Law in Quebec

News about Quebec legal developments

Quebec Charter of Human Rights and Freedoms

  • 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. (more…)

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  • Aluminum maker discriminated against students rules Quebec appeal court

    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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  • Quebec Superior Court upholds secularism bill exempts English-language schools

    Quebec’s controversial secularism law that bans religious symbols from being worn by government employees was largely upheld by Quebec Superior Court thanks to the provincial government’s use of the notwithstanding clause even though it disproportionately harms women, and particularly Muslim women.

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  • Landmark ruling for trans rights

    Quebec, once on the forefront of trans rights, is now joining the ranks of most Canadian jurisdictions after Quebec Superior Court declared unconstitutional several articles of the Civil Code of Quebec that discriminated against trans and non-binary people.

    In a long-awaited ruling by trans, non-binary and intersex people, the “critically important” decision affirms that having your identity acknowledged and recognized by the State is a core aspect of the right to equality and the right to dignity, assert legal experts. The judgment, lauded as the most sweeping in its scope in Canada involving the constitutional rights of trans people, found that six provisions of the Civil Code violated rights guaranteed by the Canadian Charter of Rights and the Quebec Charter of Human Rights and Freedoms.

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  • Quebec appeal court orders federal AG & RCMP to pay $400,000 in damages to couple

    The Attorney General of Canada and two RCMP officers were ordered by the Quebec Court of Appeal to pay $400,000 in punitive damages after they published and disseminated false information about a Laval couple who were wrongly charged in Canada’s first human trafficking case.

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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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  • Municipal bylaw banning billboards is constitutional

    Three of Canada’s biggest sign companies have six months to demolish dozens of billboards in a trendy Montreal borough after the Quebec Court of Appeal held that a municipal bylaw banning outdoor advertising panels represents a minimal infringement on freedom of expression.

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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.

     

     

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  • 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.

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  • 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.”

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  • 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.

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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.

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  • 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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Law in Quebec
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