Homegrown cannabis restriction reinstated by Quebec Appeal Court

A lower court ruling that struck down a provincial ban on homegrown cannabis was overturned by the Quebec Court of Appeal after it held that the province was acting within its jurisdiction over property and civil rights when it decided to regulate the market by creating a state monopoly to minimize the “harmful” effects of cannabis on health.

Thanks to the Quebec Appeal Court ruling, Quebec along with Manitoba are the only provinces that still have in place a strict regulatory approach that bans residents from growing recreational cannabis at home in spite of the federal law, Cannabis Act, allowing individuals to grow up to four plants.

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Adjudicator awarded $426,000 in damages

A rental board adjudicator who was threatened to be fired by the Quebec government has been awarded $426,000 in damages after the Quebec Court of Appeal overturned a lower court ruling and held that he was unjustly forced to resign.

In a ruling that clarifies the notion of consent, the Appeal Court issued a stern rebuke to the Quebec government, reminding it that only the Quebec Administrative Justice Council can remove an adjudicator from the bench. The Appeal Court also censured the provincial government for threatening to commit an illegal act and disregarding the principle of judicial independence.

Louis-André Hubert, the ex-spouse of former Quebec Justice Minister Stéphanie Vallée, was appointed as an adjudicator in the fall of 2015. But shortly after his appointment, two unflattering newspaper articles were published about him. The Associate Secretary General in charge of the Secrétariat des emplois supérieurs asked him to resign, and warned him that if he did not the government would pass an order-in-council to revoke his appointment. Hubert resigned shortly thereafter but decided to bring the matter before the courts, arguing that his consent had been vitiated by fear.

The trial judge dismissed his case, holding that it was “inconceivable” that Hubert as a lawyer did not know that the government could not revoke from the bench through an order-in-council. The trial judge, while acknowledging that the situation was difficult, held that Hubert acted freely and knowingly when he resigned.

The Appeal Court overturned the lower court decision and found that “when the government indicated that it wanted to use a means that the law did not permit, any coercion that existed became illegitimate.” The application of Article 1403 of the Civil Code of Québec requires a finding that the government threatened to commit an illegal act and that this threat induced fear that vitiated the appellant’s consent.

“Even though the order-in-council was not passed, the question of its legality opens the door to the application of art. 1403 C.C.Q. When OKthe government indicated that it wanted to use a means that the law did not permit, any coercion that existed became illegitimate,” held Quebec Court of Appeal Justice Dominique Bélanger in a unanimous decision in Hubert c. Procureur général du Québec, 2021 QCCA 1527.

Whether the person being threatened recognizes the legality of the action that will be carried out is unimportant, added Justice Bélanger. What is relevant is that the senior civil servant threatened to use illegitimate means against Hubert, and it was the “very appearance” of this threat that created the fear that vitiated the consent.

This “is the essence of abuse of power. It is the very manifestation of the threat whose purpose or means are illegitimate that creates the fear that vitiates consent,” added Justice Bélanger.

Obligation to carry mobile phone does not exist, holds divided appeal court

Obligation to carry mobile devices does not exist

A divided Quebec Court of Appeal may have opened the door towards a positive obligation to carry a mobile phone when doing physical outdoor activities as a precaution against foreseeable risk or face the possibility of being held to account for a contributory fault, according to experts.

In a ruling that examines the principles of contractual civil liability, a dissenting Quebec Court of Appeal judge held that a mountain biker who sustained injuries after he fell from a chairlift had committed a contributory fault by failing to have a cell phone when he embarked on the lift.

“While it is a dissenting opinion, it will open the door to hold that it is a fault not to have a mobile phone,” remarked Patrice Deslauriers, a law professor at the Université de Montréal who teaches civil liability. “That goes too far. Will I now be obliged to check the status of the battery of the cell phone? We are not yet at a stage in society where we are obliged to carry with us a cell phone.”

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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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Quebec Court of Appeal expresses frustration over systemic delays in securing trial transcripts

The Quebec Court of Appeal, exasperated by provincial government inaction, delivered a rare but stinging rebuke over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants which “regrettably” puts into question the proper administration of criminal justice in Quebec.

Calling for a paradigm change in approach, the Quebec Court of Appeal issued clear and explicit guidance over the preparation and production of trial transcripts as litigants in criminal proceedings should “not be left without judicial remedies” when they face unreasonable appellate delays resulting from the “state’s inaction.”

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Right to contact counsel of choice

Right to contact counsel of choice

The right to contact counsel of choice was at the heart of two Quebec Court of Appeal decisions. In R c. Blackburn-Laroche, 2021 QCCA 59, the appellate court held that police officers had not made the necessary effort to reach the lawyers chosen by the respondent. As a result he was deprived of a reasonable opportunity to contact them. In another case, R. c. Tremblay, 2021 QCCA 24, the appeal court held that “the police did not fulfill their well-known duty to facilitate the respondent’s exercise, at the first reasonable opportunity, of her constitutional right to retain and instruct counsel.”

Quebec appeal court ruling opens the door for former common-law spouses to claim unjust enrichment

A wealthy businessman was ordered to pay $2.4 million to his former common law-former partner as he left the relationship with a disproportionate share of the wealth accumulated by the parties’ joint efforts, held the Quebec Court of Appeal.

The appeal court decision, the latest in a slow but steady line of rulings that signals a steady evolution in the way Quebec courts are dealing with legal issues stemming from de facto couples, reaffirms that former common law spouses can make claims of unjust enrichment and be granted monetary awards when they are able to prove that the partners were engaged in a joint family venture, according to family law experts.

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Real estate transactions: exclusive use servitudes deemed invalid

Exclusive use clauses remain common in leases but they can no longer be drafted in the form of servitude agreements in transactions, following a decision by the Quebec Court of Appeal.

Exclusive use clauses have long been included in leasing agreements, such as those in shopping centres, to define the permitted uses of the leased property and prohibit or limit one tenant from carrying on the same type of business or “principal use” as another tenant. The bottom line is to protect the market within a property and ensure the commercial success of all tenants.

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