A lawsuit by the Quebec and Montreal Bars to compel the Quebec government to implement measures to ensure the legal equivalence of the French and English-language versions of Quebec statutes was quietly settled out of court.
Quebec
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Quebec appeal court rules woman wearing hijab was entitled to be heard in court
A day after Quebec premier-elect François Legault suggested he would be ready to invoke the Constitution’s notwithstanding clause to override the Charter of Rights and Freedoms to ban religious symbols for civil servants, the Quebec Court of Appeal court ruled that a provincial court judge erred when she denied a hearing to a woman wearing a hijab.
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Quebec lawyers and notaries lose battle against title insurers
American-based title insurers do not practise law or provide legal opinions when drawing up, registering and discharging refinanced mortgages, the Quebec Court of Appeal held in a legal battle that pitted the insurers against the governing bodies of the Quebec legal and notary professions.Tags: title insurance -
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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Troll sentenced to prison for inciting hate online following Quebec City mosque massacre
A troubled young Quebec City man who incited hate against Arabs by writing unapologetically “cruel and racist” rantings on social media hours after six people were shot dead and five wounded at a mosque in Quebec City in 2017 was sentenced to 60 days in prison.
The 20-year old arborist, who pled guilty, blamed his drug-induced intoxicated state for his online racist comments. He testified that he consumed cocaine, ketamine and MDMA at a rave. He also admitted during trial that he was “a bit racist” but was willing to make a public apology and make a donation in exchange for an absolute discharge.
Court of Quebec Judge Mario Tremblay would have none of it. The comments were heinous, issued at a time when victims, the Arab community and society were coping with grief, and were made repeatedly, held Judge Tremblay.
“Considering the context in which the comments were made and its contents, the sentence must be sufficiently severe to have a denunciation effect,” said Judge Tremblay in R. c. Huot 2018 QCCQ 4650. “The accused has no excuse. He made these comments repeatedly” during three days.
But Judge Tremblay made it plain that the accused was not sentenced because he still holds racist thoughts. Rather his deeply held personal views “wipe out the possibility” that his excuses are sincere and he failed to demonstrate a genuine awareness and recognition of the harm done to Arab community and society at large, added Judge Tremblay.
Echoing remarks made more than a decade ago in R. c. Presseault, 2007 QCCQ 384 by then Court of Quebec Judge Martin Vauclair, now a Quebec Court of Appeal Justice, Judge Tremblay lamented that he could not impose a stiffer sentence because of “choices made by the legislator.” The maximum sentence for inciting hate is two years imprisonment.
“The consequences associated with such remarks are latent, pernicious and could have an explosive impact on a fragile person susceptible of committing an illegal act,” concluded Judge Tremblay.
The arborist, the third person to be charged for inciting hate crimes following the Quebec City mosque shooting, will serve his sentence intermittently, on weekends.
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Quebec’s plans to block unlicensed gaming sites ruled unconstitutional
The Quebec government took a gamble, and lost.
Under the guise of concern for the health and safety of Quebecers, the provincial government introduced controversial legislation that compelled Internet service providers to block unlicensed gambling websites.
It was a ruse, a move to protect their turf and increase revenues.
So concluded Quebec Superior Court Justice Pierre Nollet who held that Quebec’s effort was unconstitutional because it infringes upon federal jurisdiction on telecommunications and criminal law matters.
The contentious legislation was closely watched by other provinces who have online gaming offerings. Much is at stake. H2 Gambling Capital, a leading supplier of gambling data and market intelligence, predicted that the value of the global online casino and bingo market would surge to approximately US$13.5 billion by 2018, representing a compound annual growth rate of more than 10 per cent from 2014.
Or as renown Montreal gaming lawyer Morden Lazarus told me: “The provinces have decided that they want to get into online gaming and they want to be able to generate these revenues for their own benefit. The Quebec government is leading the charge.”
The decision may have wider implications, according to Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and E-commerce Law. A coalition of companies including broadcasters like the CBC, telecoms (including Bell Canada) and creative groups have asked the federal regulator Canadian Radio-television and Telecommunications Commission (CRTC) to create an agency that blocks websites with illegal content.
But Judge Nollet noted that the 1993 Telecommunications Act enshrines the concept of net neutrality, and requires the CRTC to block sites only under strict circumstances.
“In the Court’s opinion, section 36 (of the Act) does not permit telecommunications companies to modify signals, whether legal or not, except in certain cases provided for in the regulatory policy such as the power to modify the signal to eliminate network threats,” said Judge Nollet in Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159.
The link to network threats is important, said Geist in a blog posting, because “supporters of the Bell site blocking plan (who argue that it does not implicate the net neutrality rules) cite a 2009 CRTC net neutrality decision reference to illicit materials, which they claim could include copyright infringing materials.
“I argue that the reference ‘clearly refers to network threats, not the content of the materials.’ The court in this case agrees with the need for a link to network threats. The illegality of content – whether copyright infringement or online gambling – does not go directly to the security and integrity of the network.”
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Quebec Court of Appeal sanctions judge
A Quebec judge who refused to hear a quarrel between neighbours and emphatically insisted that they negotiate a settlement before adjourning without cause a hearing over which he should have presided the same day has been sanctioned by the Quebec Court of Appeal.The 66-page ruling in Bradley (Re), 2018 QCCA 1145 reveals the need for the Quebec government to increase options available to the appellate court and the Quebec Judicial Council to deal with judicial misconduct of a provincially appointed judge, and for the council itself to enact changes to enhance procedural fairness, according to judicial ethics experts.
