Barely a couple of weeks after the former president of the Quebec legal society reluctantly resigned after a bitter and protracted fracas with the board of directors of the Barreau du Québec, Lu Chan Khuong is fighting back while raising the possibility that she may yet come back to seek another term if her electoral platform is not fulfilled by the new president.
Quebec
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Quebec Charter imposes duty to accommodate, rules appeal court
A precedent-setting ruling by the Quebec Court of Appeal that amended the provincial law governing an employers’ duty to accommodate employees with workplace injuries will compel employers, unions, workers, and the Quebec worker’s compensation board to review the way they manage employment injury cases, according to employment and labour lawyers.
In light of Supreme Court of Canada rulings regarding reasonable accommodation of people with disabilities, the Quebec Court of Appeal held that the rehabilitative process contemplated by the Quebec Act respecting industrial accidents and occupational injuries (ARIAOD) does not relieve employers of their duty to accommodate under the Quebec Charter of Human Rights and Freedoms.
“This ruling helps to ensure the progress of labour rights,” remarked Sophie Cloutier, a Quebec City labour lawyer with Poudrier Bradet Avocats LLP. “The ruling is very important because it marks a shift by the Quebec Court of Appeal on its own case law and ensures that the Charter and the duty to accommodate is applied in cases involving workplace injuries.”
In October 2004, Alain Caron developed tennis elbow while working as an educator at a Montreal institution for people with intellectual disabilities. His workplace injury lead to functional limitations that prevented him from continuing to work as an educator. His employer terminated his employment because it deemed that there was no other suitable position that was compatible with his functional limitations. After review, the Commission de la santé et de la securité du travail (Quebec workers compensation board) confirmed the employer’s decision. The Commission des lésions professionnelles, an administrative tribunal that hears appeals by employers or workers challenging decisions by CSST, dismissed Caron’s application to impose a duty to accommodate on the employer.
Under ARIAOD, victims of an employment injury have the right to return to work for their employer and a right to rehabilitation with a view to reinstatement in their employment, equivalent employment, or suitable employment. The provincial statute however does not impose on the employer to find suitable employment to an employee who has sustained a work-related injury nor a duty to accommodate. Well-established case law has also maintained that the ARIAOD does not grant the CSST or the CLP the power to impose, recommend, or suggest any kind of accommodation.
Up until the Caron case, “the courts have refused to impose a duty of accommodation within the ARIAOD framework, holding that the CSST and the CLP did not have the jurisdiction to order such a measure or that the ARIAOD legislative scheme constituted an autonomous set of standards that incorporates its own legal accommodation process,” explained Anne-Marie Laflamme, a law professor at the Université Laval who has written about the subject.
Caron fought back and took the matter before Quebec Superior Court for judicial review and won. The court held that the CLP should have taken into account the Charter, annulled CLP’s decision, and sent the case back for reconsideration. The CSST appealed the lower court decision before the Quebec Court of Appeal, and lost.
The appeal court held that an employee living with the after-effects of a work-related accident could be considered handicapped, and should therefore be protected by the Charter. Otherwise that would lead to the odd situation where workers disabled by an employment injury would be “disadvantaged when compared with workers whose disabilities result from a personal condition,” noted Justice Dominique Bélanger in a unanimous decision in Commission de la santé et de la sécurité au travail v. Caron 2015 QCCA 1048. Though the ARIAOD does not impose an obligation on the employer to offer suitable employment to an employee who has suffered a work-related injury, the appeal court held that because of the supra-legislative nature of the Charter employers will now have to find an acceptable solution to accommodate workers whose work-related injuries have caused functional limitations. The appeal court also held that the CSST now has the obligation to determine whether an employer diligently performed that exercise.
“It will more or less change things in unionized workplaces because in practice many employers, particularly governmental and para-governmental organizations, already have collective agreements that puts that exercise into practice,” noted Raymond Gouge, a Quebec City lawyer whose practice focuses on workers’ compensation and occupational health and safety in the health sector. “But in some sectors, like pulp and paper or transportation, the duty to accommodate will not be easy because of the physical nature of the jobs and so employers will not necessarily be able to accommodate them.”
Employees who work in non-unionized workplaces will notably benefit from the ruling, said Laflamme. “The ruling by the appeal court will allow all workers who suffered a work-related accident the right to benefit from the right of reasonable accommodation, regardless of whether or not they are unionized,” said Laflamme. “Up until now, only unionized employees benefitted from these rights under their collective agreement.”
