Kenneth Jull has done them. So has Paul Klasios and Philippe Dufort-Langlois. All are or were at one time in-house counsel who have conducted internal investigations, an unpleasant exercise described by a lawyer as being a bit of a dark art that presents unique challenges. Nearly every general counsel too will sooner or later face the need to conduct an internal investigation into events at an organization. At a time of greater scrutiny by regulators, stakeholders and the general public, organizations of all sizes and across all sectors are dealing with growing calls demanding greater disclosure and transparency.
Business
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Workplace investigations: Elephant in the room
Tags: workplace investigations -
Correctional officers do not have right to negotiate pension plans, rules Quebec appeal court
In a setback for the labour movement, the Quebec Court of Appeal overturned a lower court ruling that granted the union representing correctional officers the right to negotiate pension plans and staffing. -
Murder clauses
The list of private and public sector organizations that are trying to rewrite the rules and pass on risks to architects seems to be literally growing by the day. The City of Burlington in Ontario tried to do it, with its Request for Proposal (RFP) for the design of a new pavilion building. So too did the City of Kingston when it issued an RFP for a community centre. Educational institutions such as Ryerson University and the Colliers Project Leaders in Fort Frances had a go at it as did the Liquor Control Board of Ontario. And that’s apart from the biggest culprit, Infrastructure Ontario, a Crown Agency that has been the subject of untold spirited discussions among the architectural community. All told, the Ontario Association of Architects (OAA) issued half a dozen warnings over the past year to its 4,000 strong members about RFPs that were plagued with inappropriate, unfair and unreasonable conditions and expectations that unnecessarily subjected architects to unacceptable and uninsurable contract conditions. -
Canada tax agency ordered to pay almost $5 million in damages
Canada Revenue Agency has been ordered to pay nearly $5 million in damages to two well-known Montreal businessmen after conducting a tax investigation into an offshore investment vehicle they held. -
Quebec must compensate worker who became handicapped even though he worked under the table
The Quebec government has been ordered to provide lifetime benefits based on the salary a 25-year old man was earning while working under the table before he was struck by a bullet and became invalid. -
Bank ordered to pay nearly $50,000 in damages
The Toronto-Dominion Bank was ordered to pay nearly $50,000 in damages to a Montreal businessman of Iranian descent for failing to act reasonably when it cancelled his personal and money-services business accounts without explanation.The scathing 15-page ruling by Quebec Superior Court Justice Gregory Moore illustrates yet again the reach of good faith under the Civil Code of Quebec, sheds light on TD Bank’s questionable litigation practices and tactics, and raises questions over the bank’s debatable understanding of its obligations as a financial institution dealing with economic sanctions.
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Managing workplace sexual harassment
The series of revelations over the past year that sparked a seismic shift in public awareness of sexual misconduct by powerful men has also cast a harsh spotlight on workplace sexual harassment. Emboldened by the groundbreaking #MeToo and #TimesUp movements, growing numbers of women are speaking out — and that’s making organizations skittish, more so because they are under growing pressure to take a zero-tolerance approach to unacceptable comportment in the workplace.
Yet workplace sexual harassment is hardly a new issue. It has been on the legal radar since at least 1989 when the Supreme Court of Canada held in the landmark case of Janzen v. Platy Enterprises that sexual harassment is a form of sex discrimination and violates human rights legislation. Fifteen years later, Quebec became the first jurisdiction in North America to ban non-discriminatory workplace harassment, a move followed by Ontario in 2009, and in the ensuing years other provinces followed suit.
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Quebec taxman launches program that rewards whistleblowers
More than four years after the federal government introduced an offshore tax evasion tip line to fight offshore tax evasion and aggressive tax avoidance, Quebec’s tax authority is following suit by launching a whistleblower program that will offer monetary rewards. -
Gender pay gap exists within in-house counsel
Female general in-house counsel make approximately 78 per cent of the average total compensation that their male counterparts make, according to a study by executive search firm BarkerGilmore.
The study, entitled “2018 In-House Counsel Compensation Report,” also found that gaps in average total pay at managing counsel and senior counsel levels, with women making 90 per cent and 89 per cent respectively of what their male counterparts made. But despite the disparity in total compensation, female in-house counsel in 2018 experienced a base pay increase equivalent to that of male in-house counsel, 3.8 per cent.
Interestingly, Bob Barker, managing partner of BarkerGilmore said there does not appear to be any disparity in job offer compensation between men and women. Rather, the disparity appears to “grow up through an organization,” added Barker.
Other findings by the report, which surveyed 1,700 individuals, include:
• The median annual salary increase rate for all positions across industries dipped to 3.8 per cent, down 0.5 per cent from the previous year, with the life sciences sector experiencing the highest median increase rate of 5.2 per cent from 2016 to 2017.