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Quebec ombudsman urges province to provide healthcare to Canadian children of parents with precarious immigration status
Nine months ago Amnesty International and Doctors of the World launched a joint petition to request health coverage for children born in Quebec whose parents are beset by a precarious immigration status.
The petition obviously went unheeded.
The Quebec ombudsman too is now calling on the provincial healthcare administrator to cease its “restrictive” and “faulty” interpretation of the Quebec Health Insurance Act and regulations to deny children of parents with a precarious migratory status healthcare coverage even though they are born in Quebec.
“The Quebec Ombudsman considers that the solution lies in applying the Act as written,” said an 18-page report by the Protecteur du Citoyen.
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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. -
Quebec appeal court rebukes trial judge over stereotypical attitudes towards sexual assault
The Quebec Court of Appeal admonished a trial judge who acquitted a father accused of incest for holding biases and stereotypes over the way a sexual assault victim should behave.The appellate court, in a brief but unusually blunt and forceful six-page ruling, ordered a new trial against a father who allegedly assaulted his daughter for a 16-year period, from the age of nine until 25. She came forward in 2010 when she was an adult and while living with her parents.
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Orthopaedic surgeon ordered to pay $100,000 to patient after back surgery
An orthopaedic surgeon was ordered by a Quebec court to pay a Quebec City man $100,000 in non-pecuniary damages after he was found to be at fault for one of three back surgeries he performed on the patient.
Dr. Jean-François Roy, one of a handful of Canadian orthopaedic surgeon capable of performing disk prosthesis’, a procedure that is less popular than spinal (vertebrae) fusions, was sued by Daniel Tremblay, a fifty-something entrepreneur, and his wife sued for $2.2 million for three back surgeries he carried out. Tremblay, afflicted with back pain since 2003, alleges that he suffered harm because of the surgeries.
But in a 35-page ruling that highlights the challenges patients face when launching a medical malpractice suit, Quebec Superior Court Justice Daniel Dumais held that Dr. Jean-François Roy was at fault for only the second surgery he conducted on Tremblay.
Dr. Roy diagnosed Tremblay with spinal stenosis, a narrowing of the spaces within the spine, which can put pressure on the nerves that travel through the spine, and performed a disk prosthesis’ operation on Tremblay on September 2011. Tremblay was told that in approximately 90 per cent of the cases, 50 per cent of patients got better. Some eight per cent though suffered “significant pain.”
Tremblay was one of the unfortunate ones; his disk prosthesis dislocated, the first time that Dr. Roy says he saw this take place. A second surgery was performed a month later: replacing the prosthesis was impossible so Dr. Roy removed the prosthesis and put in its place a stand-alone intervertebral fusion cage. Made from various materials, including metal or carbon graphite fiber, the cage is placed in the inter-body space and packed with bone graft to help stimulate bone growth. But that surgery too failed to provide Tremblay with relief from pain. A third surgery followed suit, with similar results.
A medical malpractice suit generally raises three issues, points out Justice Dumais. First, it must be determined if the medical professional or establishment committed a fault. Second, it must be proven that the medical procedure, professional and/or establishment caused harm. And finally, if fault is proven, the determination of compensation must be evaluated.
“The hoped result was not obtained,” said Justice Dumais in Tremblay c. Roy 2018 QCCS 2486. “The Court agrees. But it is insufficient to conclude that a (medical) intervention was not appropriate. More than one option existed. The one chosen did not work out. That is regrettable.”
But Justice Dumais held that Dr. Roy should have been more diligent when he performed the second surgery on a patient. The disk prosthesis, which was implemented in the first surgery, dislocated for reasons unknown. That revealed a problem. And Dr. Roy should have done more to figure out what was the cause of the dislocation, added Justice Dumais. He could have consulted with another colleague, sought advice, conduct further tests, or reach out to the manufacturers who produce the medical devices. “None of this was done,” found Justice Dumais. “The Court finds that there was a fault in the preparation and execution of the second surgery.”
The award granted to Tremblay falls in line with jurisprudence. A 2013 book entitled After the Error: Speaking Out About Patient Safety to Save Lives reveals the daunting odds patients face to win a medical malpractice suit in Canada. Slightly more than 4,500 lawsuits were filed against Canadian doctors from 2005 to 2010, reveals the book. Of those, nearly 3,100 were dismissed or abandoned “because the court dismissed the claim or the victim or the victim’s family quit, ran out of money or died before trial.” Out of 521 cases that went to trial, only 116 led to a judgment that favoured the patient, with the median damage awarded $117,000.
More recently still, retired Justice Stephen Goudge concluded that medical malpractice cases take too long and cost taxpayers too much, with total case costs surging by up to 700 per cent, unadjusted for inflation, between 1990 and 2015.
“As medical liability costs rise, the cost of medical liability protection necessarily rises,” wrote Goudge in a 65-page report Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review.
“This, and concerns about the length of time required for individuals to obtain compensation for injuries due to medical mistakes, suggest that changes to the medical liability aspect of the civil justice system may be needed to ensure the long-term viability of the way medical liability protection is presently provided in Ontario.”
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Quebec bill does not apply to Montreal police pension plan
Montreal’s 4,500 men and women in blue literally heaved a huge sigh of relief after companion decisions by the Quebec Court of Appeal held that a bill introduced by the Quebec government does not apply to their defined pension plan.
