The longest Canadian strike by public civil servants came to an abrupt end after the Quebec government passed a special law that compelled striking government lawyers and notaries back-to-work following a labour conflict that paralyzed the province’s administrative justice system and incapacitated the government’s efforts to pass legislation and enact regulations.
Montreal’s blue collar union and its controversial president and executives were sentenced to pay $103,000, the maximum fine allowable, for contempt of court after organizing an illegal one-day strike in spite of an injunction issued by a labour tribunal the previous day.
The stern ruling, one of only a handful over the past decade that have found Quebec unions guilty of contempt of court, is intended to send a harsh warning to the labour movement that the courts will not tolerate willful blindness, according to labour lawyers.
Quebec government lawyers and notaries, forced back to work after Canada’s longest public sector strike, won a legal battle against the provincial government after the Quebec Court of Appeal held that the government discriminated against jurists on maternity leave.
In a nuanced decision that will provide comfort to both employers and labour organizations, the appeal court found that it is not discriminatory if employers under certain circumstances “distinguish” for purposes of compensation between employees who provide services to employers and those who do not such as those in maternity or sick leave. But the appeal court added that it is discriminatory if employers provide different compensation to different groups of employees who do not provide services to employers, if the distinction was based on prohibited grounds.
The City of Montreal, one of a growing number of municipalities in Quebec that has attempted to use zoning restrictions to restrict places of worship, acted in bad faith and breached the Charter’s guarantee to freedom of religion when it tried to shut down an Islamic cultural centre that hosted religious ceremonies, ruled Quebec Superior Court.
In a closely-watched decision by municipal and human rights lawyers, Quebec Superior Court Judge Jean-Yves Lalonde castigated the city for implementing a zoning by-law that “would promote a phenomenon of ghettoization, access problems and appears to be discriminatory compared to the Catholic churches in the borough that are generally found in the residential sector in the City of Montreal.”
Photo radar tickets are under the gun in Quebec, following a series of decisions that have put thousands of tickets in jeopardy after the courts called into question the rules around the province’s use of the automated speed and red-light enforcement technology.
The fallout from the precedent-setting decision that held that evidence from the current photo system is “inadmissible” and “illegal” is already beginning to be felt at a time when Quebec is increasing the number of photo radar sites. Shortly after the landmark ruling issued in late November by Judge Serge Cimon of the Court of Quebec, another Court of Quebec judge heeded his guidance and tossed out 422 photo radar tickets. More recently still, two Montreal lawyers have filed two separate motions seeking authorization for class action lawsuits against the Quebec government to have hundreds of thousands of speeding and red-light tickets issued with photo radar evidence thrown out or refunded.
This is a case of déjà vu all over again.
When Bernard Amyot resigned as the lead counsel of a public inquiry that will shortly be investigating surveillance of journalists by Quebec police, it marked the third time in seven years that a lawyer who sought to make a mark in public affairs had his hopes dashed.
Amyot, an ambitious Montreal lawyer with solid credentials, was appointed days before Christmas as lead counsel of the Commission of Inquiry on the Protection of the Confidentiality of Journalistic Sources by Quebec Court of Appeal Justice Jacques Chamberland, the chair of the commission. Less than three weeks later, an opinion piece penned by Amyot nine years ago came to haunt him. He had castigated Montreal columnist Patrick Lagacé for being a pseudo journalist who lacked vigor:
“Lagacé, who is neither a journalist nor an analyst, all the same claims the right to preach to everyone, however without deigning to impose on himself, in a measured and rational manner, the necessary rigour to debate ideas.”
Calls for his resignation by the organization that represents Quebec journalists soon followed because the opinion piece raised doubts about his neutrality. Lagacé, after all, is a central figure behind the scandal that prompted the Quebec government to launch the inquiry. Last fall it was revealed that the high-profile journalist had been the target of a months-long covert police operation that tracked calls and texts on his iPhone because law enforcement authorities were trying to find the source of an internal leak to the media.
