Dominic Lacroix and Sabrina Paradis-Royer lived the good life, while it lasted. He leased a $140,000 luxurious Mercedes Benz and bought a T-Rex, a three-wheeled sports car manufactured by a now bankrupt Canadian company. He purchased a $2.52 million home in a chic neighborhood in Quebec City, and then poured nearly half a million dollars in renovations. And he amassed a healthy fortune, hovering around US$3.3 million, not counting 1,677 bitcoins and other virtual currencies, in the span of a couple of months.
Quebec Superior Court
-
Landmark ruling on medically-assisted death may set the stage for further challenges
A landmark ruling that invalidated the “reasonably foreseeable” death clause of both the federal and Quebec laws on medically assisted dying may lay the groundwork for further legal challenges seeking to broaden its coverage, according to legal experts.In a ruling hailed as an “elegant demonstration of sense and sensibility,” Quebec Superior Court Justice Christine Baudouin struck down the end of life requirement under section 26 of Quebec’s End-of-Life Care Act and the reasonable foreseeability of natural death requirement under the Criminal Code, holding that it breached section 15 of the Canadian Charter of Rights and Freedoms, prerequisites that prevented some people from accessing the end-of-life procedure. The federal law also contravened section 7 of the Charter.
Tags: medically assisted death -
Caregiver denied parole
Caregiver denied parole A Montreal man who was found guilty of manslaughter for killing his ailing wife in what he argued was a compassionate killing was denied parole even though he has served a sixth of his two-year sentence, minus a day.
-
Mother denied shared custody because of cannabis use
A mother of a three-year old child addicted to marijuana was denied shared custody after Quebec Superior Court held that her cannabis consumption compromised her parental skills.
In a ruling widely expected by family lawyers to be among the first of many the courts will hand down following the legalization of cannabis, Justice Jérôme Frappier held that the mother’s cannabis’ addiction, coupled with her anxiety attacks, represented a “serious risk” because she would be unable to adequately respond to the needs of her child if she had shared custody. Justice Frappier awarded custody to the father, and granted the mother visitation rights two out of every three weekends but only if she is not under the influence of cannabis or any other drug in the presence of her child.
-
Canada tax agency ordered to pay almost $5 million in damages
Canada Revenue Agency has been ordered to pay nearly $5 million in damages to two well-known Montreal businessmen after conducting a tax investigation into an offshore investment vehicle they held. -
Quebec must compensate worker who became handicapped even though he worked under the table
The Quebec government has been ordered to provide lifetime benefits based on the salary a 25-year old man was earning while working under the table before he was struck by a bullet and became invalid. -
Bank ordered to pay nearly $50,000 in damages
The Toronto-Dominion Bank was ordered to pay nearly $50,000 in damages to a Montreal businessman of Iranian descent for failing to act reasonably when it cancelled his personal and money-services business accounts without explanation.The scathing 15-page ruling by Quebec Superior Court Justice Gregory Moore illustrates yet again the reach of good faith under the Civil Code of Quebec, sheds light on TD Bank’s questionable litigation practices and tactics, and raises questions over the bank’s debatable understanding of its obligations as a financial institution dealing with economic sanctions.
-
Quebec’s plans to block unlicensed gaming sites ruled unconstitutional
The Quebec government took a gamble, and lost.
Under the guise of concern for the health and safety of Quebecers, the provincial government introduced controversial legislation that compelled Internet service providers to block unlicensed gambling websites.
It was a ruse, a move to protect their turf and increase revenues.
So concluded Quebec Superior Court Justice Pierre Nollet who held that Quebec’s effort was unconstitutional because it infringes upon federal jurisdiction on telecommunications and criminal law matters.
The contentious legislation was closely watched by other provinces who have online gaming offerings. Much is at stake. H2 Gambling Capital, a leading supplier of gambling data and market intelligence, predicted that the value of the global online casino and bingo market would surge to approximately US$13.5 billion by 2018, representing a compound annual growth rate of more than 10 per cent from 2014.
Or as renown Montreal gaming lawyer Morden Lazarus told me: “The provinces have decided that they want to get into online gaming and they want to be able to generate these revenues for their own benefit. The Quebec government is leading the charge.”
The decision may have wider implications, according to Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and E-commerce Law. A coalition of companies including broadcasters like the CBC, telecoms (including Bell Canada) and creative groups have asked the federal regulator Canadian Radio-television and Telecommunications Commission (CRTC) to create an agency that blocks websites with illegal content.
But Judge Nollet noted that the 1993 Telecommunications Act enshrines the concept of net neutrality, and requires the CRTC to block sites only under strict circumstances.
“In the Court’s opinion, section 36 (of the Act) does not permit telecommunications companies to modify signals, whether legal or not, except in certain cases provided for in the regulatory policy such as the power to modify the signal to eliminate network threats,” said Judge Nollet in Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159.
The link to network threats is important, said Geist in a blog posting, because “supporters of the Bell site blocking plan (who argue that it does not implicate the net neutrality rules) cite a 2009 CRTC net neutrality decision reference to illicit materials, which they claim could include copyright infringing materials.
“I argue that the reference ‘clearly refers to network threats, not the content of the materials.’ The court in this case agrees with the need for a link to network threats. The illegality of content – whether copyright infringement or online gambling – does not go directly to the security and integrity of the network.”