Besides employers, workers and unions too will have to change the manner they handle work-related injury cases. While employers will now have to demonstrate that they actively sought a reasonable accommodation before asserting that they have no suitable position for an injured worker with functional limitations, the appeal court highlighted that unions and workers too have to cooperate in the process. In fact, workers have a corollary obligation to accept the proposed accommodation, so long as it is reasonable, said Justice Bélanger.
The CSST, which is considering appealing the ruling, will likely have their hands full to ensure that public and private sector employers are fulfilling their duty to accommodate employees who have functional limitations due to a work accident, noted Gouge. That will likely drive up costs. After all, the CSST is for all intents and purposes an insurance company, pointed out Jean-François Martin, a labour and health and safety lawyer with Dufresne Hébert Martin in Montreal. “Besides seeking to protect the provisions of the law that they defend, they saw the issue as an economic one,” noted Martin. “Like other provincial workers’ compensation boards, the financial responsibility (of handling work-related injury cases) ceases after a while for the employer, and it is the CSST that takes over the case. So it is a big issue for them.”
The financial burden will likely be heightened because the appeal court held that the time limit provided for in the ARIAOD for a worker to exercise his right to return to work – depending on the circumstances it could be a year or two – is merely one of the factors that employers and the CSST has to take into consideration. It no longer is a determinative factor.
The issue is far from settled. The Quebec Court of Appeal will decide shortly whether arbitrators have the jurisdiction to determine whether employers are fulfilling their duty to accommodate in such matters.
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Tobacco companies do not have to pay initial $1.13 billion in tobacco class action suit
Three Canadian tobacco companies will not have to make an immediate $1.13 billion payment to Quebec smokers who won a landmark class action suit after the Quebec Court of Appeal held that the justification for the provisional execution is weak, the prejudice to the firms serious, and that the balance of convenience weighs in their favour. -
Quebec Court of Appeal overturns discrimination case
In a ruling that took human rights lawyers by surprise the Quebec Court of Appeal overturned a discrimination case against aeronautics multinational Bombardier Inc. after holding that there was no evidence that a Canadian pilot of Pakistani origin was a victim of ethnic discrimination.
The Quebec Human Rights Tribunal, in a precedent-setting ruling that held that Quebec human rights laws prevail over American anti-terrorism efforts in Canada, ordered the Montreal-based firm three years ago to pay Javed Latif $319,000 in damages after it found that the pilot’s human rights were violated when Bombardier barred him from flight training at a Montreal facility because U.S. authorities had designated him a security threat. The Tribunal also ordered Bombardier to cease respecting U.S. national security decisions when pilots are seeking flight training under Canadian licences.
But in a unanimous 40-page facts-specific decision that reviewed the evidence of the case, the Quebec Court of Appeal took issue with the fact that the Tribunal based its decision almost entirely on an expert report and testimony of University of Windsor law professor Reem Anne Bahdi. The report concluded that U.S. post 9/11 security measures are generally riddled with stereotypes about Muslims and persons of Arab origin, and therefore the decision to deny Latif must have also been discriminatory. The appeal court found the report was not scientifically objective and had numerous flaws and shortcomings.
“I find it difficult to see how we can allow ourselves to make a judgment that an anti-Arab or Islamaphobic sentiment in the U.S., following the events of September 11, 2001, would be sufficient to create the necessary causal link between the refusal of American authorities to issue a security certificate and (Latif’s) Pakistani nationality,” wrote Justice Marie St-Pierre in Bombardier inc. (Bombardier Aerospace Training Center) v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650. “In the relevant period (2003-2008), Bombardier trained a number of pilots of Arab, Muslim or Middle-Eastern descent who underwent the same security verifications and who received positive responses.”
But human rights experts are concerned that the Quebec Court of Appeal has as of late far too easily accepted motions for leave to appeal decisions issued by the Quebec Human Rights Tribunal, shown little deference to Tribunal rulings, and adopted rules of the Civil Code of Quebec to human rights matters.
“I have the impression that this case was treated as an ordinary commercial law matter that applied civil law rules,” observed Christian Brunelle, a law professor at the Université de Laval. “It ignored the quasi-constitutional status of the Quebec Charter of Human Rights and Freedoms, its distinct nature compared to civil law, and the importance of interpreting human rights violations generously and liberally. It worries me.”