• 41 per cent of all respondents believe their compensation is below or significantly below that of their peers in other organizations, with labor & employment lawyers and litigators reporting the greatest dissatisfaction. Those in the energy and banking/finance practice areas express the highest levels of satisfaction with over 24 per cent reporting compensation above or significantly above average.
• A staggering 41 per cent of respondents said they would consider a new position within the next year due to compensation issues.
• Not surprisingly, there is a significant disparity in pay for general counsel at publicly traded companies and those at private ones. Public companies also pay consistently more at all three levels of in-house counsel.
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National class action against Air Canada by former Aveos employees certified
Former employees of Air Canada’s overhaul maintenance centers have been given the green light to proceed with a national class action against the nation’s biggest airliner.Aveos, a former subsidiary of Air Canada until the company’s insolvency in March 2012, employed 1,800 people that worked at the airline’s overhaul and maintenance centers in Montreal, Winnipeg and Mississauga.
The class action seeks compensation for Aveos’ former employees, a figure that could rise up to $100 million, according to Trudel Johnston & Lesperance LLP, the Montreal law firm behind the class action.
Class action representative Gilbert McMullen alleges a violation of the Air Canada Public Participation Act. Until amended by Parliament in June of 2016, the Act required Air Canada to operate maintenance and overhaul centers in Winnipeg, Mississauga and in Montreal. Previous decisions by Quebec Superior Court and a five-member panel of the Quebec Court of Appeal unanimously concluded that Air Canada had breached the Act.
The class action also alleges that Air Canada acted in bad faith, including by deliberately provoking the collapse of Aveos, an issue that may give rise to punitive damages.
“The Court considers that Mr. McMullen has demonstrated a serious colour of right,” said Quebec Superior Court Justice Jean-François Michaud in a 27-page ruling in McCullen c. Air Canada. “The allegations of violation of the Act are supported by the chronology of events and reveal that Air Canada has significantly reduced maintenance and overhaul activities at the Centers. These facts were found by Castonguay J. and the Court of Appeal.”
Tags: Aveos -
Quebec financial regulator cracking down on illicit money-services businesses
Quebec’s financial watchdog is cracking down on businesses that illegally run a money-services business.
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Employer found guilty of manslaughter following fatal work accident
A general contractor has been found guilty of manslaughter after one of his employees was killed by being buried in a trench, marking the first time in Quebec that a breach of provincial occupational health and safety legislation served as the basis for a manslaughter conviction under the Criminal Code.In a ruling lauded by health and safety lawyers and one of the province’s largest unions, Court of Quebec Judge Pierre Dupras found Sylvain Fournier, an excavation contractor, guilty of criminal negligence causing death under section 220(b) of the Criminal Code and manslaughter or involuntary culpable homicide under section 222(5)(a) of the Criminal Code, which provides that a person commits culpable homicide when he causes the death of a human being, “by means of an unlawful act.”
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Quebec Court of Appeal harmonizes securities law with other provinces
The Quebec Court of Appeal eliminated a tactical advantage that could have emerged by launching national class actions in secondary market misrepresentation cases in the province after it held that Quebec securities rules were designed to be harmonized with provincial securities legislation across the country as a matter of substantive law.In a closely watched decision by class action and securities experts, the Quebec appellate court overturned a lower court ruling and found that parties seeking leave to launch an action for secondary market misrepresentations under the Québec Securities Act (Act) are not entitled to compel a public issuer defendant to disclose documents and information for the purpose of the leave proceedings.
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Terms of contract usurp good faith, holds Quebec Appeal Court
Former employees of an asset management firm who claimed that they were unfairly bought out just before the company was sold lost a legal battle after the Quebec Court of Appeal held that the duty to act in good faith does not mean that a party to a contract must impoverish itself to enrich the other.In a ruling that will likely reverse a growing trend by the courts to broadly interpret the notion of good faith, the Quebec appeal court reaffirms that the terms of a contract determines the rights of parties and that it almost always trumps the duty to act in good faith, a finding that will reassure corporate lawyers and the business world alike, according to securities lawyers.
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Revenue Quebec can issue demand letters to third parties outside of the province
The Quebec Court of Appeal has ruled the province’s tax authority can issue demand letters and request the disclosure of financial information from third parties outside the province to determine whether a taxpayer is subject to the province’s tax laws.The precedent-setting ruling will potentially have a substantial impact as it is widely expected to spur Revenue Quebec to issue more demand letters to third parties outside the province even though questions remain over the scope of the ruling, tax lawyers say.
