New diagrams: organ donations and experiments

(English follows)

Deux nouveaux diagrammes aujourd’hui, pour compléter la section sur les soins: les articles 19 à 25, traitant du consentement à l’aliénation d’organes, et à une expérimentation médicale. Ces articles indiquent les cas où il est permis ou interdit de faire un don d’organes ou de subir, ou faire subir, une expérimentation à un patient.

En général, la loi donne libre choix à un majeur pour consentir, mais s’assure de protéger les mineurs ou les personnes inapes à consentir.

Ci-dessous, les articles réarrangés. Dans la colonne de gauche, les règles concernant de droit d’aliéner ou de soumettre quelqu’un à une expérimentation, et dans la colonne de droite, les modalités d’exercice de ces droits.

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Two new diagrams today to complete the section on Care: articles 19 to 25, related to consent to alienation of organs (organ donation) and to undergo a medical experiment. These articles specify cases where it is permitted or forbidden to donate an organ, or to take part in, or force someone to take part in an experiment.

In general, the law allows the patient of full age freedom to choose what to do with his/her body, but makes sure to protect minors and those unable to consent.

Image below are the same articles rearranged. In the left column are the rules concerning the right to alienate or experiment, and the column on the right contain rules on the conditions governing the exercise of the rights.

Small Claims Sunday #2

A truckload of decisions this weeks, from which I’ve picked a few.

First, two decisions on latent defects on houses. Latent defects, or “vices cachés” are defects that were hidden and unknown by the buyer, until something breaks and people find out about them.

Tremblay c. Pilote (latent defects/vices cachés in house)
Plaintiffs bought a house from Defendant in 2001. In 2011, after water damage, they found out required drains were not installed in the foundations, as would’ve been mandatory from regulations. The house was built in 1989. Defendant himself bought the house in 1995 and did not know it was missing drains.
Result: The legal warranty in CCQ 1726 applies, and Defendant is liable for the damages since Plaintiffs were able to prove the latent defect, their ignorance of the defect, and that the defect was severe. Defendant was held liable for $7000 (maximum allowed in small claims).
Note that whether Defendant knew about the defects has no impact on his liability. He does potentially have a recourse against the people from whom he bought the house, and the builder, if he can find them.

Avenel c. Gauthier (latent defects in house)
Plaintiff bought house in 2010. 4 months later, sewer backup as they flush the toilet, due to the evacuation drain connecting the house to the city sewers having caved in.
Result: The judge rejected the claim, as Plaintiff’s proof did not establish that the damage existed before the sale, even though it has only been 4 months since they bought the house.

Next, 2 decisions involving cities. Suing a city is pretty hard in general due to many immunities different laws grant them, but not impossible.

Roberge c. Saguenay (Ville de) (water damage to property due to river)
Plaintiff is suing the city of Saguenay for water damage to basement caused by overflowing river.
Result: Claim rejected. The law making cities responsible for waterways on their territory (Loi sur les compétences municipales) states at §105 that municipalities must re-establish normal flow of a waterway when informed of an obstruction. In this case, the city has been regularly checking on the river, which is more than what the law requires, and has not detected any anomaly. Moreover, the city was never informed of any obstruction. Therefore, no fault has been committed by the city.
Note that in this case, the judge was still generous and did not condemn Plaintiff to costs, as she was unaware of the Loi sur les compétences municipales. The judge would probably not be as lenient if she were represented by a lawyer, at the Cour du Quebec.