Brunelle, who is conducting a study examining how decisions by the Tribunal fare before the Quebec Court of Appeal, is all the more concerned because there are clear signs that the appeal court “seems to have great interest” in hearing cases stemming from the Quebec Human Rights Tribunal — and does not hesitate to overturn them. The appeal court normally shows much deference over the appreciation of evidence made by judges of first instance, but “for reasons I cannot explain entirely” it seems to be far less reserved when it comes to reviewing evidence from Quebec Human Rights Tribunal decisions, said Brunelle.
Its penchant to apply a “civil law analysis grid” to decide human rights issues is equally disconcerting, with the result that they are more demanding in terms of causality, added Brunelle. The Bombardier decision is a case in point. While the Tribunal held that Latif’s ethnic origins played a role, “perhaps minimal but nevertheless a real one,” in the U.S. decision to blacklist him, the appeal court found that there was no such evidence. “The question then is what evidence is required to invoke discrimination or does one have to demonstrate causality,” asked rhetorically Brunelle. “Depending on what approach one takes, there are different consequences.”
That is an issue that the Court of Appeal of Ontario grappled with over the course of the summer in Peel Law Association v. Pieters, 2013 ONCA 396. In a 45-page ruling, the Ontario appeal court held that all that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. In short, the ground of discrimination must somehow be a “factor” in the adverse treatment. “The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause,” said Justice R.G. Juriansz.
Thanks to the different tack taken by Quebec appeal court, Quebec human rights jurisprudence is developing “differently” compared to the rest of Canada, asserts Brunelle. “It gives the impression that the Quebec Charter, which is a quasi-constitutional law, is taken less seriously in Quebec regarding issues of discrimination than is the case elsewhere,” remarked Brunelle.
The Bombardier case raises yet more troubling issues, says Montreal lawyer Alain Lecours of Lecours & Hébert. Following the appeal court decision, it now seems that another nation can impose conditions on Canadian companies operating on Canadian soil, says Lecours. A Bombardier executive testified before the Tribunal that American authorities told him not to train Latif, and that if it did, there would be “serious consequences” for Bombardier. Justice Michele Rivet of the Tribunal criticized in her ruling Bombardier for taking the U.S. designation in faith and not trying to find out whether Latif was a security risk for Canadians. “Following this decision by the Quebec Court of Appeal, we now find ourselves in a situation where a foreign state can put pressure and impose conditions on Canadian enterprises here” in Canada, remarked Lecours.
That point of view is echoed by Catherine McKenzie, who represented Latif. “The way that Bombardier acted in this case by applying an American decision, without doing any independent verification on its own as to its validity – and knowing that Latif would have no ability to know the evidence against him or appeal the decision – is permissible,” said McKenzie, a Montreal litigator with Irving Mitchell Kalichman. “That is the impact of this decision.”
A spokesperson for the Quebec Human Rights Commission declined to comment on the case while a Bombardier spokesperson would only say they are pleased by the ruling.
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Mandatory retirement age for municipal judges not discriminatory
Two municipal judges who sought to stay on the bench beyond the retirement age of 70 lost their legal battle after Quebec Superior Court held that a mandatory retirement age for provincially-nominated magistrates is not discriminatory and is necessary to preserve judicial independence.But the ruling has not settled the issue of mandatory retirement age for provincially-nominated judges, according to Gérald Tremblay, former batonnier of the Quebec law society. Seven years ago, an Ontario Superior Court judge ruled that a law forcing justices of the peace in the province to retire at the age of 70 was a violation of equality rights guaranteed under the Canadian Charter of Rights and Freedoms. Justice Strathy, now Chief Justice of the Ontario Court of Appeal, substituted – or “read in” – new provisions that allow justices of the peace to keep working until age 75, subject to the annual approval of the Chief Justice of the Ontario Court of Justice, even though the official retirement age is 65.
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Quebec intends to introduce new sign regulations following appeal court decision
In a major victory for international retailers such as Best Buy, Costco, Gap, and Wal-Mart, the Quebec Court of Appeal confirmed that the Charter of the French Language allows for the use of non-French trademarks on storefront or public signs and advertising in the province, so long as no equivalent French trademark has been registered.A five-judge Court of Appeal panel held, without even hearing arguments from retailers or interveners, that the Charter and its regulations clearly allow the use of a trademark in a language other than French, even if the trademark name is being used as a business name.