In a statement Amyot said “doubts have been raised about me, and even though these doubts have no legal basis, I am making the decision to withdraw from my position as lead counsel.”
In 2012 renown Montreal lawyer Sylvain Lussier too felt compelled to resign a week after being nominated lead counsel of Quebec’s public inquiry into the province’s construction industry, which came to be known as the Charbonneau Commission. “Doubts” had been raised about a possible appearance of conflict of interest over an old case he had worked on as a lawyer, and while Lussier asserted that the concerns had “no basis in fact or in law,” trepidation over the integrity of the inquiry prompted him to step down.
In 2010 Québec City lawyer Pierre Cimon also saw slip away his opportunity to leave his mark as lead counsel of a public inquiry that examined the way judges are nominated in Quebec, or the Bastarache inquiry as it is better known. Barely a week after being appointed by former Supreme Court justice Michel Bastarache, Cimon bitterly resigned after being caught in a political maelstrom that raised doubts over his impartiality following revelations that he had regularly contributed to the Quebec Liberal Party. Between 2002 and 2007, Cimon made five donations ranging from $250 to $500 – far less than what he gives to the Barreau du Québec’s Foundation or his local parish.
“I donate to the local parish even though I am not a churchgoer,” Cimon told me at the time. “I donate because I believe churches play an important social role. It doesn’t mean that I practice and believe in the church’s dogma or agree with Cardinal Marc Ouellet’s position that abortion should be criminalized. The same holds true for the donations I made to the Liberals. I am a federalist, and that was the only place I could donate.”
Though the trial lawyer asserts he is apolitical, never attended a political meeting nor solicited or received any benefit from any government, and does not even know anyone stemming from ranks of the Liberals, he felt he had no choice to step down in order to avoid doubt being cast on the impartiality of the Bastarache Commission and to ensure the serenity of its procedures.
The Quebec Act respecting public inquiry commissions is silent about how the commission’s counsel are appointed. It does not state who has the power to appoint the counsel nor does it stipulate whether a procedure should be followed. That is not a unique situation. The Ontario Public Inquiries Act too provides no “provision for this crucial step in an inquiry’s life,” pointed out a 1992 Report on Public Inquiries by the Ontario Law Reform Commission. (That is still the case today).
In practice, the power to select an inquiry’s counsel is granted to the chair of the commission. “There are no rules or guidelines,” told me a lawyer familiar with the inner workings of public inquiries. A Protocol on the appointment of judges to commissions of inquiry that was adopted by the Canadian Judicial Council in 2010 states that’s the way it should be. “The judge should have complete independence in selecting his or her staff, in particular the commission counsel,” says the Protocol.
But the three resignations strongly suggest that it is perhaps time to review how judges appoint counsel to public inquiries. “I have seen how public inquiries can restore confidence and fix institutions – and I have also seen the tremendous impact on individuals whose lives are forever changed through their participation in the process,” once remarked former Ontario Court of Appeal Justice Dennis O’Connor, who sat as Commissioner on both the Walkerton and Arar Inquiries. At a time when public confidence in the justice system is under siege, it is incumbent upon judges appointed to head public inquiries to put in place proper vetting procedures that take into account not only conflicts of interest but perceived conflicts of interest that may cast doubt upon the players even though the qualms may have “no legal basis.” It certainly would help if they were media savvy and aware that in this day of age of unhealthy partisanship and intense media scrutiny, aided and abetted by the omnipresence of social media, that perceived conflicts of interest take on a life of its own.
Lawyers appointed as lead counsel of public inquiries too bear a responsibility of side-stepping potential ethical minefields. The president of the Fédération professionnelle des journalistes du Québec, Stéphane Giroux, noted that a simple Google search revealed that Amyot had written a “very disturbing” article that led to his resignation. Lagacé, upon learning of Amyot’s resignation, said that he was astonished that Amyot had accepted the mandate to act as lead counsel of the inquiry in the first place. “He is no doubt a good lawyer, I have nothing to say about that, but he knew what he had written about journalism, the media and certain individuals such as myself. I find it surprising that he had accepted, but he redeemed himself by recusing.”
