Newfoundland and Labrador suffered back-to-back legal setbacks in its long-running energy feud with Hydro-Québec after Quebec courts held that the provincially-owned utility was under no obligation to renegotiate a controversial 1969 agreement and that it was entitled to purchase all but a fraction of the power generated by Churchill Falls power plant. (more…)
Quebec Court of Appeal
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Hydro-Québec wins back-to-back legal skirmishes in longstanding energy dispute over Churchill Falls
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Transports Quebec ordered to pay $1.6 million to subcontractor
The Quebec Ministry of Transport was ordered to pay a subcontractor $1.6 million for roadwork even though it had shown signs of premature wear and tear after the Quebec Court of Appeal held that the subcontractor did not face a warranty of durability.In a ruling that provides guidance over contractual notions such as obligation of result, performance of work and warranty of durability, the Quebec appeal court reaffirms a contractor’s positive obligation to provide information to third parties, according to experts in contract and construction law.
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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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Quebec government discriminated against jurists on maternity leave, rules appeal court
Quebec government lawyers and notaries, forced back to work after Canada’s longest public sector strike, won a legal battle against the provincial government after the Quebec Court of Appeal held that the government discriminated against jurists on maternity leave.In a nuanced decision that will provide comfort to both employers and labour organizations, the appeal court found that it is not discriminatory if employers under certain circumstances “distinguish” for purposes of compensation between employees who provide services to employers and those who do not such as those in maternity or sick leave. But the appeal court added that it is discriminatory if employers provide different compensation to different groups of employees who do not provide services to employers, if the distinction was based on prohibited grounds.
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Quebec appeal court sets high bar for leave to appeal in class action certification cases
The Quebec Court of Appeal upheld a ruling that certified a class-action lawsuit following an outbreak of Legionnaires’ disease in Quebec City in 2012 that is believed to have contributed to 14 deaths and lead 181 others to become ill from bacteria found to be in a cooling tower of a downtown office building.Tags: class actions -
Appeal court orders seized material to be sealed in Uber case
Nearly six months after 20 Revenue Quebec officials raided the Montreal offices of Uber Canada Inc. as part of a tax investigation, the popular ride-sharing service won a legal battle against the provincial taxman after the Quebec Court of Appeal overturned a lower court ruling and held that the seized evidence must be sealed.The succinct 12-page ruling will likely pave the way for more applications for impoundment as the courts and tax authorities grapple with the challenges posed by e-commerce, disruptive business models, and technology, according to tax lawyers.
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Appeal court authorizes class action against Mazda
A class action against an automobile manufacturer that was dismissed by a lower court was partially overturned by the Quebec Court of Appeal after it held that Mazda Canada Inc. failed to disclose “important information” to consumers in a timely manner.
Hailed as a victory for consumers, the appeal court’s decision bucks the nationwide growing trend against economic loss based tort claims, and serves a clear reminder to manufacturers that it is in their best interests to promptly inform consumers over “important facts” regarding their products and to fix products afflicted with latent defects expeditiously, according to consumer law experts.
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Revenue Quebec ordered to pay $2.4 million
Revenue Quebec was ordered to pay $2.4 million, including $1 million in punitive damages, to a Montreal business after the Quebec Court of Appeal found that the provincial fiscal authority abused its powers and acted maliciously and in bad faith.
In a decision that sternly rebukes the provincial tax authority for abusing its “extraordinary powers,” the appeal court ruling held that Revenue Quebec owes a general duty of care and good faith to taxpayers as well as an “obligation to compensate” taxpayers who were the victims of wrongful conduct, according to tax lawyers.
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Ruling clarifies circumstances under which securities can be ordered
Tobacco companies suffered a second legal setback in less than a month after the Quebec Court of Appeal ordered two cigarette makers to set aside nearly $1 billion in security, the largest ever in the province’s history, to ensure that money is available to pay victims who won a landmark $15.5 billion class action lawsuit earlier this year.In a ruling that clarifies the exceptional circumstances under which securities can be ordered, the appeal court ordered Imperial Tobacco Canada Ltd. to pay $758 million in seven quarterly instalments and Rothmans, Benson & Hedges Inc. $226 million in six quarterly instalments, beginning in December until next year. If the tobacco manufacturers are successful in having the $15.5 billion judgement overturned on appeal, the security will be returned to them. If not, it will be available for distribution to victims who launched the class action suit. (A motion for security was not sought against JTI-MacDonald Corp. because one of the lawyers became ill).
