Do you need assistance in resolving a misunderstanding or a conflict? We can help. Below is a summary of the areas of civil law in which Le Palier Juridique can assist and represent you:
The law of succession is a vast subject, which goes beyond the rules specific to successions, and can involve many aspects of civil law (contracts, sales, rentals, mortgages, etc.).
In most cases, conflicts related to successions are caused by a misunderstanding between the liquidator of the estate and the people entitled to inherit.
Depending on when the conflict occurred in the succession process, many remedies may be available. The most common are an application with the court to clarify the parties’ rights in the succession, an application for the destitution of the liquidator or an application for the liquidator to produce a report on their administration.
In addition, the deceased person may have left a notarized, witnessed or non-witnessed will. In each case, questions about the real intentions or on the ability to make a will must be asked. It is also possible that the deceased person did not leave a will.
Disputes regarding successions are often emotional. It is therefore recommended to be accompanied by an attorney who will be able to represent you without any emotional attachment and will propose to you the solutions that are in your best interest.
The subject of contracts under our civil law is very diversified. As the expression goes, “the contract is the law of the parties.” In other words, each contract can contain specific elements. While the Civil Code of Québec, as well as other particular statutes, address in detail the question of contracts, many rules are not public policy, and the contract can therefore set other rules.
Consequently, when a conflict arises from the application of a contract, it is not always easy to determine the obligations of each party and much less to come to the conclusion of a breach bringing about legal consequences for the contracting party.
Therefore, before taking actions that could in the end turn against you and become irreparable, it is better to obtain legal advice. Your attorney will help you determine your best course of action.
The purchase agreement, along with the rental agreement, is the most common form of contract within the purview of our civil law. In general, this type of contract was not negotiated or was prepared for you without your understanding of all its subtleties.
In most cases, the issue lies not in the interpretation of the contract, but rather in its non-performance. It is therefore recommended to take the necessary actions to compel the co-contracting party to perform their obligations or, at the very least, to provide compensation for their non-performance. The most common cases of non-performance will relate to a defect in the product, a delay in the delivery or a failure to pay. The co-contracting party may also argue that their consent was wrongfully obtained upon the signature of the contract.
Finally, there may also be cases where the parties do not agree on the interpretation that must be given to the signed contract. These cases usually stem from the fact that the contract does not address the issue in a precise enough manner or does not address it at all. The course of action then is to verify if the law will cover such issues since the contract doesn’t or, if the opposite is true, if we can uncover an implicit common intention within the contract regarding the issue at hand.
Real estate law is another important component of contract law. It covers the sale itself, as well as latent defects and mortgages, which we will discuss separately.
Due to the very nature of the property involved, real estate cases can have a significant impact on your personal finances. Such cases are always an unpleasant ordeal.
The two most common cases in real estate pertain to applications for the execution of title and for the forced sale of the property when the property is owned by more than one person.
An application for the passing of title will essentially be filed when one of the parties fails to comply with a duly signed promise to purchase. Usually, this happens when one of the co-contracting parties refuses to execute a deed before a notary. It is therefore possible to obtain a court decision regarding the execution of title to give effect to the sale without the signature of the co-contracting party at fault.
An application for the forced sale is based on the principle that, subject to exceptions, no person is required to remain in indivision. Unfortunately, conflicts between co-owners can impede the purchase of one of the co-owners’ share or even the sale of the property. These cases must be referred to the court so that it may authorize the sale of the property under the conditions it specifies based on the parties’ representations. In some cases, the law also allows the court to solve matrimonial issues (e.g. child custody, spousal or child support).
Have you purchased a property and have discovered, to your surprise, latent defects that require fixing? If so, you may have recourse against the seller.
Latent defects are defined as defects that render the property unfit for the use it was intended for or that reduce the property’s usefulness to a point where the buyer wouldn’t have purchased the property or wouldn’t have paid as much if they had known about the defects. Both movable and immovable property can contain latent defects. Patent defects, however, are not guaranteed, unless the seller has made a commitment to that effect. A defect is deemed patent when it can be observed by a prudent and diligent buyer without consulting an expert.
If you have discovered that your property contains a latent defect, it is important to notify the seller of this in writing as quickly as possible. This formality is required for initiating an action for latent defects. Furthermore, prior to commencing work, unless there is an emergency, you must have the buyer examine the defect with the expert of their choice. You can, by the same token, issue to the buyer a formal demand of performance. It is equally important that you consult an expert to confirm the existence of the defect and determine that it existed prior to the sale.
The statutory limitation for such recourse is three years from the date at which the defect was observed. Therefore, even if you have purchased the property many years ago, you may still have recourse, so long as it is possible to demonstrate that the defect existed when the property was sold.
In some instances, prior sellers can also be involved in defects. In such cases, we often see a chain of claims for a guarantee where each previous buyer claims damages to their seller.
Mortgages are highly regulated. Usually, issues occur when faults accumulate and the lender begins the procedures required to seize the property.
In most cases, there are no efficient ways to prevent such foreclosures. The next course of action will be to come to an agreement with the lender despite the fact that you have very little leverage. We can help you try to come to such an agreement.
