Law in Quebec

News about Quebec legal developments

Quebec Court of Appeal

  • 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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  • 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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  • 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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  • 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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  • 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.

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  • Only one kind of class action member, rules appeal court

    A lower court ruling that classified class action members into distinct categories, and would have allowed class action defendants to obtain detailed contact information of “registered” members as well as would have authorized counsel of the class action defendants to meet with “unregistered” members was overturned by the Quebec Court of Appeal in a majority decision.

    In a precedent-setting ruling that affirms the rights of class action plaintiffs and significantly restrains class action defendants from examining members of the class, the appeal court categorically concludes that there is no such thing as multiple categories of members. There are only members — including the representative and, if any, interveners — and those who chose to exclude themselves from the group.

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  • Appeal court orders new trial after expert witness changes testimony

    The Quebec Court of Appeal set aside the conviction of a second degree murder and ordered a new trial after it found that an expert witness offered a completely different conclusion during cross-examination at a jury trial compared to her written report and testimony she provided during the preliminary inquiry.

    In a clear message to expert witnesses, the appeal court held that the forensic scientist, a professional expert witness with 14 years of experience who is often called upon by the Crown to testify, should have at the very least disclosed her new conclusion to Crown counsel or to the police investigator who interviewed her before trial. “The sudden nature of her new testimony is worrisome,” said the three-judge Court of Appeal panel in Gakmakge c. R., 2015 QCCA 314.

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  • Third parties receive immunity from damages under Quebec’s no-fault insurance automobile regime

    Quebec’s no-fault insurance automobile regime leaves no place for medical malpractice suits or lawsuits alleging negligence, carelessness, or recklessness committed by third parties following a car accident, held the Quebec Court of Appeal in two separate but related rulings.

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  • Litigation privilege given same protection as solicitor-client privilege

    A provincial regulator that sought to force an insurance company to provide documents in the course of an investigation failed after the Quebec Court of Appeal held that the documents were covered by litigation privilege and solicitor‑client privilege.

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  • Former student leader acquitted of contempt of court

    A former Canadian student activist best known for his role during the 2012 Quebec student protests won an appeal reversing his contempt of court conviction after the Quebec Court of Appeal held that individuals have the right to hold strongly held convictions even in the face of a court order.

    Gabriel Nadeau-Dubois, the former spokesman of the major student organization CLASSE, was found guilty three years ago of inciting students during a television interview to strike and ignore a court order that guaranteed students access to their classrooms during the student conflict in the spring of 2012 when thousands took to the streets to protest planned tuition fee increases. He was sentenced to 120 hours of community service, which was thrown out.

    “Now we have a ruling which says that one of the things to be considered when it comes to verbal contempt of court is whether freedom of expression is threatened, and it is particularly important in matters where a person expresses disagreement with a judgment,” said Julius Grey, a leading civil libertarian and human rights advocate, who represented the Canadian Civil Liberties Association which was an intervenor in the case. “That is a major achievement, and extremely important.”

    In its 17-page ruling in Nadeau-Dubois v. Morasse 2015 QCCA 78, the Quebec Court of Appeal underlines the exceptional nature of contempt of court procedures, stressing that it is a legal remedy that should be used “sparingly.” In a case of civil contempt, the appeal court reiterated that certain elements must be established beyond a reasonable doubt: the terms of the order must be clear and unambiguous, proper notice must be given to the contemnor of the terms of the order, there must be clear proof that the contemnor intentionally committed an act prohibited by the terms of the order, and mens rea must be proven. While the order was clear and unambiguous, none of the other elements were proven in Nadeau-Dubois’ case. The appeal court held that it was not proven, “let alone proved beyond any reasonable doubt,” that Nadeau-Dubois knew about the injunction at the time of the interview. The appeal court noted that the injunction was not served to him personally and that he was not aware of its contents or scope. “Even if such knowledge had been proved, the appellant should nevertheless be acquitted because it was not demonstrated that he violated the order,” wrote Quebec Court of Appeal Justice Jacques Dufresne in a unanimous ruling.