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Tough on crime agenda suffers another blow
The federal government’s tough-on-crime agenda suffered another blow after the Quebec Court of Appeal ruled that a legislative amendment slipped into the 2012 omnibus bill that effectively ended mandatory parole board hearings following a suspension, termination or revocation of parole or statutory release was of no force in the province.In a highly-anticipated ruling by the prison law community, the Quebec Court of Appeal held that the legislative change, a cost-savings measure expected to recoup $1.6 million, breached rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. In a similar vein, the Supreme Court of Canada last year ruled that a federal law passed in 2011 that retroactively abolished accelerated parole review for offenders who had already been sentenced violates a person’s Charter right to not be punished again.
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Tobacco healthcare recovery cost law constitutional, rules appeal court
Tobacco companies lost another legal battle in Quebec after the appeal court sided with the provincial government in a ruling that opens the door province to sue tobacco companies to recover billions in healthcare costs related to smoking.Nearly three months after a landmark ruling ordered three leading Canadian tobacco companies to pay $15.5 billion in moral and punitive damages to Quebec smokers, the Quebec Court of Appeal upheld a lower court ruling that found that while the province’s healthcare recovery legislation does deprive tobacco companies some traditional means of defence it does not affect their right to a fair trial.
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Quebec appeal court imposes duty to investigate on business seeking input tax credits
Less than a year after the Federal Court of Appeal held that a supplier’s delinquent fiscal conduct is irrelevant to an input tax credit claim, the Quebec Court of Appeal has muddied the legal waters with a controversial decision that affirmed that Quebec business are expected as part of an effort to impede tax evasion to conduct due diligence on suppliers in order to be able to obtain input tax credits.In a highly-awaited ruling that startled tax professionals, the appeal court held that business are required to do more than simply confirm the validity of a supplier’s GST/HST registration number and confirm that invoices conform to the current legislation and regulations to qualify for input tax credit (ITC) claims. Business have the added duty to authenticate invoices used to claim ITCs originate from the person that actually performed the service, held the appeal court.
“This is a very important ruling for the business and tax world because in a way it can change the way businesses operate in Quebec,” remarked Alexandre Dufresne, a tax lawyer and managing partner of Spiegel Sohmer in Montreal. “It’s unfortunate but you hear more and more people saying I am going to bring my operations in other jurisdictions because the administrative burden is just too heavy in Quebec. It’s reached that point.”
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Court rules there are limits to reverse or correct unintended tax consequences
Taxpayers do not have a general license to “travel back to through time” with the benefit of hindsight to reverse or correct unintended tax consequences of commercial dealings, held the Quebec Court of Appeal in two separate but related rulings.
The rulings effectively limit the scope of the so-called rectification remedy in a tax context under civil law, according to tax experts. A powerful legal instrument, rectification essentially allows taxpayers, under certain conditions, to correct errors in legal documents or instruments that do not reflect the true intention of the parties, and which lead to unintended consequences. Rectification allows the parties to “fix” the terms of the transaction so that the intended tax consequences are achieved. Its effect is retroactive.
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Another blow for Mr. Big operations
A Quebec man convicted of the first degree murder of his pregnant wife following a Mr. Big operation police sting operation is now a free man after the Quebec Court of Appeal found that his confession was obtained under duress, the second time this year that the appeal court has taken a dim view of the elaborate police strategy.“Thousands and thousands of dollars are invested by the state in these Mr. Big operations to try to elicit a confession,” remarked Montreal criminal lawyer Jean-Philippe Marcoux. “And after all that, for it to reach the Court who ordered a stay of proceedings, it is a dismal failure.”