But there’s no reason for yet another public inquiry to be subjected to an unnecessary blot. More is and should be expected.
The Quebec Court of Appeal upheld a ruling that certified a class-action lawsuit following an outbreak of Legionnaires’ disease in Quebec City in 2012 that is believed to have contributed to 14 deaths and lead 181 others to become ill from bacteria found to be in a cooling tower of a downtown office building.
A retirement home has been ordered by the Quebec Human Rights Tribunal to pay more than $11,000 in material, moral and punitive damages to an employee who was fired because of her health condition.
The “important” decision reaffirms the wide reach of article 18.1 of the Quebec Charter of human rights and freedoms, which circumscribes information-gathering at the pre-hiring stage, highlights the importance for employers to have thorough pre-employment medical questionnaires that do not breach the Charter, and underscores the need for employers to take immediate action when employees demonstrate bad faith, according to employment and human rights lawyers.
Quebec’s flagging public small and medium-sized financing ecosystem must be bolstered to incite companies to enlist in stock exchanges, spur business to grow faster, and restore Montreal’s status as a major financial centre, according to a report by a working group that received financial and logistical support by the Quebec Order of CPAs.
Quebec, once a pioneer that lead the movement towards greater government transparency, is now among the least transparent provinces in Canada after successive provincial governments introduced more than 150 legislative exemptions that undermined the province’s access to information legislation, according to a recently published comprehensive report by Quebec’s Commission d’accès à l’information.
With Quebec ranking 10th out of 14 jurisdictions in Canada, and 57th in the world, behind Honduras and Romania, the Quebec government should overhaul the provincial access to information legislation to compel all public bodies, even those partially financed by the provincial government, to be subjected to the access to information law, noted the 214-page, five-year report that issued 67 recommendations. The Commission, which also oversees provincial privacy legislation, also called on the Quebec government to beef up privacy protection measures.
“The access to information law has not been the subject of a thorough reform in 35 years, and the privacy legislation in 22 years,” remarked Diane Poitras, the Commission’s vice-president. “It’s time to re-establish the balance between the rights of citizens — who are calling for greater transparency and stronger privacy protection measures — and the needs of business and government organizations to collect and use” — and in some cases safeguard — information.
A general strike by Quebec government lawyers and notaries shows no signs of abating as the provincial government is remaining firm while the bargaining agent has received the approval of the overwhelming majority of its members to shore up its war chest.
Without a contract for more than a year, the 1,100 members of the Les avocats et notaires de l’État québécois (LANEQ) have been on strike since late October to push for a change in the negotiation process from the current mediation process. LANEQ is calling for binding arbitration, buoyed by a compensation committee, with a chair chosen and appointed by both parties. The mandate of the compensation committee would include assessing reasonable compensation while taking into the account the provincial government’s capacity to pay. In exchange, the association is willing to give up its right to strike. (Quebec Crown prosecutors are not part of the strike).
A cultural change that emphasizes collaboration between all players of Quebec’s criminal justice system is the only way to ensure that costly and unwieldly megatrials do not end up in fiascos, according to a well-received comprehensive report on multi-defendant trials.
The long-awaited 180-page report also urges the Quebec government to provide more resources to the province’s Director of Penal and Criminal Prosecutions (DPCP), recommends that Quebec crown prosecutors limit the number of accused and concentrate their efforts on criminals most involved in serious crimes, advises the creation of a permanent forum for stakeholders to share best practices, proposes that police and prosecutors take management training, and calls on judges to use the powers they have more effectively. All told, the report makes 51 wide-ranging recommendations.
A long-awaited ambitious bill introduced by the Quebec government has been guardedly welcomed by business and environmentalists alike as it is expected to simplify the provincial environmental approval regime by making it clearer, more efficient, more predictable and more transparent.