Law in Quebec

News about Quebec legal developments


Legal Practice Management

  • Federal government unveils new corporate social responsibility policy for extractive sector

    Less than a month after the federal government introduced a new transparency law that that will require oil, gas, and mining companies in Canada to disclose their payments to governments around the world, Ottawa announced that it intends to punish companies in the extractive sector that do not adhere to its new corporate social responsibility policy by withdrawing Canadian diplomatic and economic support.

    The new corporate social responsibility (CSR) strategy redefines the role of the Office of the Extractive Sector CSR Counsellor, introduces new international best practices extractive companies should adopt, and for the first time links Canada’s “economic diplomacy” assistance in foreign jurisdictions to a company’s adherence to the new policy. While the federal government has been lauded for its efforts, legal observers have voiced concerns over the lack of guidance and legislative framework surrounding the new strategy.

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  • Differences between the sexes

    Lawyers work hard. More than half of Quebec lawyers work put in more than 40 hours a week. That’s not surprising for a profession whose image is intricately linked with workaholism.

    What’s interesting is the differences between the sexes. Surprisingly, more women than men put in 60 hour-plus weeks than men, according to a report by Quebec’s law society. While nine per cent of women surveyed by the Barreau du Québec said they work more than a sixty hours a week, only six per cent of men made the same claim. However, more men than women log 51-to-60 hour work weeks, and more women than men work between 31-and-40 hours a week.

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  • More women lawyers in Quebec than men

    There are more women who are lawyers in Quebec than men. Women represent 50.4 per cent of the Quebec legal society’s roll, the most of any North American jurisdiction. The spread is going to be much larger in the near future since far more women are taking up the legal profession than men. At present, the overwhelming majority of lawyers between 20 and 39 are women, a figure that is going to grow since more than 64 per cent of the students at the law society’s law practice program are women. That is one of the tantalizing glimpses provided by a 55-page report recently published by the Barreau du Québec.

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  • Appeal court provides guidance on workplace investigations

    A controversial lower-court ruling that ordered a Montreal lawyer to pay moral damages to a college teacher for pain and suffering after an investigation she had headed into psychological harassment complaints breached the duty of procedural fairness was overturned by the Quebec Court of Appeal in a precedent-setting ruling that provides guidance on workplace investigations.

    In a closely-watched ruling by the business and legal community, the Quebec Court of Appeal held that workplace investigations are “intrinsically linked to an employer’s exercise of power in matters of management and discipline,” and therefore do not have to abide by the same procedural fairness standards applied in administrative law.

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  • Confidentiality breach proves expensive for federal government

    The federal government and two employees who worked for an Employee Assistance Program were ordered to pay nearly $175,000 for breaching the rights of an employee who sought their assistance in a case that underlines the importance for employers and personnel to safeguard confidential information.

    “Employers must draw lessons from this ruling on how to deal with confidential and private information of employees,” said Sébastien Lorquet, a labour and employment lawyer with Fasken Martineau DuMoulin LLP. “They must understand that if confidential and private information is disclosed and that it causes harm to an employee, then employers and employees at fault can be held liable for damages incurred by the employee who suffered harm.”

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  • Reforms proposed by Quebec Bar to regulate medical experts

    A “major reform” proposed by the Quebec Bar Association and the physician’s provincial professional corporation to regulate medical expert witnesses intends to curb expert bias, eliminate the professional “career expert,” provide new medico-legal training for doctors while in medical school, and create a new quality assurance program to enforce new guidelines, beginning with the notion of who is an expert.

    The reforms, outlined in a 23-page joint report by the Barreau du Québec and the Collège des Médecins du Québec, are largely viewed by the legal and medical community as a “step in the right direction” and is widely expected to improve the quality of reports and testimony issued by medical experts before the courts.

    “The report establishes a framework to ensure that medical experts work within norms to improve the quality of their work,” observed Robert-Jean Chénier, who was consulted by the working group and is the lead partner of the medical law practice in the Québec region for McCarthy Tétrault LLP. “We have to continue to be more demanding of the opinions issued by experts, and better regulate them.”

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  • Five insurance companies to pay $4.1 million to a bailiff’s firm

    The Quebec Court of Appeal ordered five insurance companies to pay approximately $4.1 million to a bailiff’s firm after it refused to cover its losses and legal fees in a case that clarifies when professional indemnity claims can be triggered and reiterates yet again the principle that lawyers should not have two masters.

    In a dense and complex 30-page ruling dealing with an insurance claim arising out a “very complicated and very unusual underlying facts,” the Quebec Court of Appeal maintained its trend of broadly interpreting claims and professional liability insurance policies in favour of claimants, according to insurance lawyer experts.