However, you can remedy your fault so long as the property in question has not been sold or seized as payment. The lender must be granted permission by the court to seize a property as payment if over 50% of the mortgage on said property has been paid. Since the process of selling a property is longer than that for seizing a property as payment, it may be beneficial to ask the court to deny such a request.
To a lesser extent, our civil law also sets out provisions regarding legal hypothecs, which are namely used by construction companies. Individuals holding such rights are not required to obtain your authorization to register a legal hypothec on on your property so long as they comply with the law.
Finally, it is possible that legal hypothecs be registered on your property even though the mortgage has been completely reimbursed. We can also help you eliminate such hypothecs.
Leasing contracts, also referred to as leases, are, along with the purchase agreement, the most common contract under civil law. We will discuss only leases that are not covered by the Tribunal administratif du logement (please refer to our Administrative Law page).
The two major types of leases involve commercial spaces and vehicles.
The terms and conditions of commercial leases are usually established by the lessor. Unlike residential leases, the lessor has a lot of latitude over the lease’s wording. Therefore, it is in the best interest of both the lessor and the lessee to obtain legal advice prior to making a commitment. Conflicts usually involve the lessee’s failure to pay rent or the lessor’s failure to perform their obligations under the lease. Since some damage may be significant for each party, it is often necessary to come to an amicable agreement quickly or to refer the case to the court so as to protect the parties’ rights.
As for the rental of a vehicle, since the contracts are usually signed with large companies, they provide very little latitude. The Consumer Protection Act sets out remedies for individuals. Companies, however, must rely on the contract to understand their obligations and to seek remedies.
In comparison with other types of contracts, the insurance contract has many particularities, namely with regard to the relationship between the insurer and the insured. The insurer has certain specific rights due to the principle of mutual trust that must exist between both parties.
Therefore, if the insurer discovers that the insured lied, either voluntarily or by omission, during the purchasing of an insurance policy, it may in some cases reject partially or entirely a claim submitted.
However, insurers often refuse to pay an insured for reasons that they are not able to justify, which they have no right to do.
In any case, it may be necessary to be accompanied by an attorney to receive the remedy to which you are entitled.
The employment contract is another important component of contract law. We will discuss here cases that are not covered by the Act Respecting Labour Standards. For more information on such cases (i.e. cases relating to the CNESST), please refer to our Administrative Law page. These cases involve corporate managers who hold decision-making authority within the company.
For these people, the vast majority of the provisions of the Act Respecting Labour Standards do not apply, and should a contract be terminated, both the employer and the employee may find themselves in a situation that is difficult to resolve.
For the employer, many things must be considered, namely the company’s image, the resentment the employee may feel following their termination, whether or not the company should compensate the employee following their termination and the measures required to ensure a smooth transition with the terminated employee. The employee, on the other hand, must obtain fair compensation for their termination—whether voluntary or not— and a recommendation letter that will allow them to quickly secure new employment if necessary.
Termination can sometimes be tumultuous, which is why it is preferable to be accompanied by an attorney to evaluate objectively your rights and obligations.
CLAIM FOR DAMAGES
Damages are not in themselves an independent right, as they may be claimed individually or collectively with other types of damages.
The purpose of a claim for damages is to compensate the person who makes the claim for material, moral or physical damages sustained.
The course of action is then to establish the fault, the damages and the causal link between the alleged fault and the damages sustained.
The court will then determine if a fault had indeed been committed and, if so, if said fault has brought about the damages, in which case it will then determine the value of the damages.
Claims for damages are not an exact science. Objectively quantifying moral damages can be a delicate task—even for the courts, which is why it is important to clearly expose to the court, with supporting evidence, the claim in question.
Civil liability law concerns all relationships where a contract has not been executed by the parties, e.g. in the case of an accident or of actions that may have caused damages to someone else.
To determine if someone is liable under civil law, one must first determine if a fault has been committed and if there are any damages, and then establish a causal link between the two.
In summary, this regime resembles that of a claim for damages in a contractual context, with a few notable exceptions.
The injunction is a court order that requires an individual to take or not to take particular action.
Due to its restrictive nature, an injunction can be difficult to obtain, as many evidence and control criteria must be satisfied.
An injunction may be useful in many cases, namely to prohibit someone from coming into contact with another, to put an end to unfair competition, to force someone to remove structures, etc.
There are three types of injunctions, i.e. the interim injunction, the interlocutory injunction and the permanent injunction. Since all three injunctions are used at various stages of the proceeding, it is not rare for all three to be used during the course of one action.
In civil law, a decision may be appealed if, upon analysis, it has been determined that the court has committed an obvious and crucial error of fact or of law.
The goal here is not to retry the case, but rather to determine if an error has been made with regard to legal standards or to the assessment of the evidence.
The burden of proof of the appellant is therefore quite significant, which is why it is usually necessary to perform a thorough review of the file before submitting an application. It is only after such an analysis that our firm will determine if there is cause or not to proceed with an appeal.
An application to appeal is, along with the application for judicial review, one of the most burdensome procedures that involve some of the heaviest burdens of proof under civil law.