Law in Quebec

News about Quebec legal developments

Access to justice

  • Independence of Quebec administrative judges in question, says report

    An absence of clear rules in the nomination process of Quebec administrative tribunal adjudicators allows for partisan influence, compromises their independence, potentially raises questions over their impartiality, and casts doubt over the integrity of a system that directly or indirectly affects all Quebecers, according to a recently published report that calls for a common, uniform regime that would apply to all adjudicators.

    Unlike some other provinces such as Alberta and Ontario, Quebec does not have a unified regime to appoint adjudicators, validate appointee qualifications, and guarantee independence from government, reveals the 375-page report. Under the current legal framework, nine out of 15 Quebec administrative tribunals are not required under law to appoint adjudicators with special qualifications and nor are they bound by selection criteria, notes the study. There is also an absence of uniformity in working conditions, compensation, and standards of ethics for adjudicators. The length of their mandates, which varies from three to five years, also suffers from a lack of homogeneity.

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  • Code of Civil Procedure being overhauled

    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, Bill 28 aims to modernize and streamline the pre-trial process, trials and appeals, using collaboration along with proportionality as its guiding principle.

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  • Appeal court provides guidance on contempt of court

    The use of contempt of court in civil proceedings will likely diminish over time as judges begin to exercise discretionary powers to redress abuse of process under legislation originally designed to thwart SLAPPs, or strategic lawsuits against public participation, observed the Quebec Court of Appeal.

    Contempt of court, an exceptional remedy given its quasi-criminal character and potentially grave sanctions, should be used sparingly and as a “last resort,” particularly since more suitable civil sanctions exist such as running the risk of losing the case on the grounds of abuse of process, dismissal of claims, the striking of allegations to institute proceedings, or even the possible forfeiture of funds held in deposit, advised the appeal court in a 24-page ruling.

    “Viewing contempt as a last resort where there is an alternative remedy, better-tailored to the context, has the further advantage of reserving contempt for those cases of egregious behaviour that genuinely threaten the authority of the courts and merit the strong medicine of the quasi-criminal contempt sanction,” said Justice Nicholas Kasirer in a unanimous ruling.

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  • Pendulum swings back in favour of issuers in securities class actions

    Nearly a year after a handful of decisions seemingly leaned towards a permissive approach in securities class actions for misrepresentations in public disclosure, the pendulum seems to have swung back after a couple of recent court decisions tilted in favour of issuers.

    In a 163-page ruling Justice George Strathy of the Ontario Superior Court this week dismissed a secondary market securities class action against CIBC because the plaintiffs had failed to obtain the required leave to proceed with the action within the three-year period mandated by the Ontario Securities Act (OSA). Justice Strathy pointed out that he would have certified the action and allowed it to proceed to trial if he had not found the limitation period had expired.

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  • Open data: The value of openness

    When Bing Thom Architects set out to investigate the effects of rising sea levels in Vancouver, the firm decided to gather crucial information about the shoreline from the city’s open data web portal. The study ultimately painted a sobering view of the potential impact of climate change: more than $25-billion in Vancouver real estate would be “negatively affected” by a rise in the sea level in the 21st century, excluding infrastructure such as roads, sewers, and electrical facilities. But the research also underscored the value of open government data: information that is collected by government for its own purpose and made available to the public for its own use.

    Open data is essentially information that is free for anyone to use, reuse and redistribute. Proponents of making government data available to the public identify two main benefits: First, innovators of all kinds can use the information to build useful applications and services, and second, it promotes government transparency and accountability and encourages citizen participation in public policy debates. As Andy Yan, the urban planner involved in the Vancouver project observes, “when you have this type of transparency and governments release their databases to the public, you can have these kinds of discussions about public policy out in the open instead of being captured in little clubhouses.”

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  • Class actions seemingly alive and well in Quebec

    Class actions appear to be thriving in Quebec. A series of suits launched recently seem to enhance the province’s reputation as a have for class action suits. But that may be illusory.