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New trial ordered for murderer following insufficiently clear jury instructions
A new trial has been ordered for a 51-year old Quebec City man convicted of first degree murder after the Quebec Court of Appeal held that the trial judge did not provide with sufficiently clear instructions to the jury over the reliability of a confession made in a “Mr. Big” police sting operation.In a case that applied the new framework established last year by the Supreme Court of Canada over the admissibility of confessions elicited during “Mr. Big” operations, the Quebec Court of Appeal ruled that the confession made by Alain Perreault during the police sting was admissible because its probative value outweighed its prejudicial effects. But the appeal court found the trial judge should have instructed the jury the context in which the admission was made to address concerns about the reliability and prejudice that arise from these confessions. “Mr. Big” operations are elaborate stings where undercover agents recruit suspects into fictitious criminal organizations to gain their trust and extract a confession, particularly in cold cases.
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Muslim non-profit organization obtains status as religious institution
A Muslim non-profit organization that sought to obtain the status of a religious institution in order to obtain an exemption from paying municipal and school property taxes won its case after Quebec Superior Court overturned a ruling by Quebec’s administrative tribunal.
In a ruling that reversed a recent trend by Quebec adjudicators who interpreted the notion of religious institutions narrowly and restrictively, Quebec Superior Court Justice Carol Cohen held that it should instead benefit from a broad and liberal interpretation. While the expression religious institution is not defined by Quebec law, Justice Cohen heeded guidance from Quebec jurisprudence as well the recent Supreme Court of Canada’s ruling in Loyola High School v Quebec (Attorney General) 2015 SCC 12, and held that that a religious institution exists when an organized group of persons establish or create an organization to facilitate the pursuit and realization for religious purposes.
“The Fondation case resembles a lot to the Loyola High School, a non-profit corporation that is involved in private education, the only difference being the Muslim faith of its founders,” said Justice Cohen in Fondation Internationale Azzahra inc. v. Cour du Québec 2015 QCCS 1307.
Much is at stake. Under the Quebec Act respecting municipal taxation (Act), religious institutions are exempt from paying municipal or school property taxes. There are 3,804 religious institutions in Quebec, including 1,132 in Montreal that were exempted from paying $92 million in municipal and school property taxes in 2014. But the Quebec government has been clamping down in recent years against organizations that allegedly abuse their status as religious institutions to avoid paying municipal and school property taxes, and has launched legal proceedings against them before the Quebec Administrative Tribunal.“This is an important ruling because the appreciation of what constitutes a religious institution and religious activities was increasingly being interpreted in a more limited and restrictive fashion by adjudicators and the courts,” explained Sébastien Dorion, a Montreal lawyer with Dunton Rainville who successfully plead the case. “This ruling sets the record straight and restores the broad and liberal interpretation that existed before the new restrictive interpretation began to take hold.”
The case deals with Fondation Internationale Azzahra, a Montreal charitable and Islamic religious foundation established in 1989. It owns and operates a mosque, a Muslim cemetery, Islamic schools, and conducts charitable, philanthropic, community and cultural activities. The property that houses its mosque and cemetery were exempted from paying municipal and school property taxes because it was granted the status of a religious institution. In 2008, the Fondation acquired another property in Montreal that housed a high school, and it was granted a licence to teach by the Quebec Ministry of Education. In 2009, the City of Montreal issued two certificates exempting the Fondation from paying municipal and school property taxes on the school because it deemed it to be part of a religious institution.
But the Quebec Ministry of Municipal Affairs, Regions and the Occupation of Territory (MAMROT) contested the two exemptions and brought the matter before the Tribunal administratif du Québec (TAQ). On November 2011, the adjudicators ruled in favour of MAMROT and held the Fondation should not qualify as a religious institution under the Act. Rather the TAQ held the Fondation should be classified as a cultural and community organization because its letters patent and promotional materials do not describe it as a religious institution and because its stated aim was above all charitable, philanthropic, and community-based. Oddly, the TAQ ruling made no reference to the fact that the Fondation was already granted the status of a religious institution for its other properties that housed the mosque and the cemetery.
