. This is the standard of the professional assessed "in abstracto," that is, by reference to an ideal model rather than the personal characteristics of the defendant.

In certain situations, the professional may be held to provide a specific result. The obligation of result (obligation de resultat) shifts the burden of proof: the mere failure to achieve the promised result suffices to engage liability, unless the professional demonstrates an exonerating cause (superior force, fault of the victim). Cases in which professional obligations take the form of obligations of result are, however, circumscribed and receive specific treatment in the chapters devoted to individual professions.

Example. An advocate fails to file a procedural act within the prescribed time limit, resulting in the dismissal of the client's action. The question is whether a reasonably prudent and diligent advocate, placed in the same circumstances, would have met the deadline. Compliance with procedural time limits approaches an obligation of result.

The Distinction Between Error and Fault

Doctrine and the case law have sought to draw a distinction between professional error (erreur professionnelle) and professional fault (faute professionnelle).

Error corresponds to the conduct of a reasonable and prudent person who, despite exercising diligence, commits an inaccuracy or reaches an imperfect decision. Error does not form the basis of the compensation system and does not engage civil liability.
Fault is defined as conduct departing from the norm that a reasonably prudent and diligent professional would not have adopted. Fault engages the liability of the person who committed it.

The distinction remains difficult to apply. The case law holds that the concept of error, as an autonomous legal category, should be abandoned because it is a source of confusion. In practice, the analysis reduces to a comparison of the professional's conduct with the standard of the reasonable professional. If the conduct falls within the range of what a competent professional would do, liability does not arise, regardless of the terminology used.

Example. A notary interprets an ambiguous clause in a contract of sale in a manner that proves unfavourable to the client. If this interpretation fell within the range of interpretations that a diligent notary could reasonably have adopted, it constitutes a non-faulty error. If, on the other hand, the interpretation contradicts well-established case law that any competent notary should have known, the conduct constitutes a fault.

Deontological Codes and Civil Fault

Professionals are bound to comply with the duties established by their codes of ethics (codes de deontologie) adopted under the Professional Code. The courts take judicial notice of these regulatory texts. Deontological obligations, which express the expectations of the professional community regarding its members, may facilitate proof of a civil fault (faute civile).

The link between the violation of a deontological norm and civil fault rests on the principle set out by the Supreme Court of Canada in Morin c. Blais: the violation of a legislative or regulatory rule enunciating an elementary standard of prudence that a reasonable person must respect constitutes a civil fault. Doctrine observes, however, that the case law, while frequently referring to deontological obligations, rarely draws genuine conclusions from them in relation to civil liability. The application of the Morin c. Blais principle in professional liability could be more systematic.

Three clarifications are necessary:

A violation of a deontological obligation does not automatically engage civil liability. The plaintiff must always demonstrate the causal link between the breach and the injury suffered.
Full compliance with the code of ethics does not constitute an absolute defence. A professional may comply with all deontological obligations and still commit a civil fault if the professional's conduct departs from the standard of reasonable conduct in the circumstances.
The assessment of the scope of deontological obligations is a matter for the court, which examines them in light of the factual context and the general principles of civil liability.

Example. The code of ethics of a professional order imposes a duty to advise. A professional who fails to alert a client to a known and foreseeable risk breaches the deontological duty. This breach, combined with proof of injury and causation, constitutes evidence of civil fault within the meaning of arts. 1457 and 1458 CCQ.

Established Practice and the Standard of Care

The Roberge c. Bolduc Principle

The Supreme Court of Canada's decision in Roberge c. Bolduc marked a turning point in the assessment of the professional standard of care. In this case concerning notarial liability, the Court held that the general and established practice of a professional milieu does not necessarily confer upon it an assurance of reasonableness. Justice L'Heureux-Dube stated:

"[The] fact that a professional followed the practice of his peers may constitute strong evidence of reasonable and diligent conduct, but it is not determinative." (TR)

The principle means that the sum of the individual practices of each practitioner is not automatically synonymous with reasonable practice. The court's assessment of the professional's conduct retains an objective dimension ("in abstracto") that escapes the self-regulation of the profession.

The Supreme Court did not modify the traditional criterion of the obligation of means. The professional remains bound to act with prudence and diligence. The significance of Roberge c. Bolduc lies in the refusal to accord absolute value to conformity with current practice. A professional may be held liable even after following the customary practice of peers, if that practice is itself unreasonable.