    Yesterday FTQ-Construction, the largest construction union in Quebec, was slapped with a class action following an illegal strike that paralyzed much of the industry in late October.

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  • Quebec Auditor General report questions usage of courthouses

    More than a year after the Quebec auditor general revealed that courthouses in the province are underused and that the provincial ministry of justice fails to analyze readily available administrative and financial data that would help it become more efficient and cost-effective, the justice department is tightlipped over what, if any, progress it has made to remedy the situation.

    Already under fire for its handling of the labour conflict with its Crown prosecutors and government lawyers and castigated by the Quebec law society for failing to provide sufficient judicial resources, legal observers are urging the Quebec government to address the findings made by the auditor general.

    “The Ministry of Justice has not adopted a set of indicators that would help it evaluate the performance of the system as is the case elsewhere in Canada,” observed Gilles Ouimet, the head of the Barreau du Quebec. “It would be beneficial to heed the auditor general’s recommendations.” (more…)

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  • New indemnity fund proposed following out-of-court settlement in Norbourg class-action

    Days after an agreement in principle was reached in the Norbourg class action suit, opening the door for thousands of investors to recover nearly all the money they lost in one of the biggest investment frauds in the country, questions surrounding the efficacy and scope of investor protection provided by the debt-ridden indemnity fund overseen by Quebec’s financial watchdog have surfaced.

    A group of investor advocates, financial professionals, and the body that oversees financial professionals in Quebec are beckoning the provincial government to cast a critical eye on the financial services compensation fund administered by the Autorité des marchés financiers (AMF), a call that Quebec Finance Minister Raymond Bachand seems to have heard. The finance minister recently requested the securities regulator to “see if something different should be put in place, how it should be done, while listening to industry.”

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  • Few number of claimants prompts questions over class actions

    Nearly three decades after class actions made their first appearance in the Canadian legal landscape, little light has been shed over the proportion of class members who make a claim, which hasn’t stopped some from speculating that the numbers are so low that they call into question the need for class proceedings.

    “Where there is money set aside for individual plaintiffs and they have to apply for the funds, anybody who did the research would find that there’s very little uptake and the funds that are unapplied for are given to charitable organizations,” asserts William Vanveen, a former assistant law professor at the University of Windsor’s faculty of law, now a partner with Gowling Lafleur Henderson LLP in Ottawa. “The lack of application for relief to the funds by directly affected plaintiffs indicates to me that there isn’t a great social need for these actions.”

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  • Norbourg: Law firms seeking $11 million

    A couple of days after an agreement in principle was reached in the Norbourg class action suit, allowing thousands of investors to recover nearly all the money they lost in one of the biggest investment frauds in the country, a lawyer warned me that the case was far from over.

    That’s because the $55 million settlement against Quebec’s securities regulator, Northern Trust Co. of Canada, Concentra Trust, accountant Rémi Deschambault and accounting firms KPMG LLP and Beaulieu Deschambault did not cover legal fees. “The judge in the case has opened a can of worms,” told me the class action specialist. “It’s unheard of to reach a settlement without agreeing to the legal fees.”

    The lawyer is right. The law firms that negotiated the settlement are seeking $11-million, representing 20 per cent of the $55-million settlement, in legal fees — and the victims are not happy. Three Norbourg victims are expected to be in court today arguing that the amount is far too much, with one saying that lawyers should be receiving up to five per cent while another asserting that 6.5 per cent is reasonable. “It’s disproportionate,” said François Leblanc, an industrial relations consultant whose family lost hundreds of thousands of dollars in the Norbourg scandal. “In my opinion, 6.5 per cent of the settlement is a reasonable remuneration. They’re calculating $400 an hour, which would give them salaries of $700,000 a year.”

    Quebec Superior Court justice André Prévost is expected to render a decision by month end. “I am conscious that the Norbourg investors have lived through difficult times,” said the judge yesterday. “The conclusion is approaching.”

