In Quebec, all professionals are liable for acts performed in the exercise of their activity and are likely to create damages that may, under certain conditions, engage their professional liability and give rise to sanctions. These are damages resulting from errors, faults, negligence, or omissions committed during professional acts performed by the company. But what are the limits of professional liability?

When Can Professional Liability Be Incurred?

Professional liability may be incurred whenever damage has been caused during a business activity, and in particular when:

• Suppliers or customers have suffered damage during contractual relations
• Third parties have suffered damage, even if they have no contractual relationship with the company.
  

Victims are entitled to claim compensation for the harm they have suffered.

Three conditions must be met to establish liability:

• The person acting on behalf of the company must have committed a fault
• The fault must have caused damage, resulting in injury to the victim
• There must be a direct link between the fault and the damage suffered.

Thus, a company's professional civil liability cannot be invoked in any of the following cases:

• Damage has been suffered, but no fault has been committed
• A fault has been committed, but has not caused any damage
• A fault has been committed, and a person has suffered damage, but no direct link can be established between the two.

What Is a Fault?

A fault is a wrongful action or omission, defined as contrary to what a reasonable person would have done in the same circumstances, in other words, a person acting prudently and diligently.

In each case, the notion of a reasonable person is assessed according to professional circumstances (for example, in the case of an injured person, a person without medical competence is not expected to behave in the same way as a doctor).

Proving and Contesting Fault

The victim of the damage must prove that the company's representative did not act in the same way as a prudent and reasonable person would have done.

On the other hand, the company must demonstrate that, in the same situation, a reasonable person would have acted in the same way.

Testimony may be taken to establish or refute fault.

Employers Held Liable for Employee Misconduct

The law provides that an employer who asks an employee to perform a task on his or her behalf may be held liable for damages if the employee is at fault for performing the task. The person responsible is thus held liable for the incident and the damage caused, even if he or she has not committed any fault, although this does not mean that the employee's liability disappears.

In short, three conditions must be met to establish the employer's liability:

• There is a clear relationship of subordination between the person who committed the fault and the employer (even if the employee is a volunteer)
• The employee has committed a fault
• The employee was in the performance of his or her duties when the fault was committed.
  

However, the employer may be relieved of liability if he can prove:

• That it is not the employer of the person at fault
• That the employee was not at fault in the performance of his or her duties
• That the damage was caused by the fault of a third party, by the victim himself, or by force majeure.
  

No one is immune from an error, fault, negligence, or omission committed by himself or an employee in the performance of his duties. To protect themselves from the consequences of a claim, which can lead to insolvency, and with the increasing number of disputes, a growing number of professionals are deciding to take out professional liability insurancee, even if this is not compulsory for many activities.