New labour relations legal landscape on the horizon following Appeal Court decision

A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.

“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”

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Mandatory retirement clauses breach Quebec Charter, rules court

Professional services firms that have mandatory retirement policies and provisions that require partners to divest their ownership shares solely on the basis of age are discriminatory and in breach of the Quebec Charter of human rights and freedoms held Quebec Superior Court in a ruling that has the legal community buzzing over its implications.

In a case that pitted a Montreal municipal and labour and employment law firm against its founder, the decision by Quebec Superior Court Justice Stéphane Lacoste is expected to have wider repercussions than the thorny issue of mandatory retirement, according to legal observers. Following the decision in DHC Avocats inc. c. Dufresne, 2022 QCCS 58, typical arrangements made by professional services firms in succession planning such as “unpartnering” or changing the status of their senior partners while still allowing them to work in the firm may be called into question, added legal experts. Continue reading “Mandatory retirement clauses breach Quebec Charter, rules court”

Aluminum maker discriminated against students rules Quebec appeal court

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Students who were paid less than casual and regular workers by an aluminum smelter even though they performed equivalent work were discriminated against on the basis of social condition, held the Quebec Court of Appeal.

In a decision expected to have significant repercussions in the province’s labour landscape, the Quebec Court of Appeal clarified the burden of proof when challenging the discriminatory nature of a measure, held that students fall within the notion of “social condition” under the Quebec Charter of Human Rights and Freedoms, and confirmed that discriminatory claims under the Quebec Charter do not require additional evidence of discrimination stemming from prejudice, stereotypes or social context, according to experts. Social condition refers to the rank and place an individual occupies in society.

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Damages award in Quebec comic’s discrimination case called ‘dangerous’

A controversial Quebec Court of Appeal ruling that ordered a comedian to pay $35,000 in damages to another entertainer for infringing his right to the safeguard of his dignity without discrimination after mocking his disability may lead to a chilling effect because the decision provides scant guidance over when the line is crossed, human rights law and media law experts said.

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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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French language still needs protection rules Quebec appeal court

A bid to overturn Quebec’s sign law by a group of anglophone merchants suffered yet another setback after the Quebec Court of Appeal upheld two lower court rulings that held that the French language is still vulnerable in Quebec and continues to need protection even though it has made “modest progress” in recent decades.

In a ruling hailed as significant by constitutional law experts, the appeal court underlined that jurisprudence held that the alleged violations of freedom of expression and the right to equality were justified under the Canadian Charter of Rights and Freedoms and the Quebec Charter of human rights and freedoms.

“The ruling is important because if the evidence demonstrated that the French language situation had fundamentally changed in Quebec, then the courts would have been justified to shelve the conclusions reached by the Supreme Court of Canada in its two landmark rulings in Ford and Devine,” said David Robitaille, a law professor who teaches constitutional law and human rights at the University of Ottawa. “But the burden of proof is very high.”

French is the official language of commerce and business in Quebec, and companies must have a French language name and French language signage. However, merchants may advertise in several languages including English but as long as the French language information is “markedly predominant.”

Eleven Anglophone businesses operating in the Montreal area, all of whom were charged under the Charter of the French language (C.F.L.), argued that the French language in Quebec is no longer in jeopardy, and therefore certain sections of the language charter infringed upon their fundamental rights and freedoms as guaranteed by both the Canadian Charter and the Quebec Charter. More specifically, they alleged violation of their freedom of expression and their right to equality and liberty. In other words, the merchants essentially sought to depart from the precedents established by the SCC in Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712 and its companion ruling in Devine v. Quebec (Attorney General) [1988] 2 S.C.R. 790. In these two decisions, the nation’s highest court struck down the sign law, which at the time required that all public signs be in French only, as a violation of freedom of expression. But the SCC declared in obiter dictum that “requiring the predominant display of the French language” would be justified under s.1 of the Canadian Charter and s. 10 of the Quebec Charter. The Court then proposed two constitutionally valid alternatives — one in which French could be required in addition to any other language, and the other in which French could be required to have greater visibility than accorded to other languages.

