Being a carrier isn’t easy!
In addition to the various obligations imposed by the Highway Safety Code, carriers are also subject to a specific liability regime in the event of a claim for cargo damage, as provided by the Civil Code of Québec (C.c.Q.).
To fall under this specific regime, the carrier must be party to a transport contract—not, for example, a service contract.
Transport Service Intermediary or Carrier?
The Civil Code of Québec defines a transport contract as one in which a carrier undertakes to move goods[1]. This contract is documented in a bill of lading, which must be provided to both the shipper and the initial[2] carrier.
In contrast, a service contract is defined as one in which a person agrees to perform work or a service for another in exchange for payment[3].
Thus, a transport service intermediary mandated to find a carrier is subject to a service contract, since their role is not to transport the goods but to find someone who will. To be subject to the specific liability regime, the central purpose of the contract must be the transportation of goods.
The following elements therefore do not apply to transport service intermediaries, who are governed by a different regime.
What Does This Specific Liability Regime Provide?
Article 2049 C.c.Q. establishes a result-based obligation for the carrier. Therefore, unless specific defenses apply (described below), the carrier, and any successive carriers, must deliver the goods to their destination. It is not enough for the carrier to merely attempt delivery.
If the carrier fails to meet this obligation, due to loss or damage to the goods, they must compensate for the resulting harm. They can only be exempted by proving that the damage was caused by force majeure, an inherent defect in the goods, or normal shrinkage.
When a bill of lading is issued, the carrier’s liability is limited to $4.41/kg of the shipment’s total weight. This limitation does not apply if no bill of lading was issued or if the shipper declared a higher value in the bill of lading[4].
No Notice, No Recourse
As a general rule in civil liability matters, a claim is subject to a three-year limitation period. In the field of transportation, this limitation period begins either on the date the goods are delivered or the date they should have been delivered[5]. However, this limitation period is conditional upon the submission of a written claim within 60 days of delivery or within 9 months of the shipment date if the goods were not delivered[6]. This is referred to as forfeiture of the right to claim in the absence of notice within the time limits prescribed by law.
In other words, a person who has suffered damage due to the loss or breakage of goods cannot claim compensation from the carrier if the notice was not sent within the prescribed time frame.
The purpose of this notice is to inform the carrier of the alleged issue and to allow them to examine the damage and the relevant elements for their defense[7]. The law requires that this notice be given even if the loss or damage is apparent to the carrier at the time of delivery[8].
Is a Phone Call Enough?
Although Article 2050 C.c.Q. requires the claim notice to be in writing, courts have shown flexibility. A verbal notice may suffice if the intent of the notice was communicated to the carrier and the carrier accepted it, waiving the requirement for a written notice[9].
However, if the notice was given verbally, it must include a clear claim[10]. A simple conversation does not meet the requirements of Article 2050 C.c.Q. if the carrier does not feel obligated to compensate for the damage. The notice should resemble a formal demand.
Do I Need to Know the Damage Amount When Giving Notice?
Case law has established that the exact amount of the claim is not required in the notice[11]. Therefore, not knowing the total value of the damage at the time of the notice is not fatal.
What matters is that the notice allows the carrier to understand the nature and extent of the damage or loss so they can assess the situation and prepare their defense.
Whether you are a shipper, carrier, or recipient, it is important to keep these deadlines in mind to preserve your right to claim, or, in the case of the carrier, to invoke the absence of notice as a defense.
[1] Civil Code of Québec, CQLR c. CCQ-1991, art. 2030
[2] Regulation respecting the requirements applicable to bills of lading, chapter T-12, r. 6, arts. 3 and 9
[3] Civil Code of Québec, CQLR c. CCQ-1991, art. 2098
[4] Regulation respecting the requirements applicable to bills of lading, chapter T-12, r. 6, Schedule 1
[5] Civil Code of Québec, CQLR c. CCQ-1991, art. 2020
[6] Civil Code of Québec, CQLR c. CCQ-1991, art. 2050
[7] Équipement industriel Robert Inc. v. 9061-2710 Québec Inc., 2002 CanLII 4186 (QC Superior Court) (upheld on appeal)
[8] Same as [7]
[9] Same as [7]
[10] Cigna Insurance Company of Canada v. Gatien Transport, 1998 CanLII 9393 (QC Superior Court); 635 7318 Canada Inc. v. Transport Verville Ltd., 2011 QCCS 5475 (CanLII)
[11] Civil Code of Québec, CQLR c. CCQ-1991, art. 2050; 635 7318 Canada Inc. v. Transport Verville Ltd., 2011 QCCS 5475 (CanLII)
This publication was featured in Transport Magazine.