The financial consequences of the TAQ ruling were enormous. If the ruling was upheld, the Fondation faced a tax bill running into the hundreds of thousands of dollars in back taxes, said Dorion. An exemption would spare it from paying municipal and school taxes that range between $75,000 and $100,000 annually. The Fondation successfully appealed the ruling.Justice Cohen overturned the TAQ decision, and held that the adjudicator’s decision was “incomprehensible and unreasonable,” particularly since the Fondation was already certified as being a religious institution for its other properties. “If the interpretation of the TAQ and MAMROT is correct, then all religious institutions will have to abstain from doing too much charitable, philanthropic or educational activities, in order not to lose its qualification as a religious institution” under the Act, noted Justice Cohen. “Such a conclusion would be the equivalent of an amendment to the Act and would require a definition of what is too much of these activities, a definition and limitation that is nowhere to be found in the Act.”
Justice Cohen also pointed out that under article 2 of the Quebec Religious Corporations Act religious activities and charity, teaching, and education are not mutually exclusive. On the contrary, the Religious Corporations Act “suggests” that charity, teaching and education are part of the objectives of religious corporations, added Justice Cohen.
“The ruling is lucid,” said Daniel Bouchard, the managing partner of Lavery, de Billy’s Quebec City office and an expert in municipal law. “If one thinks about it, it would be counterproductive for a society at large (if the TAQ decision was upheld). We’d be asking religious institutions who want to continue to benefit from the exemption to conduct the least charitable work possible. That would be a misinterpretation of the Act.”
The ruling does not create new law, points out Guillaume Rousseau, a law professor at the Université de Sherbrooke. Instead, it reverts back to jurisprudence that existed before the TAQ began issuing a strict interpretation of what constitutes a religious institution. “Justice Cohen is ensuring that the TAQ decision does not evolve into jurisprudence that favours a strict and restrictive interpretation of religious institutions,” said Rousseau, a municipal law expert. “She clarified the notion of religious institution and goes back to the jurisprudence that existed before rather than making it evolve in the way the TAQ decision would have.”
Dorion has another client that faces the same plight as the Fondation. The TAQ turned down the organization’s application to be certified as a religious institution because it was “too involved in education,” said Dorion. He intends to use Justice Cohen’s decision to appeal the TAQ decision.
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Repeat drunk driving offender gets lenient sentence
A lower court ruling that sentenced a 61-year old Montreal alcoholic and repeat offender of impaired driving offenses to only 120 days of imprisonment and a lifetime driving ban was upheld by the Quebec Court of Appeal in a ruling that reaffirms the discretionary sentencing powers of trial judges, highlights the merits of individualized sentencing, and reiterates the weight that can be given to rehabilitation when sentencing.“The ruling is important because it shows there is still a place for individualized sentencing, that people who may not be cookie cutter examples of a sentence can actually get something that is outside of the norm because obviously the sentence he got was quite lenient,” said Dylan Jones, a Montreal criminal lawyer with Boro, Polnicky, Lighter. “It’s also important because it at least shows that if people are willing make efforts to change their lives for the better they can be rewarded for that.”
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Task force proposes bold overhaul of Quebec tax system
A blue-ribbon panel of tax experts has proposed a bold overhaul of Quebec’s tax system that would introduce a new tax mix by slashing $5.9 billion in Quebec personal and business taxes while increasing consumption taxes and fees in a bid to spur economic growth, job creation, and make the province a more competitive place to invest.The sweeping reforms, which represent a marked shift in tax policy by shifting the reliance on income taxes to provincial sales tax and user fees, could serve as a model for other provinces as they too are grappling with an ageing population and sluggish government revenue growth, said Stephen Gordon, a professor of economics at the Université Laval.
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Quebec regulates virtual currency ATMs and trading platforms
In a move that caught the business and legal community by surprise, Quebec became the first jurisdiction in Canada to regulate the digital currency sector by requiring businesses that operate virtual currency automated teller machines or trading platforms to obtain a licence to operate in the province.
But the recently published amendments to the Policy Statement of the Money Services Businesses Act (Act) by Quebec’s financial watchdog has drawn criticism from industry observers who assert that it is brimming with ambiguities and risks hindering the burgeoning digital currency industry.
