The McGill University Health Centre was ordered by small claims court to pay $15,000 to the parents of a 33-year-old man who died from complications associated with a diabetic coma while undergoing chemotherapy. (more…)
Quebec
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Salary hike for provincial court judges
A day after the Quebec Minister of Justice suffered a stinging setback following a Superior Court decision that held that the Chief Justice of the Court of Quebec can require bilingualism in the judicial appointment process, even against the wishes of the minister, the Quebec government begrudgingly gave the green light to increase the salary of provincial court judges.
The Quebec executive and the judiciary have not seen eye-to-eye since Justice Minister Simon Jolin-Barette maintained last spring that bilingualism was not a prequisite to be appointed to the Court of Quebec, a position diametrically opposed by Chief Justice Louise Rondeau. Tensions between the two branches of power were further exarcerbated last fall over competing visions on how to deal with domestic and sexual violence cases.
In a 55-page ruling, Quebec Superior Court Justice Christian Immer ruled that the minister had no say on how magistrates set the professional and linguistic requirements of provincial judges.
A day later the Quebec government issued a 27-page report that stated it intends to approve a significant salary hike to provincial judges after a five member blue-ribbon panel of legal and financial experts recommended boosting the renumeration of Court of Quebec judges from the current $255,000 to $310,000 by July 2022, which would make them the third best paid provincially appointed judges, behind Ontario and Saskatchewan.
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Notary found guilty of misappropriation
A Quebec notary with drug problems and in financial straits was found guilty of misappropriating more than $50,000 from a client by a disciplinary committee, the eighth case heard by disciplinary councils over the past year dealing with pilfering by legal professionals, something that has been described as the profession’s dirty little secret.
Daniel Girouard, who was admitted to the Chambre des notaires in 1986, was found guilty of breaching articles 1, 13, and 56 (7) of the Code of ethics of notaries — of failing to act with dignity, abiding by the strictest rules of integrity, and misappropriation. Girouard misappropriated $59,250 held in his trust account, and used it to pay his drug debts.
In an email to an investigator, Girouard said:
“I know anyway that I will be struck off. I am addressing you in order to minimise the misery of the parties in this case. As for the consequences for me vis-à-vis the Chamber and the tax authorities, I take responsibility.”
The disciplinary committee will determine his sanction at a later date. But it’s moot. Girouard has resigned.
The victim was reimbursed by the professional corporation’s indemnity fund.
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Court deems COVID-19 measures a “misfortune”
COVID-19 is still wreaking havoc on people’s lives.
But it’s heartwarming to see that the courts are taking into account hardship.
In a brief bankruptcy ruling in Syndic de Deutsch, 2022 QCCS 222, Quebec Superior Court held that:
[14] There is no doubt that the measures put in place by the federal and provincial governments are a “misfortune” (“un malheur”) and the Court must consider even sua sponte the application of Article 175 of the Bankruptcy and Insolvency Act for bankruptcies filed after March 2020.
[15] In this particular case, the requirements of Article 175 of the Bankruptcy and Insolvency Act are not met however I consider the economical context.
[16] Neither the Superintendent of Bankruptcy nor any creditors have opposed the discharge of the Bankrupt.
[14] The bankruptcy and Insolvency Act’s objective is the social and economical rehabilitation of an honest but unlucky debtor and I hereby grant Ms. Irit Deutsch an Absolute Discharge from her bankruptcy. (my emphasis).
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Religious corporation loses battle over perpetual contracts
In 1945 a religious corporation acquired from the City of Sherbrooke a piece of land, adjoined to a property it already owned, to provide a resting place for weary nuns, or “religieuses fatiguées.”
It paid $200. But the contract includes a clause by which the City obtains the privilege to repurchase the land at the price sold in the event that the religious outfit decides to resell it.
Les Filles de la Charité du Sacré-Coeur-de-Jésus launched an action to have the right of pre-emption be declared null and void or, in the alternative, that a time limit be set for its lapse.
The Quebec Court of Appeal dismissed the appeal. Heeding guidance by the Supreme Court in Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, the Appeal Court reaffirmed that the only perpetual contracts that are invalid as contrary to public policy are those where perpetuity “undermines” fundamental values of society.