The trial judge, Court of Quebec Judge Salvatore Mascia, held that while the “visual landscape” in Quebec since the SCC’s decision in Ford and Devine was now predominantly French, that is because of the language charter. Judge Mascia noted that there would be an “obvious incongruity in using the success of the sign provisions in the C.F.L. as fodder for its dismantling. The C.F.L. cannot become a victim of its own success.” He concluded that the language situation had not changed much since the 1988 SCC rulings, and therefore he could not review the conclusions of the SCC in Ford and Devine. All but one of the 23 businesses were found guilty of violating the language charter. Quebec Superior Court Justice Claudine Roy, now a Quebec appeal court justice, upheld the decision as did the Quebec appeal court.

“The limitations on the language of commerce and business contained in the C.F.L. consist in prohibitions of a public nature which in the opinion of the legislature better the common good,” concluded appeal court justice Mark Schrager in 156158 Canada inc. c. Attorney General of Québec 2017 QCCA 2055. Chief Justice Nicole Duval Hesler and Justice Geneviève Marcotte concurred.

The appeal court also found that unilingual English websites are too subject to the French language charter. Justice Schrager found there were no differences between a commercial brochure printed on paper and one in electronic form. “If the publications on a website aim to conduct or promote business in the territory of Quebec, then they are part of the ‘visage linguistique’ of Quebec” and thus subject to the French language charter.

“In my view that’s a precedent,” said Robitaille. “In the end, the technological revolution does not change the legal debate. In other words, the new means of communication does not fundamentally change the legal analysis the courts must conduct.”

But the appeal court also appears to have “opened a door” to new legal challenges to the signage law under s. 15 of the Canadian Charter and s. 10 of the Quebec Charter, added Robitaille. The merchants argued that the joint use of French restricts Anglophones’ right to express themselves on the same basis as Francophones. This requirement in turn imposes economic and psychological burdens, they added. But Justice Schrager found that the legislation does not prevent the merchants from advertising “with their desired form and content.” It merely requires them to add a concurrent or “markedly predominant” French version if they want to advertise in English. Moreover the merchants did not provide any evidence of an additional economic burden stemming from this requirement. However, Justice Schrager noted that a “disadvantage” could “potentially arise” in the form of an additional economic burden placed on an Anglophone business required to advertise in two languages rather than one.

“If the business is thus obliged to incur additional expense for translation, website construction or printing, there might be in some cases, additional burden created,” said Justice Schrager. “Such burden might constitute discrimination for a small enterprise where the total revenue is such as to make the additional costs disproportionate and overly burdensome.”

While the appeal court seems to recognize that the French language charter potentially creates an additional economic burden for small business, Robitaille believes that the appeal court would quickly shut down that fissure in the French language charter. “In my opinion the court would come to the conclusion that the violations of freedom of expression and the right to equality would be justified,” said Robitaille.

According to constitutional law professor Patrick Taillon of the Université Laval, the ruling reveals the fragility behind the SCC’s landmark rulings in Ford and Devine. “I am pleased that the Quebec appeal court did not review the criteria established by the SCC in Ford and Devine,” said Taillon. “But one of the worries I have is that measures that are considered to be reasonable today will no longer necessarily be the case in the future, and that it will no longer be considered to be justified because of a change in context, an evolution in society, or because of technological changes.”

Damages awarded to the mother of a child who was the victim of discrimination

The mother of a child who was the victim of discrimination based on a handicap was awarded $7,500 in moral damages by the Quebec Court of Appeal in a ruling that reaffirms and advances the rights of parents, according to educational and human rights lawyers.