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Landmark ruling clarifies franchisor’s obligations
In a “sad saga” of a successful franchise operation that suffered a meltdown in Quebec following aggressive and fierce competition, a 12-year legal battle came to a bittersweet end after the Quebec Court of Appeal upheld a lower court ruling and ordered Dunkin’ Brands Canada Ltd. to pay 21 Quebec franchisees nearly $11 million, an amount that rises to $18 million with interest and additional indemnity, for breach of contract, misrepresentation, and negligence.In the biggest Quebec franchising case in nearly two decades, the Quebec Court of Appeal concluded that the franchise agreements between Dunkin’ Donuts and its franchisees explicitly imposed on Dunkin’ Donuts an obligation of means to take reasonable and timely measures to protect and enhance its brand, particularly in the face of market changes. The franchisor was also bound by obligations that could be implied in the agreement under article 1434 of the Civil Code of Quebec (CCQ), including the implied obligation to act in good faith towards its franchisees, to cooperate with them, and to assist them, held the appeal court. “The obligations owed by the franchisor were not only those explicitly stated in the agreements but also implicit obligations that flowed from the nature of the franchise agreement,” said appeal court Justice Nicholas Kasirer in a unanimous 53-page ruling in Dunkin Brands Canada Ltd. v. Bertico Inc. 2015 QCCA 624.
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Blind man wins discrimination case
A now-defunct Montreal nightclub was ordered to pay $2,500 in moral damages to a blind man for refusing to grant him and his guide dog access to the dance floor, following a ruling by the Quebec Court of Appeal that raises the bar for business to accommodate disabled people.
In a majority decision that demonstrates yet again the appeal court’s penchant to overturn rulings by the Quebec Human Rights Tribunal, the appellate court held that Simon Beauregard was a victim of discrimination because the nightclub did not take reasonable efforts to accommodate him.
“The principles that emerges from this ruling is that it will take extremely serious reasons to refuse to accommodate someone so in one sense one can rejoice but what preoccupies me is that the Quebec Human Rights Tribunal does not appear to benefit from a minimal amount of deference by the appeal court,” remarked Christian Brunelle, a law professor specializing in human rights at the Université Laval. “The appeal court does not shy away from overturning the Tribunal’s rulings, sometimes even over the appreciation of evidence. That’s what it seems to have done here.”
The ruling, which marks the first time the Quebec appeal court ruled on access to public spaces for service dogs for disabled persons, imposes a “heavy burden” on business that adopt a discriminatory policy to prove that it was based on a bona fide and reasonable justification, said Marc Benoit, an employment lawyer with Loranger Marcoux in Montreal. “Can you imagine the burden that it places on service providers who have to make a decision on the spot,” asked rhetorically Benoit. “The bar is higher than it was.”
On May 2009, Beauregard went to the Radio Lounge Bar with his guide dog and a friend, and was told by the manager that he had to leave the animal in the coat-check area. The bar’s staff were concerned about the presence of the service dog in the middle some 500 partygoers, and feared that it could lead to falls, pushing and shoving, and even fights, even though Beauregard insisted he had never had a problem in other establishments. The owner of the bar, Ahmed Ziad, stepped in and offered Beauregard and his service dog access to a V.I.P. lounge, located away from the dance floor. A month later, Beauregard lodged a complaint with the Quebec Human Rights Commission alleging that he was a victim of discrimination, based on his handicap and the means he used to “palliate” his handicap, infringing articles 10 and 15 of the Quebec Charter of Human Rights and Freedoms.
On February 2013, 18 months after the Commission took legal action before the Quebec Human Rights Tribunal, the Tribunal cleared the bar owner of any wrongdoing. The Tribunal held that while preventing Beauregard and his service dog to gain access to the dance floor was discriminatory, it found that the refusal was based on “a real and reasonable” concern for security. The “mere presence” of the dog on the dance floor where there were several hundred patrons, “many of who were probably drunk,” created a high risk for falls, said the Tribunal.
The appeal court, heeding guidance issued by the Supreme Court of Canada in the Grismer case [British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868] and the Meiorin case [British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, 1999] overturned the Tribunal’s ruling. In Meiorin, the SCC developed a new test for all types of discrimination that broadened the notion of the duty to accommodate. Once a plaintiff establishes a prime facie case of discrimination, the onus lies with the defendant to prove on a balance of probabilities that the policy or standard has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that that it adopted the policy or standard for a purpose or goal rationally connected to the function being performed, that it was adopted in good faith, and that the policy or standard is reasonably necessarily without incurring undue hardship. A serious risk or excessive cost may be considered as undue hardship.
