Houle v. Banque Canadienne Nationale, supra at 165-167

Houle v. Banque Canadienne Nationale, supra at 165-167.

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  L’eureux-Dubé J in Houle: in summary, although contractual and delictual liability may coexist even in the context of a contract, delictual liability must arise independently of contractual obligations and all the elements required to give rise to such liability must be found.
  
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  The contract relationship, the obligations contained in the k and the failure to perform the k-ual obligations are all relevant circumstances in assessing delictual fault. It is necessary to determine whether the party whom it is sought to make liable behaved like a reasonable person toward the third parties, or in other words what the conduct of a reasonable contracting party would have been toward the 3Ps.
  
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  In the k-ual context, the general duty imposed by art. 1053 C.C.L.C (1457 C.c.Q) is expressed as a duty to act reasonably toward 3Ps. A general duty of good faith in k-ual relationships, which derives from art. 1024 C.C.L.C. (1375 C.c.Q), has been recognized by the courts and by the legal authors. This duty of good faith derives from the same source as the general duty of good conduct set out in 1475 C.c.Q., and it goes without saying that a party to a k must conduct itself just as reasonably and with the same good faith toward 3Ps as toward the other k parties.
  
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  The 3P is not seeking to appropriate to itself the benefit of an obligation which is not stipulated in its favor, but is seeking compensation for the damage caused to it by the delictual act of the k party; the 3P is asserting a right based on the k, but on the fault for which the k simply provided the occasion.
  
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  It is entirely possible that the performance of a k may be the basis for an action in delictual liability against a k party, even in the absence of k-ual fault and without regard to the obligations set out in the k in question, if that party failed in its general duty to act reasonably.
  
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  The parties to a k are therefore delictually liable for the damage which they may cause to 3P in the context of their k-ual relationship, by their failure to meet the standard of reasonable conduct in the circumstances of that relationship.
  
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  While a k party may fail to meet its general duty to act in good faith and in a reasonable manner, notwithstanding the content of the k and the parties’ conduct in terms of its k-ual relationships, it is nonetheless indisputable that those two factors have an influence in assessing the delictual fault.
  

Caisse Populaire de Charlesbourg v. Michaud, [1990] R.R.A. 531 (C.A.).

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  If the accountants are not asked to verify the information and make it clear that the information has not been verified, then they cannot be said to have committed a fault when their report is based on wrong information from the client
  
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  but, in this case, the standard is not one of gross negligence but of the reasonable prudent and diligent accountant. It is the civil standard of extra-k liability because there is no contract.
  
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  the first fault was in not making further inquiries into the information that was given
  
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  the second fault was in the ambiguity of the report itself which on the one hand led the reader to believe the information had been verified, but on the other notes that it is possible that there is information that they didn’t have, so they can’t say if the report is accurate of not.
  
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  Baudouin is very annoyed at this and says this is essentially like saying: we have acted professionally and expertly. However, everything we have said could be false, inexact, incomplete and thus does not represent the truth. A professional report is supposed to mean something to the reader.
  
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  however, the expertise of the bank is undeniable, indeed they had questions about the report and thus proceeded to revise it asking for more information from Mr. Lebel. Moreover, they couldn’t say for sure that they wouldn’t have lent him the money anyway.
  

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  this case is very interesting because it touches on all the elements that Jutras brings up, especially the conflict between the duty to provide accurate information and the duty to self inform, and how the relative expertise of the parties factors into the equation. – if the 3d party has any expertise, the reliance will be a lot harder to establish
  
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  in this case, the accountants met two criteria of the Bail test: they should have known the information that was withheld, and they induced confidence in their report through their own statements. But, there was no informational vulnerability on the part of the bank who should have known better. Moreover, just as Jutras predicted, a number of these cases will be resolved at the causation stage: was the withheld info really the cause of the damage? In this case, no. Bank’s own negligence was a mitigating factor, as was the deceased’s in Poulin, and they probably would have lent him the money anyway.
  
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  shows how although there is no “duty of care” limitation as there would have been in the common law (Hedley Byrne), causation plays the same role in limiting liability
  
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  it also shows how they couldn’t avoid liability by saying there was no contract: the court found an x-k duty grounded in the standard of reasonableness
  

Class notes: wrongful life doesn’t exist in QC law

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  in Cooke v. Suite, the parents were able to sue, because they didn’t want to have more kids and she had the operation because they knew they couldn’t afford more kids
  
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  Chamberlain says there is nothing in public order that prevents this kind of claim: family planning is the right of Quebeckers, so nothing prevents a claim for damages by the parents for the costs of the pregnancy
  
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  the question is whether the child can sue: not in Quebec
  
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  in France, the “Perruche” decision allowed
  

-Cour de cassation allowed the child’s claim in x-k;

-the legislator reacted and said no more actions for wrongful life  clearly policy consideration

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  Jukier says apart from public policy, there is an argument grounded in causation that limits this type of claim: there is no direct link between the fault and the damage: it was the rubella that caused the baby to be handicapped, not the doctor’s failure to inform – his failure to inform may have led to the baby being born, but he is not responsible for the fact that it is handicapped, nothing he could have done would have prevented the handicap
  
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  in the case where the parents sue as in Cooke v Suite, the claim is contractual
  
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  What if doctor knows that the patient has a communicable disease, i.e. an STD: Is there an obligation to third parties? If the patient’s partner contract the disease, does she have a claim?