In a recent case,1 the Court of Appeal of Québec reiterated that the application of the "loss of chance theory" is limited and exceptional under Quebec law. According to this theory, a loss of chance can only be indemnified up to the likelihood that this chance will be realized, even if that probability is less than 50%.2 The judge therefore focuses on the chance itself, and compensates in accordance with its degree of probability.3
In 2006, Cansica Holdings Inc. mandated its lawyers to recover amounts it had loaned to third parties (Debtors). The loans granted totaled $276,300 and were secured, among other things, by an immoveable hypothec.
Although they took some steps to recover this debt, Cansica’s lawyers only filed suit on February 17, 2011, after the claim became prescribed on May 5, 2007. The lawyers’ fault was therefore admitted, seeing as they recognized having failed to take timely action to interrupt the limitation period of Cansica’s right of action.
Owing to this fault, Cansica was claiming, in addition to the value of the loan’s capital, over $500,000 in interest and additional indemnity and the fees paid to its lawyers to carry out the mandate, which the parties had set at $15,000.
The Superior Court specified at trial that, to succeed in its claim, Cansica had to show on the balance of probabilities the amount it would have recovered on its loans had it not been for its lawyer’s fault. The Superior Court also held that the damages had to be assessed on the date on which the fault was committed, namely the date on which the right of action became time-barred.
Based on these premises, the trial judge concluded that even if its lawyers had acted in due time, Cansica would only have recovered $67,247.67 on the execution of the immoveable hypothec securing the loans seeing as, in the Superior Court’s opinion, out of all the property in the debtor’s estate only the sale of that immoveable would be likely if the debt were to be realized.
The Superior Court therefore ordered the lawyers to pay $67,247.67 and a further $15,000 in reimbursement of the fees paid, with interest at the legal rate and additional indemnity as of the date of the demand letter.
Dissatisfied with the value of this award, Cansica appealed to have it increased to $812,779.77. Essentially, Cansica argued that the trial judge should have applied the notion of “loss of chance” when determining the damages suffered and thus indemnify it for the chance lost. In other words, Cansica was asking to be indemnified for the “lost chance” to recover the debt, even if there was less than a 50% probability of recovering the debt against the other property making up the Debtor’s estate.
Court of appeal decision
In this case, the Court of Appeal had to determine which approach to adopt when assessing damages incurred in the context of a loss of “legal”4 chance in a matter involving a lawyer’s professional liability.
After analyzing the impugned decision, the Court of Appeal concluded that the traditional Quebec approach recognized by the Supreme Court in Laferrière v Lawson5 must be privileged, namely that of indemnifying actual damages rather than the chance of their realization.
Following the Supreme Court, the Court of Appeal therefore held that the doctrine of “loss of chance” has a very limited application under Quebec law. This doctrine only applies in rare cases, as it is “only in exceptional loss of chance cases that a judge is presented with a situation where the damage can only be understood in probabilistic or statistical terms or where it is impossible to evaluate sensibly whether or how the chance would have been realized in that particular case.”6
For the Supreme Court, the purest example of such a lost chance is that of the “lottery ticket which is not placed in the draw due to the negligence of the seller of the ticket. The judge has no factual context in which to evaluate the likely result other than the realm of pure statistical chance. Effectively, the pool of factual evidence regarding the various eventualities in the particular case is dry in such cases, and the plaintiff has nothing other than statistics to elaborate the claim in damages.”7
Consequently, in all situations similar to this theoretical example, the judge would have to decide based on pure statistical chance due to the lack of factual context in which to evaluate the likely result.8 The court does not, however, specify how to actually go about evaluating damages based on statistical chance alone. It must also be concluded that in all other cases, including this one, the loss of chance theory should not be used to supply a causal link between fault and damage.
In the Court of Appeal’s opinion, the trial judge therefore did not err when she applied the traditional approach and concluded that Cansica would only have recovered the proceeds from exercising the hypothecary right against the immoveable belonging to the Debtor, there being little chance that the other means for collecting the debt might be realized under the circumstances.
In other words, the damages caused by the “legal” loss of chance can only be indemnified when the probability of collecting the debt against the Debtor’s estate is 50% + 1. After analyzing all of the possibilities of recovering the debt against the debtor’s estate, the indemnifiable damages must correspond to the amount which, on the balance of probabilities, is likely to be recovered.
In the absence of any manifest and over-riding error, the Court of Appeal dismissed Cansica’s appeal and upheld the trial judgment.
In this decision, the Court of Appeal reaffirms that the loss of chance doctrine only applies exceptionally under Quebec law, especially in matters of professional liability. In the end, it is the damages actually suffered that may be indemnified, not the lost chance.
To summarize, professionals who commit a fault that causes their client to lose an opportunity to realize a profit or avoid a loss may be held liable for the actual damages they cause. The client must therefore demonstrate, on a balance of probabilities, that the profit would have been realized or that the loss would have been avoided had it not been for the professional’s fault. If this burden is met, the indemnifiable damage will be equal to the loss of revenues or profit, and not the fictional value ascribed to the lost chance.
The authors wish to thank Ione Deda Alves, a law student, for her assistance in preparing this legal update.
1 Cansica Holding Inc. v. Boidman, 2018 QCCA 2130.
2 Therefore, “[TRANSLATION] in the event that, had it not been for the fault, the probability that the chance might arise stood at 40%, a court might decide to indemnify up to 40% of that portion of the chance” (Lemieux v. Aon Parizeau inc., 2018 QCCA 1346, para. 78).
3 Laferrière v. Lawson, 1991 1 SCR 541, 601.
4 Patrice Deslauriers and Emmanuel Préville-Ratelle, “La responsabilité des avocats”, École du Barreau du Québec, Responsabilité, Collection de droit 2017-2018, Vol. 3, Cowansville (Qc), Yvon Blais, 2017, 109, p. 116 and 117.
5 Laferrière v. Lawson, supra, note 3.
6 Cansica Holding Inc. v. Boidman, supra, note 1, para. 18, citing Laferrière v. Lawson, supra, note 3, 603.
7 Laferrière v. Lawson, supra, note 3, 603