In a closely-watched ruling by the province’s educational sector, the Montreal School Commission was also ordered to pay an equal amount in moral damages to the child, who is afflicted with Down syndrome, after the appeal court found that it discriminated against him when it failed to implement necessary accommodations to teach him in the first two years of high school.

However the appeal court also found that the school commission did not act in a discriminatory manner when it decided that it would be in the best interests of the child, given his special needs, if he pursued his studies in a specialized school rather than a regular school. “It appeared that, from an educational standpoint, the difference between X and his classmates was too great and prevented (him) from truly integrating or socializing,” remarked the appeal court in a 22-page decision in Commission des droits de la personne et des droits de la jeunesse c. Commission scolaire de Montréal 2017 QCCA 286.

“This is an important decision because a trend has emerged where the courts refused to grant damages to parents in similar cases,” said Lysiane Clément-Major, a Montreal lawyer with the Quebec Human Rights Commission. “There have been several decisions that refused to grant damages to parents because the courts held that it was not the parents who were the victim of discrimination. This ruling is very important for the Commission because it establishes the rights of parents.”

In a decision that partly overturned a decision by the Quebec Human Rights Tribunal, the appeal court found that the parents of children who are victims of discrimination based on a handicap can claim compensation for themselves. Heeding guidance by the Supreme Court of Canada in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, the appeal court noted that while Quebec civil law does not permit compensation for indirect damage, it does allow for damages to be awarded to indirect victims. As the SCC points out, an indirect victim is someone who suffers an autonomous injury after the commission of a fault, where the damage suffered was the logical, direct and immediate result of the fault. In this case, the harm suffered by the mother arose from the from the discriminatory treatment inflicted upon her son, found the appeal court. Her despondency, stress, worry and feeling of powerlessness surfaced when her son could not assert his rights personally, and therefore it fell upon her to represent and defend the interests of her son against the school commission, added the appeal court.

“With children suffering from an intellectual deficiency that prevents them from protecting their own rights, parents are, in some respects, a way to palliate this handicap, and can be considered as the victims of the discriminatory treatment endured by their child,” said the appeal court.

But warns Bernard Jacob, a lawyer with Morency Avocats who plead the case for the Montreal School Commission, the decision does not necessarily mean that the parents of a child who suffered discrimination will themselves always be granted damages. “It’s far from automatic,” said Jacob, an expert in education law. “The ruling states that there must be evidence that the parents themselves suffered harm – that’s what’s important.”

The unanimous ruling has even wider implications for the educational sector in Quebec. The Quebec appeal court once again rejected the notion that schools face a peremptory norm that compels them to integrate and accommodate handicapped children into the mainstream school system. And just as importantly, it reaffirmed that it falls upon the Quebec Human Rights Commission to prove that a school commission did not respect the interests of a handicapped child.

“The Quebec appeal court seized the opportunity to clarify the issue of burden of proof which is how the Quebec Human Rights Commission more or less insidiously sought to reintroduce the notion that there should be a peremptory or quasi-peremptory norm that presumes discrimination has occurred unless the (handicapped) child is in the mainstream school system,” noted Montreal lawyer Yann Bernard with Langlois Avocats who represents school boards.

The Quebec Human Rights Commission argued that the Quebec Human Rights Tribunal erred by imposing on it the burden of proving that the school commission did not act in the interests of a handicapped child. It further argued that two previous rulings issued by the appeal court contradict each other, with one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2006 QCCA 82) maintaining that integrating a child is not a peremptory norm while a more recent one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2012 QCCA 988) asserting that integration is a goal that school commissions should prioritize.

The Quebec appeal court rejected the arguments, pointing out that the Tribunal “reconciled” both Quebec previous appeal court rulings, both of which followed guidance issued by the SCC in Eaton v. Brant County Board of Education, [1997] 1 SCR 241. In Eaton, the SCC held that while integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality.