“It is true that the appellant cannot freely dispose of this land, since it must allow the respondent to buy it if it decides to sell it, but this is not shocking,” said the Appeal Court in Filles de la Charité du Sacré-Coeur-de-Jésus c. Ville de Sherbrooke, 2022 QCCA 112.
“The appellant has, to date, used the land in the manner it intended at the time of purchase and can continue to do so since it is only if it decides to sell it that it will have to allow the respondent to buy it back. It is true that this limits one of the components of her right of ownership, in this case abusus, but this limit does not undermine a fundamental value of society, especially since many other dismemberments of the right of ownership are authorized in Quebec law.”
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Insurer loses battle against Quebec tax authorities
Insurers are required to collect tax on insurance premiums, and remit it to the provincial government, within a certain allotted time.
When clients sent a cheque or made an electronic payment to pay their premiums before it was due on the effective date of the policy, one insurer accepted the sums as soon they were received but did not yet remit to the tax authorities because the policy was not yet in force.
The Quebec Court of Appeal nixed that practice.
The insurer, as per s. 527 of the Act respecting the Québec sales tax (Act), must in its capacity as agent account for the tax collected in the preceding calendar month at the end of the month, held the Appeal Court in Agence du revenu du Québec c. Assurances générales Desjardins inc., 2022 QCCA 57. Whether or not the premium is due does not change the fact that the insurer has collected the amount of tax on insurance premium paid by the insured and must therefore remit it to the Minister, added the Appeal Court.
“There is no doubt that, where the premium is paid on the day the contract comes into force, the tax on insurance premiums collected must be remitted to the Minister in accordance with the terms of section 527 of the Act.
“The issue at stake here is that the customer voluntarily fulfills his obligation, the payment of the amount corresponding to the premium, which includes the tax on insurance premiums, before the arrival of the suspensive term agreed between the parties and that the (insurer) collect this amount although they are technically not yet entitled to it.”
On top of that, under article 2398 Civil Code, this contract is formed as soon as the application is accepted by the insurer, even if it takes effect at a later date, added the Appeal Court. The enforceability of the reciprocal obligations of the parties is then simply suspended until the date fixed, concluded the Appeal Court.
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Quebec’s vaping legislation upheld by Appeal Court
The Quebec Court of Appeal overturned parts of a lower court ruling that struck down certain provisions of the provincial Tobacco Control Act and upheld the constitutionality and right of the province to apply its tough and comprehensive tobacco legislation on e-cigarettes, including robust restrictions on vaping advertising. (more…)
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Quebec announces pilot projects for domestic and sexual violence specialized tribunal
The Quebec government is forging ahead with the deployment of a series of specialized sexual and domestic violence court pilot projects in spite of forceful opposition by the Chief Justice of the Court of Quebec, the tribunal that will manage and operate the new endeavour.
The Quebec government is launching five pilot projects in Quebec City, and the regions of Montérégie, Centre-du-Québec and Mauricie. The government selected districts based on a number of criteria, including “territorial and population realities”, the size of courthouses, the presence of community agencies working on sexual and domestic violence, and the presence of Aboriginal communities.
“The pilot projects will help to develop best practice and also to assess the impact of our specialised court model in different contexts,” said Quebec Minister of Justice Simon Jolin-Barrette in a press release.
Bill 92, An Act to create a court specialized in sexual violence and domestic violence and respecting training of judges in these matters, was unanimously adopted by the Quebec National Assembly in November 2022.
Bill 92, widely lauded by by family law experts and advocates against family and sexual violence, follows recommendations made by a report penned by former Court of Quebec Chief Justice Élizabeth Corte and Université Laval law professor Julie Desrosiers. The report, entitled “Rebuilding Trust,” called for a specialized tribunal that would take a different approach to deal with such cases.
Judicial institutions, such as specialized police units and specially trained teams of jurists, would work in tandem with social and community services to foster a victim-centered approach, without compromising the tenets of fundamental justice, told me Corte.
But current Chief Justice Louise Rondeau wants no part of the initiative. Instead, Justice Rondeau announced last fall the creation of a new divisional court dealing with conjugal and sexual complaints that is expected to be deployed early 2022.