    The appeal court held that Nadeau-Dubois neither encouraged civil disobedience nor anarchy but rather exercised his right to freedom of expression by publicly defending his controversial position. His “strong encouragement” during the interview to maintain pressure tactics through picketing did not constitute a violation of the order, added Justice Dufresne. “The right to inform as many members of the public as possible of one’s strongly held convictions in a conflict falls within the scope of freedom of expression as protected by the Canadian Charter of Rights and Freedoms and the (Quebec) Charter of human rights and freedoms, as well as the underlying right to information,” said Justice Dufresne in a key passage that will likely cited by lawyers defending individuals accused of civil contempt.

    The appeal court decision is reassuring because it makes a clear distinction between incitement to civil disobedience of a court order and public disagreement with a court decision, said Pierre Trudel, a law professor with the Public Law Research Centre at the Université de Montréal. In order for the courts to conclude that an individual incited civil disobedience of a court order, the remarks must be clear and unequivocal, added Trudel. “If the lower court ruling would have been upheld, it would have created a dangerous precedent that would have limited the right to freedom of expression because it implied that publicly disagreeing with a judgment is tantamount to inciting civil disobedience of a court order, said Trudel.

    The ruling also warns that in cases where one is accused of making remarks that infringe a court order, the courts must be even more prudent to infer incitement, noted Rebecca Laurin, a Montreal lawyer who helped to successfully defend Nadeau-Dubois. For a person to be found guilty of contempt of court, the person must have committed an illegal act (actus reus) and had the required state of mind (mens rea) for the criminal offence. Both elements of the offence, the actus reus and the mens rea, must be proven beyond a reasonable doubt, added Laurin. “The appeal court ruling states that the courts must be even more prudent in such cases because the actus reus will be demonstrated by the interpretation of the remarks, and opinions are protected by the freedom of expression provisions in the Charter and the Quebec Charter,” said Laurin. “Interpreting the remarks too liberally risks paralysing the right to freedom of expression.”

    But Maxime Roy, who represented Jean-François Morasse, a student who lodged the complaint that Nadeau-Dubois encouraged students to ignore the court injunction, forcefully argues that the ruling has created a “perilous precedent” that will make it far more difficult to find someone guilty of contempt of court. “This is not a case about freedom of expression but incitement,” said Roy, a Quebec City criminal lawyer with Thibault, Roy Avocats. “The ruling has given weapons to people to be more easily acquitted. It is a poorly founded judgment that runs against jurisprudence. Freedom of expression does not allow to acquit someone who incites (others) to not respect a court order.

    “I have the impression that the appeal court reappropriated the facts, the trial. In my opinion, there was no error of law in the decision of the judge of first instance. The role of an appeal court is not to change the verdict because they think it should have been something else. That’s what I think they did.”

    Morasse intends to file an application for leave to appeal before the Supreme Court of Canada.

    This story was originally published in The Lawyers Weekly.

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  • OSFI exchanges with insurers and financial institutions not confidential

    The Quebec Court of Appeal upheld a lower court ruling that could have a chilling effect on the flow and quality of confidential information financial institutions disclose to regulatory authorities, and even potentially undermine the “safety and soundness” of Canada’s financial system, according to business lawyers.

    In a majority decision in line with two Ontario Superior Court decisions, the Quebec Court of Appeal held that documents and exchanges between federally regulated firms such as banks and insurance companies with the Office of the Superintendent of Financial Institutions (OSFI) are protected by statutory confidentiality provisions imposed by Regulations under the Insurance Companies Act, with some exceptions. While the regulations were enacted to limit the communication of supervisory information, the appeal court found that sections 2 and 3 of the Regulations did not create an absolute prohibition on disclosure and could be subject to production in civil proceedings.

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