The Tribunal therefore correctly held that the interests of the child outweigh the presumption of general application, said the appeal court. It follows then that a school commission must evaluate the strengths and weaknesses of the student as well as assess the advantages the student may acquire from attending regular class. When the school commission concludes that integration into a regular school setting may prove to be beneficial to the student, it must integrate the child by implementing necessary accommodations, so long as those accommodations do not represent an undue burden to the school commission. The Tribunal also correctly found that it is up to the Quebec Human Rights Commission to prove, based on the balance of probabilities, that the school commission acted in a discriminatory fashion when it decides not to integrate a child into mainstream schooling.

“The fundamental objective behind this exercise is the interest of the child,” said Jacob. “The Quebec Human Rights Commission sought to force school commissions to prove that specialized schooling was in the best interest of the student. We argued that it was up to the Commission to demonstrate that regular classes with necessary accommodations was in the best interests of the student. So in terms of burden of proof, this is an important decision.”

The Quebec Human Rights Commission is considering filing an application for leave to appeal before the SCC. It maintains that it should be up to school commissions to prove that the decision that they made regarding the kind of schooling that a handicapped student receives is in the best interests of the child. “They made the decision, and they have all of the information when they evaluated the child,” said Clément-Major.

This story was originally published in The Lawyers Weekly.

Montreal’s efforts to shut down religious ceremonies hosted by cultural centre violates Charter

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.”

In the wake of a terrorist attack that killed six at a mosque in Québec City, the “sad event underlines the importance of inclusivity in our society as does the judgment,” remarked Mario St-Pierre, a Montreal lawyer who successfully plead the case in Ville de Montréal c. Centre islamique Badr 2017 QCCS 57.

The Islamic cultural centre, in operation in the Montreal borough of Saint-Léonard since 1999, rented new quarters, with an option to purchase, in September 2004 to be able to accommodate its growing membership. A week later, the centre applied to municipal authorities for a certificate of authorization to use the edifice as a “religious centre,” something that was permitted under zoning laws at the time. In fact, before the Badr Islamic centre moved in, the building housed a funeral home with a chapel that provided religious services. On December 2004, the centre decided to purchase the building.

In 2008, the borough finally approved the certificate of authorization sought by the centre. But because the borough received complaints from local business over too much traffic during prayer time and lack of parking, municipal officials unilaterally changed the centre’s application after the fact to add that it could not host religious ceremonies. Municipal officials also introduced a new zoning by-law that would restrict new places of worship to the borough’s industrial sector.

Judge Lalonde chastised the city on several fronts, beginning with the fact that the city was “grossly negligent” for taking nearly four years to respond to the application for an authorization certificate and for singly changing the application. He also noted that the centre promptly did all it could to respond to complaints of increased traffic and limited parking space by trying to seek for new premises in the borough, without success. “The Court is of the opinion that the centre has acted in good faith and diligently by looking for a new solution to the problems voiced by its neighbours and the borough,” said Judge Lalonde in a 15-page ruling.

But more importantly, Judge Lalonde found that the centre had an acquired right to use the edifice as a place where it could host religious ceremonies. The city argued that since the Badr Islamic centre held religious activities like prayers, it was a place of worship that should be subject to the new zoning by-law that restricts new places of worship to the borough’s industrial sector. But Judge Lalonde found that just because a religious organization hosts religious ceremonies and prayers, it is “not necessarily a place of worship.” Since the Badr centre carries out community activities, and religious activities comprise of only 30-to-40 per cent of its activities, it was therefore a community centre and not a place of worship, concluded Judge Lalonde. Further, Judge Lalonde pointed out that when the building housed a funeral home it hosted religious ceremonies once or twice a week — and the city never voiced complaints about traffic or parking.

“The judge in this case applied the principle of acquired rights,” noted Sébastien Dorion, a Montreal municipal lawyer with Dunton Rainville. “The centre may have infringed the new zoning by-law but because it’s land use was legal in the past, it acquired the right to continue to do so. This case applies to centres that host religious ceremonies or places of worship but it can be applied to any type of land use. The only type of land use that can be changed and changed rapidly is when it principally deals with environmental or public security matters.”

