Aubrais v. Laval, [1996] R.J.Q. 2239 (C.S.) (edited)

Loss of chance : 2 types

1. 
   Classical : distinct type of damage/method of evaluating damages
   

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  Situation where fault causes loss of chance to obtain a benefit or avoid an injury (e.g. negligently misplaced lottery ticket; loss of support from deceased child)
  
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  General CivL acceptance
  
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  Classical theory accepted in QC (another aspect): measure quantum of
  damages by the statistical probability of chance materializing (e.g. If you
  had a 5% chance of winning the negligently mishandled lottery ticket for a
  $100 cash prize, your damages are $20).
  

2. 
   Controversial : medical cases of uncertain causality
   

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  Actual damage has occurred, but causal link to fault is tenuous
  
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  Causal link to lost chance more probable; quantum set according to probability of chance/degree of injury
  
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  France and Belgium crts – though doctrinal criticism
  

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  Inventing new damages to overcome causation problem (‘immediate and direct consequences’ per 1607 CCQ)?
  
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  Weakening the ‘real and certain’ requirement for future damages (‘certain and able to be assessed’ per 1611(2) CCQ)?
  
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  Gonthier J makes distinction w/QC law (Laferrière), where loss of chance theory part of causal analysis, i.e. probable causation, not type of damage independent from cancer. BUT in absence of causal link on balance of probabilities with greatest injury, possible causal link with lesser injury (e.g. death vs quality of life)
  

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  According to Viney, the lawyer who omits to file an action properly or on time and thereby deprives the client of a chance of winning the case is a classic example of loss of chance (560).
  
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  As Gonthier writes, there is little doctrinal resistance to the application of the theory of loss of chance in the classical cases (561). Thus, in France, Marilyn would have a claim for loss of chance against her lawyer.
  
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  According to Viney, French courts have established two conditions to limit the application of loss of chance:
  

1. 
   The lost chance must be real and serious, which means that the realization of the chance must have been at least likely.
   
2. 
   The courts must take into account the likelihood of realization of the lost chance in the evaluation of damages.
   

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  Laferrière tells us that loss of chance is rejected in Quebec in all but exceptional cases. The case before us is not an exceptional case, but rather one of the “classical cases”. According to Gonthier, in these “classical cases”, doctrinal writers are mistaken in stating that Quebec courts have awarded damages for lost chances.
  
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  Gonthier writes that while courts may be prepared to award damages which are somewhat uncertain or contingent on an event which is not guaranteed to occur, the courts require proof that the damage will occur or that the profit would have been realized, on a balance of probabilities. If this is satisfied, the damages are considered present and certain and, accordingly, the damages can be evaluated at their full value (586). “It is real damage, and not the chance, which is the pre-occupation of the court” (560).
  
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  Thus, in this case, a Quebec Court would have to decide, on the balance of probabilities, whether Marilyn was likely to have succeeded. Although they do not take probability into account per se, i.e. they won’t give her 51% of 50,000 if they think those were her chances, they may adjust the amount of damages based on the strength of her case. This is a fine distinction, but the difference is important according to Gonthier. (588) If the Quebec judge feels that she had a good chance of succeeding, but that she probably would have only got $30,000, she will get $30,000. The analysis is always based on what the actual damage or lost profit would most probably have been. Thus, the analysis is inherently speculative, but it is the speculation based on what she would actually have received, not a reduction in damages based on the likelihood of success.
  

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  The goal of this question is to highlight the impact that added uncertainty would have on the claim, in France and in Quebec.
  
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  France: In France, this added uncertainty would probably not be enough to take away from the fact that the chance was real and serious, however, it will most likely play into the award of damages. Her damages would be decreased to the extent that the probability of her success is weakened.
  
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  Quebec: In Quebec, this may change a lot. With an uncertain precedent, the Courts could still find that she would have succeeded on a balance of probabilities. However, if they find that she has a 50/50 chance because of the uncertainty of the state of the law, then her action for the lost profit will fail because she is not likely to succeed on a balance of probabilities.
  
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  Here, we are trying to draw a parallel with Laferrière and Lawson, but it is a bit more removed. Again, if she were to succeed, it would not be for the lost chance itself, but as in Lawson, it would be for the emotional stress that was suffered as a result of the knowledge of the lost chance.
  
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  Following a literal reading of Laferrière, it seems that she might be able to make such a claim. In Laferrière it’s the “knowledge that things might have been different” had she know earlier and been treated earlier, regardless of whether things would have in fact been different. As Gonthier states, “her chances may not have been sufficient for the law, but they were very real to her.” (610). Thus, she is compensated for the actual pain and suffering that she experienced as a result of knowing that she could have been treated earlier, not the hypothetical pain that she might have avoided had she indeed been treated earlier.
  
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  In this case, the causal link is a bit more attenuated. It is not Marilyn’s pain and suffering because of her own lost chance, but the pain and suffering she feels because of her mother’s lost chance, which was itself contingent on Marilyn’s chance. There may be too many contingencies here.