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  • Anti-SLAPP: Will Ontario follow Quebec’s lead?

    A free-standing statute with focused remedies such as an expedited review process and a statutory recognition of qualified privilege anchor a series of comprehensive recommendations made by a blue-ribbon panel of legal experts who are calling on the Ontario government to enact legislation to crack down on strategic lawsuits against public participation, otherwise known as SLAPPs.

    In the wake of rising concerns over the growing use of litigation to silence critics who speak out on matters of public concern, notably in environmental disputes, the advisory panel appointed by the Attorney General of Ontario recommends new legislation, distinct from existing rules, that would “help to encourage” courts to apply remedies to protect expression on matters of public interest from undue interference.

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  • Plain language making inroads in Quebec

    In what appears to be a clear sign that the Quebec legal profession has begun to embrace the plain language movement, a guide aimed at lawyers written and published by the Barreau du Québec has proven to be so popular that the law society ran out of copies two days after making it available. (more…)

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  • Growing trend of unrepresented litigants is disturbing, says judge

    The surging number of unrepresented litigants trying to navigate the complex demands of law and procedure may leave legislators with little choice but to review and enact simplified rules of practice to make justice more accessible, said the chief justice of Quebec’s Superior Court at a conference examining the disturbing trend.

    The figures are alarming, with an average of 37 per cent of parties representing themselves in civil matters before Quebec Superior Court, revealed Judge François Rolland. In divorce cases before Quebec Superior Court, 36 per cent of Quebecers are unrepresented litigants, a figure that rises to 42.1 per cent in family matters dealing with child custody and separation. Almost 42 per cent of parties appealing a sentence in criminal matters before Quebec Superior Court are unrepresented litigants while 38.8 per cent of individuals facing a motion that could authorize their psychiatric treatment do not have legal representation, prompting Justice Rolland to remark that if anybody “should be represented it seems to me it’s the treatment cases.”

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  • Appeal for broader access to legal aid snubbed

    A call by the Barreau du Québec to broaden access to legal aid by relaxing financial eligibility thresholds was quickly dismissed by Quebec Justice Minister Jean-Marc Fournier who declared that the provincial government can’t afford to inject more monies into the province’s government-funded legal aid program.

    Before considering reforms, the Quebec government intends to see through a five-year plan launched in 2005 that confers annual indexation coupled with marginal increases of legal aid eligibility thresholds, added Fournier, who articled at a Montreal legal aid office in 1982.

    “There are always requests for increased government assistance but that must be balanced with the capacity of the State and its citizens to pay,” said Fournier at a scrum shortly after the Barreau summoned the government to enact legal aid reforms. “So for the time being we are going to apply the play adopted five years ago.”

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  • Law society urges improvements for people suffering from mental illness

    The figures are disturbing. Barely five per cent of individuals facing a motion ordering their psychiatric confinement were represented by a lawyer before the Court of Quebec in the small town of Alma in the Saguenay–Lac-Saint-Jean region. In neighbouring Chicoutimi, the figures over a ten-year stretch between 1998 and 2008 were just as appalling. The situation was not much better in Montreal, with less than 25 per cent of individuals facing the same fate even present at such hearings, and of those scarcely half had legal representation.

    Spurred by the wrongful conviction of an intellectually disabled Quebec City man who served six years in prison after confessing to a series of sexual assaults that a DNA test proved he did not commit, a sober report penned by a nine-member committee of the Barreau du Québec issued a slew of recommendations to improve the way the provincial justice system deals with people afflicted with mental illness or suffering from intellectual disabilities.

    “We must absolutely find ways to treat people with mental illness or the intellectually handicapped just like every other citizen,” remarked Jean-Pierre Ménard, a Montreal lawyer specializing in health and medical liability who was part of the committee. “People who are afflicted with mental health problems face atypical legal procedures that infringe fundamental rights. So it is unacceptable that the justice system allows these people to be treated without the right to defend their rights.” (more…)

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Law in Quebec
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