Besides finding that the zoning change violated the centre’s acquired rights, Judge Lalonde held that by restricting religious activities to industrial sectors, it infringed on constitutionally guaranteed religious freedoms and article 3 of the Quebec Charter of Human Rights and Freedoms of members of the Badr centre. The new zoning by-law “harms and infringes more than just negligibly the capacity of members of the Badr centre to conform to their religious beliefs,” said Judge Lalonde.

“Charter rights have been found to be individual in just about all cases,” explained Julius Grey, a noted Montreal human rights lawyer. “It’s not a collective thing. However with respect to freedom of religion the Supreme Court of Canada said that one of the aspects of the individual right to freedom of religion is the right to do it together with other co-religioners.”

Grey has a number of cases involving religious organizations that are “having trouble” building mosques or orthodox synagogues. In one case involving the City of Mascouche, the Essalam Community Centre won a temporary reprieve in July 2105 pending a final decision when Quebec Superior Court Justice Brian Riordan held that the centre could continue to operate and that individuals could continue to pray within the confines of the centre.

“It’s clear that there is pressure being put by municipalities on these types of religious institutions, said Grey. “I’m going to be using the Badr decision in every one of my cases.”

But Louis-Philippe Lampron, a law professor at the Université Laval, found the judge’s reasons wanting. In Lampron’s opinion, Judge Lalonde does not really explain why the zoning by-law infringed the Charter. “It’s one thing to say that a zoning by-law infringed the Charter but it’s another thing to demonstrate whether the infringement was justified or not,” said Lampron. “Missing from his analysis is whether the violation was justified.”

Interestingly, St-Pierre never plead that the City treated his clients in a discriminatory fashion because they were Muslim. “There was no evidence that they were treated that way because they were Muslim,” said St-Pierre. “But as a taxpayer, as an owner of a building who applies for a permit, the city has an obligation to be diligent and communicate rapidly with the owner if they have concerns over the land usage.

Quebec court rules that religious marriages do not necessarily carry any legal obligations

A controversial Quebec Superior Court decision that ruled that religious marriages do not necessarily carry any legal obligations under civil law may have alarming and sweeping consequences, according to family law experts.

The “disturbing” ruling creates a new category of civil status in Quebec, undermines long-held views of religious marriages, and will possibly expose women to vulnerable situations where they will be pressured into celebrating a religious marriage without the protection afforded by civil law, cautioned family lawyers.

“This ruling is very disturbing,” remarked Alain Roy, a family law professor at the Université de Montréal and head of a government-mandated committee that last year issued a 600-page report with 82 recommendations calling for sweeping reforms to Quebec’s family law regime. “It risks opening a Pandora’s box. If this ruling stands I wouldn’t be surprised if ten years from now there will be a lot of unpleasant surprises, with some women finding out that they are not married under civil law.”

In a ruling that has completely baffled family lawyers, Judge Christiane Alary held in Droit de la famille — 16244, 2016 QCCS 410 that a minister of religion who performs a religious marriage does not have to send a declaration of marriage to the Registrar of civil status of Québec. Couples however who pursue this avenue would not be recognized as being legally married under civil law and would therefore not benefit from the legal protections granted to married couples, warned family lawyers.

Family lawyers are just as perplexed by the stance taken by the Quebec Attorney General who successfully argued that a religious celebrant can perform a  religious marriage that does not necessarily lead to “civil effects.” (The Attorney General declined to issue comments over its stance).

“The judgment is blatantly wrong in law,” stated renown Montreal family lawyer Anne-France Goldwater of Goldwater, Dubé. “And shame on the Attorney General of Quebec for arguing that. If you read the sequence of articles from 365 to 375 of the Civil Code, a celebrant has no choice. Once he has performed the marriage he draws up a declaration of marriage and sends it without delay to the Registrar of civil status.”