    “In the most general way, this ruling is part of a trend that gives rights to the insured,” observed Valérie Lemaire, an insurance lawyer with Langlois Kronström Desjardins LLP in Montreal. “Is it to the detriment of insurers? I don’t think so. Insurers are being asked to analyze its policies in the most liberal fashion possible. It invites insures to be very transparent with its insured.”

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  • Request for recusal highlights need for judicial guidelines over social media

    A Quebec judge who was asked by defence lawyers to recuse herself from presiding over a multi-defendant drug trial because many of her “friends” on Facebook are Crown prosecutors highlights the need for a comprehensive guideline to help judges navigate the world of social media and developing technologies, assert legal observers. (more…)

  • University research group ushering justice system into digital age

    An online dispute resolution pilot project to resolve small claims court cases is scheduled to be launched this fall by the Quebec government thanks to efforts by a university research group that wants to usher the justice system into the digital age.

    The alternative dispute resolution open source and interoperable software program is the latest innovative offering developed by the University of Montreal’s Cyberjustice Laboratory, a unique and world-class research organization that strives to put information technology at the service of the judicial system in order to make it more accessible, more efficient and more affordable.

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  • Dementia creeping into the legal profession

    Dementia is beginning to creep into the legal profession in the same insidious manner it does in the lives of people, sneaking in and leaving hints before constraining regulators and law firms alike to make heart-wrenching decisions. The Barreau du Québec’s disciplinary committee had to deal with the issue last year when it had to decide the professional fate of a Montreal lawyer with more than fifty years of experience. The lawyer, diagnosed with Alzheimer’s three years ago, faced three counts of breaching the Code of ethics of advocates and the Professional Code. “Perhaps Alzheimer’s disease explains (his) conduct,” wrote the three-chair disciplinary council. “It seems clear that the Council must take that into account when sanctioning him.” Though found guilty, all charges were stayed. The Law Society of Upper Canada’s hearing panel was put in a similar bind early this year when it allowed a Toronto lawyer afflicted with the mind-robbing disease to surrender his licence to practice law.

    These heartrending scenarios will likely play out more frequently in coming years. Almost 15 per cent of Canadians over the age of 65 are living with cognitive impairment, including dementia, according to a 2012 study by the Alzheimer Society of Canada. The risk for dementia, a catch-all phrase that refers to a variety of brain disorders, doubles every five years after the age of 65. With the profession greying and more and more senior lawyers putting off retirement, it is becoming clear that the legal profession is going to have to come to grips with the sensitive issue of age-related cognitive impairment. “It is high time given the ageing of the population that we all begin to look at this very carefully,” says Tim Daley, past president of the Nova Scotia Barristers’ Society.

    Dementia

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  • Amount of legal fees no longer necessarily protected by solicitor-client privilege

    The amount of legal fees paid to lawyers is no longer automatically deemed to be protected by solicitor-client privilege following a recent ruling by the Court of Quebec that appears to be in conflict with guidance given earlier this year by the Quebec Court of Appeal, according to some legal observers.

    In a ruling that will be the subject of a judicial review by Quebec Superior Court, Justice Diane Quenneville held that while billings are prime facie protected by professional secrecy because it generally contains a description of accomplished tasks, services rendered and often advice given, the amount of legal fees paid to a lawyer is not necessarily protected by professional secrecy.

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  • Bitcoin’s promise lies under the hood

    When Jillian Friedman completed her articling at McMillan LLP at the end of last year, the young Montreal lawyer attended by fortuitous happenstance a presentation at a networking event on Bitcoins, a controversial and extremely volatile virtual currency that exists only digitally, as computer code. Friedman, unshaken by the scandals and sordid headlines that has rocked the nascent Internet currency over the past year, was hooked, enticed by the notion of becoming a crypto-currency legal expert.

    She is on her way. Heeding the advice of her mentors, Friedman is cultivating a clientele of bitcoin startups, a sector that allows her to share her knowledge and brief legal experience in financial services and general commercial law to an industry pushing for mainstream recognition. She has since become one of a handful of Canadian lawyers who has accepted payments in bitcoins, though she does not hold it in trust. “I would love for the legal community in Canada to understand that bitcoin is not some sketchy digital currency that is used to launder money – it is much more than that,” said Friedman, who is counsel to Bitcoin Embassy, a Montreal non-profit profit corporation founded to promote the adoption of Bitcoin and related crypto-technologies.