The Quebec Court of Appeal (Cour d'appel) subsequently circumscribed the reach of this principle in a series of decisions. Courts must not arrogate to themselves the right to intrude into areas of expertise in which they are laypersons. Judges must exercise restraint, while remaining alert to the possibility that corporate solidarity among professionals may exist and distort the analysis of certain experts. On questions of technique and professional rules of art, the court must defer to expertise. The court retains its prerogatives, however, with respect to conduct that falls within the realm of elementary prudence.

Example. A notary follows the customary practice of the profession by omitting to consult a register. If the omission is contrary to what a reasonably prudent notary should do according to the objective standards of the law, the court may find fault regardless of the fact that a majority of notaries proceed in the same manner.

The Role of Expert Evidence

Expert evidence (preuve d'expert) occupies a central place in professional liability litigation. The expert is a specialist whose role is to inform the court of the state of knowledge in the profession: the recognized practices and the acquired data of science or art. The expert provides the factual foundation upon which the court assesses whether the professional's conduct falls within the accepted norms.

As Professors Bernardot and Kouri have observed, the expert's task is to inform the judge at the level of fact; the judge's task begins where the expert's ends. The court cannot disregard the information provided by expert testimony, but it is not bound by the expert's conclusions. The judge retains the power to assess questions of law and to evaluate conduct falling within the sphere of elementary prudence.

The Court of Appeal has specified that in certain fields, such as medicine, the law has assimilated the scientific standard, so that fault is assessed according to practices recognized by the experts themselves. The judge cannot substitute personal knowledge in these technical domains.

In the legal field, the need for expert evidence is less systematic. Courts do not always see the utility of expert testimony when the matter involves opinions on questions of law or fact. Recent decisions have, however, noted the absence of expert evidence informing the court about established practice, particularly where the defendant practised in a specialized area of law.

Example. In an action in liability against an orthopaedic surgeon, the plaintiff produces an orthopaedic expert who testifies that the technique employed by the defendant did not correspond to recognized practices. The court accords significant weight to this expert testimony on technical questions. The judge cannot substitute a personal medical opinion for that of the expert. The judge may, however, find fault if the surgeon's conduct departed from standards of elementary prudence, for instance by failing to verify the patient's identity before the intervention.

Practice Checklist

Characterize the nature of the professional's obligation: obligation of means or, exceptionally, obligation of result.
Identify the applicable standard: what would a reasonably prudent and diligent professional, of the same specialization, have done in the same circumstances?
Distinguish error from fault: does the impugned conduct fall within the range of acceptable conduct of a reasonable professional?
Identify the applicable deontological obligations and assess whether a breach constitutes evidence of civil fault under the Morin c. Blais principle.
Evaluate whether conformity with the established practice of the profession suffices to exclude fault, having regard to the Roberge c. Bolduc principle.
Assess the necessity of expert evidence, distinguishing technical domains (where expertise is required) from questions of elementary prudence (where the court may assess without an expert).
Establish the causal link between the imputed fault and the injury suffered by the victim.
Verify the existence of professional liability insurance coverage.

Glossary

Code of ethics (code de deontologie): a regulation adopted under the Professional Code establishing the duties of members of a professional order.
Expert evidence (preuve d'expert): testimony of a specialist informing the court of the state of knowledge and recognized practices in the relevant professional field.
Obligation of means (obligation de moyens): an obligation to act with prudence and diligence, without guaranteeing a specific result.
Obligation of result (obligation de resultat): an obligation to achieve a specified result, the non-achievement of which engages liability.
Professional error (erreur professionnelle): conduct falling within the range of reasonable professional behaviour that does not engage civil liability.
Professional fault (faute professionnelle): conduct departing from the standard of a reasonably prudent and diligent professional.
Professional liability (responsabilite professionnelle): the obligation of a professional to make reparation for injury caused by fault in the exercise of the profession (arts. 1457, 1458 CCQ).
Quasi-immunity (quasi-immunite): historical protection accorded to professionals, requiring proof of gross negligence to engage liability.
Standard of care (norme de diligence): the objective criterion against which the professional's conduct is assessed, based on the behaviour of a reasonably prudent practitioner under the same circumstances.

References and Further Reading

Civil Code of Quebec: arts. 1457, 1458, 1459, 1460, 1461, 1463, 1470, 1474, 1478, 2098, 2100.
Professional Code (CQLR, c. C-26).
Case law: Roberge c. Bolduc, [1991] 1 S.C.R. 374; Morin c. Blais, [1977] 1 S.C.R. 570.
Doctrine: Bernardot, Alain and Kouri, Robert P., works on medical liability; Baudouin, Jean-Louis, Deslauriers, Patrice, and Moore, Benoit, passages on professional liability.

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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