Deschesnes c. Saguenay (Ville de) (car damage due to pothole)
Plaintiff is suing the city for damages to his car tire & rim after driving over a pothole.
Result: Court condemned the City to partial damages. §604.1 of the Loi sur les Cités et Villes states the City is not “responsable des dommages causés par l’état de la chaussée ou de la voie cyclable aux pneus ou au système de suspension d’un véhicule“. However, because of §1474 CCQ, the city “may not exclude or limit his liability for material injury caused to another through an intentional or gross fault”. It has been proven that the City knew about the pothole on May 30th, 2 days before the accident on June 1st, and had not taken measures to fix it or block it off. The pothole was still not fixed 2 days after the accident. The court considered this to be wanton or reckless negligence = gross fault.
However, the court only allowed part of the claim, as Plaintiff did not prove the rim (scratched) needed to be replaced. The court still allowed a certain amount, as it had indeed been damaged.
Note: The Court’s conclusion of wanton or reckless negligence was partly based on the City’s behaviour after the fact. The city official testified it takes about 2 days to fix a pothole, meaning it should’ve been fixed July 1st in the afternoon, or, considering the request to fix had been put out May 31, July 2nd, after the accident. On could argue that at the time of the accident, there hasn’t been wanton or reckless negligence yet, and the only fault was not putting signalling around the hole.

Finally, 2 cases about warranties.

Bois c. Gagnon Frères Immeubles inc. (Magasin d’Alma) (warranty on washing machine)
Plaintiff is suing for cost of repairs on a washer bought in 2005, invoking legal warranty. The timer on the washer had been fixed 3 times by the owner since the purchase, without having notified the seller. In 2011, the rince cycle stops working.
Result: Court rejected claim. Plaintiff needed to notify the seller when the timer broke.

Sukherman c. BMW Canada inc. (warranty on vehicle)
Plaintiff is suing for repairs on the motor of his BMW (bought in 2003, now shows 121,078 km).
Result: Plaintiff is a consumer and benefits from the Loi sur la protection du consommateur, whereby goods must be able to serve normal use for a reasonable amount of time. This warranty applies even if the contractual one expired. A normal motor should last hundreds of thousands of kilometers. Plaintiff was awarded $7000 (upper limit for small claims, price for fixing motor: $9,251.46).

SCC invalidates Viagra patent, reiterates basic patent principle

The Supreme Court of Canada has just released a decision today in which it voids Pfizer’s patent for viagra.

The SCC restated the basic principle of the patent system:

The patent system is based on a “bargain”, or quid pro quo: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. This is the basic policy rationale underlying the Act. […]

The issues in this case must be considered in light of the quid pro quo: Is the public getting what it ought to be getting in exchange for exclusive monopoly rights?

The Court ruled that Pfizer did not meet the disclosure requirement. The Viagra patent lists different classes of compounds, and the wording of the patent did not specify which compound was useful to treat erectile dysfunction.

Although Patent ’446 includes the statement that “one of the especially preferred compounds induces penile erection in impotent males” (A.R., vol. X, at p. 173), the specification does not indicate that sildenafil is the effective compound, that Claim 7 contains the compound that works, or that the remaining compounds in the patent had been found not to be effective in treating ED. The claims were structured as “cascading claims”, with Claim 1 involving over 260 quintillion compounds, Claims 2 to 5 concerning progressively smaller groups of compounds, and Claims 6 and 7 each relating to an individual compound.

Pfizer defended itself by claiming that anybody just had to test the 2 final compounds and they’d figure it out. The SCC didn’t buy that and voided the patent.

[…]the public’s right to proper disclosure was denied in this case, since the claims ended with two individually claimed compounds, thereby obscuring the true invention. The disclosure failed to state in clear terms what the invention was. Pfizer gained a benefit from the Act — exclusive monopoly rights — while withholding disclosure in spite of its disclosure obligations under the Act. As a matter of policy and sound statutory interpretation, patentees cannot be allowed to “game” the system in this way. This, in my view, is the key issue in this appeal. It must be resolved against Pfizer.

The Viagra patent is set to expire in 2014, so the generic producers get at about a 2-year head start in the market.

Small Claims Sunday

I have to admit I have a strange fascination with small claims. The decisions are short and concise, and provide a very interesting look at the legal issues people run into. The judgements also provide very practical pointers regarding what needs to be done in a lawsuit, as even though it’s small claims, nobody is allowed to be sloppy.