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  • Quebec tax authorities chastised for expecting business to act as “tax police”

    The Tax Court of Canada, in yet another legal blow to Quebec’s tax authorities, chastised Revenue Quebec for expecting business to act as a “taxation police” after it withheld input tax credits from a meat processing company because it ostensibly had not been diligent in its dealings with its suppliers.

    The precedent-setting ruling, the third to harshly castigate the Quebec taxman in recent months, found that nothing in the Excise Tax Act (ETA) allows tax authorities to hold a company liable for the tax delinquencies of its suppliers. In uncharacteristically blunt language, Justice Alain Tardif noted that it would be unreasonable to expect business to perform complete background checks on all its suppliers, especially since legislation grants tax authorities large powers to investigate and demand information.

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  • Quebec legal developments to watch in 2014

    Law will play a role in shaping events in Quebec this year, and perhaps for years to come.

    The Charbonneau Commission’s inquiry into the construction industry has just resumed its public hearings, and more of the same is expected. Embarrassing and indecent revelations have come to light that politicians and professionals, and organized crime and major and the construction industry have subverted all things democratic. Two well-known mayors face criminal charges, one of whom stands accused of gangsterism, a law designed to thwart organized crime.

    The probe will continue to study organized crime in the construction industry this month before moving on to other topics of interest, which have yet to be revealed. The Charbonneau Commission must submit an interim report to the Quebec government by the end of January 2014, and a final report is expected by April 2015.

    The Supreme Court of Canada has begun to hear an unusual case that may reinvigorate the Quebec sovereignist movement. It will have to decide whether a judge who joined its ranks was lawfully appointed. Prime Minister Stephen Harper chose semi-retired Justice Marc Nadon, a Federal Court of Appeal judge, to fill one of the three places on the bench held for Quebec. According to Section 6 of the Supreme Court Act, judges “shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” The nation’s highest court will have to determine whether a justice who served at the Federal Court is allowed to be a part of the country’s most senior bench. It will also have to determine whether federal government can unilaterally make changes to the appointment process as it did through the passage of the budget bill, C-4, or whether this requires a constitutional change needing provincial approval.

    “It’s very sad for the institution,” remarked Hugo Cyr, a law professor at the Université de Québec à Montréal. “It politicizes a process that shouldn’t be politicized. As soon as the process of appointment puts in question the legitimacy of one of the judges, it weakens the entire institution. That institution is the institution in our political system that is meant to be above political disputes.”

    Also in the agenda is the Parti Québécois’ government divisive secular charter bill. A National Assembly committee has begun hearings on the bill, which will prohibit public servants from wearing overt religious symbols such as the hijab, kippa or crucifix. The bill has deeply divided Quebecers, and will likely set off another round of heated debates over freedom of conscience and religion, and gender equality.

    Though largely unnoticed by the public, a new Code of Civil Procedure will likely have a dramatic impact on the Quebec justice system. A decade after reforming the Code of Civil Procedure based on the principle of proportionality, Quebec intends to overhaul it once again in order to establish a more rapid, more efficient and less costly civil justice that would improve access to justice and increase public confidence in the justice system. In an effort lauded by the legal community, the new Code aims to modernize and streamline the pre-trial process, trials and appeals, using collaboration along with proportionality as its guiding principle. The new Code imposes parties a positive obligation to cooperate and communicate in completing the court record, and grants courts broad and extensive case management power. It also obliges parties to “consider” recourse to private modes of dispute prevention and resolution before referring disputes to the courts. In this vein, the bill codifies the rules around mediation, reforms the rules applicable to arbitration, and provides specific measures for international arbitration. It is expected to be passed this year.

    Also in the making is the first foray into the digital age by Quebec courts. An online dispute resolution pilot project to resolve small claims court cases is scheduled to be launched this fall by the Quebec government.

  • Quebec Court of Appeal provides guidance over Anton Piller orders

    Litigants who obtain evidence seized through Anton Piller orders, an extraordinary legal measure granted in exceptional circumstances, do not have an “automatic” right to review the material, according to a recent ruling by the Quebec Court of Appeal.

    Anton Piller orders, described by the Supreme Court of Canada as a “draconian” measure, are civil search warrants that allow one party (accompanied by a bailiff and independent supervising lawyer) to launch a surprise raid on the business premises or homes of people when there is good reason to believe that one party to a lawsuit is in possession of documents or material that could be concealed or destroyed. It is considered by legal observers to be an intrusive and powerful legal remedy because no notice is given to the party against whom it is issued. Indeed, defendants only find out about the existence of the order when they are served and executed.

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Law in Quebec
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