The Quebec Court of Appeal held in Commission des droits de la personne et des droits de la jeunesse c. 9185-2152 Québec inc. (Radio Lounge Brossard), 2015 QCCA 577 that the Quebec Human Rights Tribunal did not apply all of the elements of the Meiorin test correctly. The Tribunal correctly came to the conclusion that Radio Lounge passed the first two steps of the Meiorin test: its decision was based on a legitimate objective, that is, to ensure the security of its clients, and the nightclub acted in good faith. But the appeal court found that the Tribunal did not apply the third part of the test correctly. Instead “it limited itself to finding that the presence of the guide dog could entail a ‘high’ risk of incidents,” said Justice Jean-François Émond in reasons that Justice Marie-France Bich agreed with. “It did not consider whether the evidence had established the ‘serious’ or ‘undue’ nature of such risk or even its existence. It therefore bypassed the issue without addressing the fact that no actual accommodation had been seriously considered. In this case, the risk was assessed in light of evidence based on impressions.” Granting access to the V.I.P. section was not in fact an “actual accommodation,” but rather was an exclusionary measure that had the effect of isolating Beauregard.
“The appeal court first of all confirmed the importance of granting equal access to handicapped people, and it reminds establishments – private as much as public – that blind people accompanied by service dogs must have access to the establishment,” remarked Marie Dominique, a lawyer with the Quebec Human Rights Commission who successfully plead the case. “They cannot allege a risk to skirt around their obligation to take reasonable steps to accommodate, unless the risk is serious or excessive. So this ruling goes further than the majority of decisions on matters regarding access to public spaces for handicapped people.”
Benoit, however, is concerned about the burden of proof that service providers will have to establish to justify a discriminatory policy. He notes that a business that does not provide a reasonable accommodation will have to demonstrate that the risk is excessive and serious, and that it cannot be based on preconceived ideas or notions. “It has to be based on objective evidence – and it is going to be really interesting to see how service providers will be able to prove that before the courts,” said Benoit. “The burden of proof has become excessively high for service providers.”
Appeal court Justice François Pelletier would have upheld the Tribunal’s ruling. He asserted that the appeal was principally based on an appreciation of evidence, and that deference should have been given to a “specialized body” that was given the mandate to decide on human rights matters. Besides, it was reasonable to conclude that it would have been “unwise” to allow the dog access to the dance floor given the risks that it posed under the circumstances, added Justice Pelletier.
The ruling also appears to go against the grain of yet another ruling by the SCC that seemingly lowered the bar over the duty to accommodate, according to Brunelle. In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43, the SCC overturned a ruling by the Québec appeal court and held that an employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
“The SCC held in the Hydro-Québec ruling that the Meiorin test must be read with a certain degree of flexibility,” noted Brunelle. “However, in the Radio Lounge decision, the appeal court takes a very strong stance and states the obligation to accommodate is extremely important. But in reading the decision one would be hard-pressed to figure out what the nightclub could have done more. Not much guidance is given to determine what is considered to be an excessive risk.”
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Ruling extends reach of taxman’s demand letters
Quebec’s tax authorities can issue demand letters and request the disclosure of financial information from third parties located outside of the province to determine whether the taxpayer is subject to the province’s tax laws, ruled Quebec Superior Court.
The ruling illustrates the daunting challenge taxpayers face when trying to quash formal demand letters and requests for information by tax authorities, particularly when they are trying to ascertain the residency of corporations or trusts in order to establish where it makes its management decisions, according to tax experts.
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Bell ExpressVu ordered to pay $82 million to Videotron over pirated television signals
The Quebec Court of Appeal has ordered Bell ExpressVu to pay over $82 million to Quebecor Inc. subsidiaries Videotron Ltd. and TVA Group Inc. for failing to prevent the piracy of its satellite signal in a ruling that clarifies the application of the business judgment rule.In a singular ruling that set aside the traditional deference shown to a trial judge’s assessment of damages, the appeal court revised a 2012 lower court decision that ordered Bell to pay approximately $339,000 to Videotron and $262,000 to TVA after it held that the trial judge’s analysis of expert evidence contained a “palpable and overriding error” when calculating the award. Quebecor estimates that the total sum will amount to $137 million including capital, interest and costs, according to a written statement.