“All these organizations do not fall under the jurisdiction of the Court,” said Justice Rondeau. “One must veer away from this perception that is emerging in society of a specialized tribunal that may have links with the way that police intervene, with the way that the Crown organizes the work of its prosecutors, with the way that community organizations provide psycho-social assistance. These measures have nothing to do with the courts. The Court is a different organization, independent.”
The government did not however announce when the pilot projects will be launched.
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Anti-vaxxer mom loses bid to prevent her kids from being vaccinated
An anti-vaxxer mother who believes that the COVID-19 vaccine may contain electronic chips, heavy metals and aborted fetal cells lost her bid to prevent her two children from being vaccinated.
In the latest of a growing number of COVID-related cases dealt by the courts, Quebec Superior Court Justice Steve Reimnitz withdrew the woman’s parental authority in health matters of her nine and fourteen-year old kids. (more…)
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$115,000 in damages awarded to victim of wrongful arrest
Three police officers and the City of Montreal were jointly and severally ordered by Quebec Superior Court to pay a Montrealer $115,000 in damages following a wrongful arrest that occurred more than nine years ago. (more…) -
Mixed reaction over Quebec’s proposed youth protection reform
The Quebec government, following up on a report that cast a critical eye on the province’s youth protection system, has tabled a proposed legislative reform that underlines and clarifies the notion of the best interests of the child as well as introduces new provisions to take into account the historical, social and cultural factors of Indigenous people.
The reform will also relax strict confidentiality provisions that have hampered communication between frontline workers and other healthcare professionals, reaffirms that children must be represented by an advocate, and entrusts the newly created position of National Director of Youth Protection with the responsibility of determining policy directions and practice standards, buttressed with the power to implement “corrective” measures.
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Questions remain over Quebec’s GPS electronic tracking project for domestic violence offenders
Barely a month after a Quebec coroner recommended that people convicted of murdering their partners be compelled to wear electronic tracking devices when released from prison, the provincial government announced that some conjugal violence offenders could be ordered to wear tracking bracelets beginning next spring.
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Justiciability a major hurdle for climate change lawsuits, assert legal experts
A proposed climate change class action suit by a Montreal environment group against the federal government was denied certification by the Quebec Court of Appeal after it held that it was not justiciable, the latest in a series of climate change litigation cases that have been thwarted by the justiciability doctrine, prompting questions over the successful viability of using broadly framed Charter arguments in climate justice suits in Canada. -
Quebec appeal court serves timely reminder over linguistic rights
Less than a year after delivering a stinging rebuke to the Quebec government over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants, the Quebec Court of Appeal served a timely reminder over the importance of linguistic rights after it ordered a new trial for a convicted drug trafficker whose right to be tried in English was violated.
The decision, brimming with practical guidance aimed particularly at trial judges and Crown prosecutors, reiterates that courts that hold criminal trials “must be institutionally bilingual,” restates that it strongly favours consecutive translation over simultaneous interpretation in criminal trials, and prohibits so-called whispering interpretation from being practiced as it is “inconsistent” with s. 530.1(g) of the Criminal Code and guidance issued by the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951.
“This is a timely decision,” noted Martine Valois, a law professor at the Université de Montréal who wrote a book on judicial independence. “This is a problem, and it does no service to the accused or the justice system. This is not a political and linguistic issue, and it has nothing to do with the French fact in Quebec or the survival of French language. It’s really an issue over the rights of the accused (and ensuring that the) justice system be institutionally bilingual.”
The ruling also underscores yet again that the Quebec justice system is plagued by a systemic lack of resources, added Quebec City criminal lawyer Julien Grégoire of Gagnon & Associés, avocats.
“It’s very difficult to understand how, five years after the Jordan decision, we in Quebec can still find ourselves in this situation,” said Grégoire. “A major drug trafficker was granted, unfortunately but fittingly as far as I am concerned, a new trial to basically allow him to have access to fair justice in the language of his choice and in a process that minimally but truly respects his right to a trial in the language he understands best.”
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New Quebec family bill raises troubling issues
A controversial Quebec bill that would amend the Civil Code and family law has been lauded for creating a legal framework for the use of surrogate mothers but has been slammed for scaling back trans rights and possibly opening the door to a divisive debate over the rights of a foetus.