I’m planning on making this a weekly instalment to be published on Sundays, although this week’s post is a little late. The only decision out this week is Zhang c. Liu.

The plaintiff claims $6 343,72 for renovation work on the defendant’s house. According to the plaintiff:
– The agreed price was $4000, a “friend’s price” since he knew the defendant
– The defendant has only paid $2000
– The market value of the work done is $8 343,72, which he is demanding (minus the $2000 paid)

The defendant claims:
– The agreed price was $2000, which she paid
– She later verbally informed the plaintiff of her dissatisfaction and demanded corrections
– Plaintiff then demanded $2000 for corrective work, which defendant refused to pay.
– Plaintiff demands the reimbursement of the $2000 she originally spent.

Result: the judge rejected both claims. Rules of proof requires a party to show their version is more likely than their opponent’s.
Problems with Plaintiff’s proof:
– No contract had been signed
– Contradictory proof on the nature, quality, extent, and price of the work.
– discrepancies in the Plaintiff’s version:
— the list of work done provided was inexact and some entries were doubled
— Plaintiff couldn’t explain how he came up with prices
— Plaintiff couldn’t tell when the work was done
— Plaintiff claimed price of materials, but had no receipts

Problems with Defendant’s proof:
– she testified and provided some photographs but no expert testimony.
– she had never notified plaintiff in writing about the poor job, or otherwise given him formal notice.

New diagrams: Care / Des soins

Voici le premier set de diagrammes en français, portant sur l’autorisation aux soins. Le code civil énonce le principe voulant que nul ne puisse porter atteinte à l’intégrité de la personne sans son consentement. Les soins médicaux constituent une atteinte. Il est donc nécessaire d’encadrer l’obtention du consentement.

Nous présentons ici 2 versions des articles 10 à 18 du CCQ portant sur le consentement aux soins.

Le premier diagramme présente les articles selon l’ordre et la structure du code.

Le deuxième diagramme reprend le style des deux colonnes (voir billet précédent). La colonne de gauche présente les règles concernant qui peut consentir, et la colonne de droite contient les modalités s’appliquant au consentement.

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This new set of diagrams are on consent to medical care. The Civil Code sets down the principle whereby no one may violate a person’s physical integrity without consent. Medical care are considered a violation, so it is necessary to get a person’s consent before providing care.

We have here 2 versions of articles 10 to 18 of the Civil Code of Qc, which are on consent to care.

The first diagram is a straightforward visualisation of the articles, closely following the CCQ’s order and structure.

The second diagram follows the two-column system put forward in the last post. The left column contains rules on who may give consent, and the right column, the conditions that applies to the consent. I believe the two-column system helps a lot in understanding how the various rules relate to each-other.

First diagrams: successions

The first set of diagrams have just been posted, and can be found here: Order of devolution of successions.

This chapter in the Code deals with the distribution of a deceased’s assets in the absence of a will. This section is especially interesting to visualise, as the rules follow a strict logic, but are written in an awkward way.

We have two flowchart diagrams. The first one is a straightforward flowchart that respects the articles’ sequence and the structure of each article. The 2nd one is a digested version. If you analyse the chapter, you see 3 types of articles: definitions, rules about the proportion which groups of relatives inherit, and rules about how much each individual inherits.

The 2nd flowchart has definitions removed, and the 2 columns separate rules for groups of relatives and rules for individuals.

We have also made 3 other simple infographics based on the rules in this chapter.

Diagram representing the members of different groups of relatives defined in the Code.

Venn diagram showing share by group of surviving relative. Note: descendants have priority, so apply the other circles only if there are no descendants.

Simple version of the above diagram.

Welcome!

Lexagraph finally has its own home in the big big web, and hopefully we’re here to stay!

We had a tiny bit of a snafu 2 weeks ago as a system update by our host wiped out our new WordPress install, and of course nobody had any backups at that point. (These things always happen to me somehow.)

Hopefully everything will go well now!

Content should be uploaded shortly. :)