In Quebec, a declaration of marriage or civil union is mandatory under the Civil Code of Quebec, and it must be filed before the Registrar of civil status, otherwise the marriage will not be recognized, points out Roy. Article 118 of the Civil Code stipulates that the declaration of marriage has to be made without delay to the Registrar by the person who solemnized the marriage while article 366, among other things, authorizes ministers of religion to solemnize marriages. According to Roy, a minister of religion then is not only a “religious officer” who must solemnize a marriage that conforms to his faith’s rites but also a “civil official” who has no choice but to forward “without delay” the declaration of marriage to the Registrar.

“I admit that I do not understand her understanding of the Civil Code,” remarked Roy. “Would it be acceptable for a notary who celebrates a marriage to not send the declaration of marriage to the Registrar? Of course not. From the moment that a religious officer is conferred with a civil status to solemnize a marriage, he has no discretion but to send the declaration of marriage to the Registrar.”

According to Michel Tétrault, a lawyer and author of several books on Quebec family law, a religious marriage celebrated with a minister of religion who does not transmit the declaration of marriage to the Registrar is not legally recognized as a marriage under Quebec law. “Marriage is an institution that the courts take very seriously and they strive to ensure that the rights and duties of spouses are fulfilled and respected,” said Tétrault. “A marriage therefore must necessarily involve commitments compatible with public policy. It must lead to the creation of a matrimonial regime, whatever form it may take. When a religious union is celebrated but the Registrar does not receive a declaration of marriage, it has no civil effect.”

The case involves two accountants who married in a Catholic church. After 11 years of marriage, the man, a Baptist, asked for a divorce and then an annulment of their union. He argued that articles 118 and 366 of the Civil Code were unconstitutional and breached both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. He maintained that people who are not religious have a choice to live together, and therefore able to establish between themselves financial and patrimonial agreements that suit their needs. He further argued that people of faith do not have that option because as soon as they are married religiously there are obligatory rules that kick in that dictate the sharing of matrimonial patrimony and matrimonial property.

His challenge was rejected, albeit unsatisfactory and erroneously, according to Université of Montréal constitutional law professor Stéphane Beaulac. But more importantly, Beaulac believes that the decision opens the door to uninformed consent. In Quebec, future spouses must be able to give free and enlightened consent before marrying. “The big concern is that it will open the door to situations where there will be uninformed consent and situations where a spouse – usually women — will face undue pressure to marry religiously without receiving the protection afforded by the civil law,” said Beaulac, who believes that the decision creates a new category of civil status in Quebec – a religious marriage without civil consequences.

The decision leaves many unanswered questions around informed consent and the legal duties of ministers of religion, added Roy. Religious institutions such as the Catholic Church have always worked under the premise that a minister of religion who performs a religious wedding was legally obligated to send a declaration of marriage to the Registrar. But while that no longer appears to be the case, the judgment does not stipulate whether ministers of religion are legally compelled to inform couples of the new option available to them. Nor does it provide clues on how ministers of religion will ensure that the spouses have given their free and enlightened consent under this new scenario. “How will it work?” asks rhetorically Roy, adding that. “Will the minister of religion who performs a religious wedding automatically send a declaration of marriage to the Registrar? Or will he send it only at the request of the spouses? If he does not send a declaration of marriage at the request of the parties, how will he ensure that the validity of their consent? The infrastructure is not in place following this decision to ensure the integrity of consent.”

Roy believes that the ruling provides the Quebec government with an ideal opportunity to implement one of the recommendations made by the government-mandated committee that proposed changes to Quebec’s family law regime. Besides repealing the concept of civil union, the committee recommends that couples without children be left to define the contractual arrangement they would like to live under, whether in a common-law relationship or a regular marriage. But couples who choose to opt out of the legal consequences under civil law of their marriage would have to formalize their agreement by a notary, added Roy.