Tags: online gambling -
Orthopaedic surgeon ordered to pay $100,000 to patient after back surgery
An orthopaedic surgeon was ordered by a Quebec court to pay a Quebec City man $100,000 in non-pecuniary damages after he was found to be at fault for one of three back surgeries he performed on the patient.
Dr. Jean-François Roy, one of a handful of Canadian orthopaedic surgeon capable of performing disk prosthesis’, a procedure that is less popular than spinal (vertebrae) fusions, was sued by Daniel Tremblay, a fifty-something entrepreneur, and his wife sued for $2.2 million for three back surgeries he carried out. Tremblay, afflicted with back pain since 2003, alleges that he suffered harm because of the surgeries.
But in a 35-page ruling that highlights the challenges patients face when launching a medical malpractice suit, Quebec Superior Court Justice Daniel Dumais held that Dr. Jean-François Roy was at fault for only the second surgery he conducted on Tremblay.
Dr. Roy diagnosed Tremblay with spinal stenosis, a narrowing of the spaces within the spine, which can put pressure on the nerves that travel through the spine, and performed a disk prosthesis’ operation on Tremblay on September 2011. Tremblay was told that in approximately 90 per cent of the cases, 50 per cent of patients got better. Some eight per cent though suffered “significant pain.”
Tremblay was one of the unfortunate ones; his disk prosthesis dislocated, the first time that Dr. Roy says he saw this take place. A second surgery was performed a month later: replacing the prosthesis was impossible so Dr. Roy removed the prosthesis and put in its place a stand-alone intervertebral fusion cage. Made from various materials, including metal or carbon graphite fiber, the cage is placed in the inter-body space and packed with bone graft to help stimulate bone growth. But that surgery too failed to provide Tremblay with relief from pain. A third surgery followed suit, with similar results.
A medical malpractice suit generally raises three issues, points out Justice Dumais. First, it must be determined if the medical professional or establishment committed a fault. Second, it must be proven that the medical procedure, professional and/or establishment caused harm. And finally, if fault is proven, the determination of compensation must be evaluated.
“The hoped result was not obtained,” said Justice Dumais in Tremblay c. Roy 2018 QCCS 2486. “The Court agrees. But it is insufficient to conclude that a (medical) intervention was not appropriate. More than one option existed. The one chosen did not work out. That is regrettable.”
But Justice Dumais held that Dr. Roy should have been more diligent when he performed the second surgery on a patient. The disk prosthesis, which was implemented in the first surgery, dislocated for reasons unknown. That revealed a problem. And Dr. Roy should have done more to figure out what was the cause of the dislocation, added Justice Dumais. He could have consulted with another colleague, sought advice, conduct further tests, or reach out to the manufacturers who produce the medical devices. “None of this was done,” found Justice Dumais. “The Court finds that there was a fault in the preparation and execution of the second surgery.”
The award granted to Tremblay falls in line with jurisprudence. A 2013 book entitled After the Error: Speaking Out About Patient Safety to Save Lives reveals the daunting odds patients face to win a medical malpractice suit in Canada. Slightly more than 4,500 lawsuits were filed against Canadian doctors from 2005 to 2010, reveals the book. Of those, nearly 3,100 were dismissed or abandoned “because the court dismissed the claim or the victim or the victim’s family quit, ran out of money or died before trial.” Out of 521 cases that went to trial, only 116 led to a judgment that favoured the patient, with the median damage awarded $117,000.
More recently still, retired Justice Stephen Goudge concluded that medical malpractice cases take too long and cost taxpayers too much, with total case costs surging by up to 700 per cent, unadjusted for inflation, between 1990 and 2015.
“As medical liability costs rise, the cost of medical liability protection necessarily rises,” wrote Goudge in a 65-page report Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review.
“This, and concerns about the length of time required for individuals to obtain compensation for injuries due to medical mistakes, suggest that changes to the medical liability aspect of the civil justice system may be needed to ensure the long-term viability of the way medical liability protection is presently provided in Ontario.”
Tags: medical malpractice -
Town ordered to pay legal expenses of former mayor
A small Quebec town was ordered to pay the legal expenses of its former mayor after Quebec Superior Court held in a harshly-worded decision that he did not deserve the treatment he suffered.
Former Saint-Constant mayor Gilles Pépin was the target of a series of anti-corruption raids on February 2013 and faced charges of fraud, breach of trust, municipal corruption and conspiracy. The day before a preliminary hearing was scheduled to take place, the matter was abruptly dropped.
Pépin then sued the town for $92,000 for legal fees he incurred to defend himself, relying on article 606.6 of the Quebec Cities and Towns Act, which states that a municipality will assume the defence or representation of an accused by reason of the person’s alleged act or omission in the performance of his duties as a member of the council or as an officer or employee of the municipality. The town refused, asserting that the acts committed by Pépin were not committed in the performance of his duties, that Pépin did not face a trial and was therefore not acquitted, and that perhaps the investigation into Pépin was not yet completed.
Quebec Superior Court Justice Kirkland Casgrain was hardly impressed. “Pépin was not acquitted?” rhetorically asked Justice Casgrain in Pépin c. Ville de Saint-Constant 2018 QCCS 2165. “Hold on. He was never deemed to be even accused. What else is needed? That Pépin prove that he was innocent of accusations that were never laid against him? The dossier against him may not be completed? What does the defense lawyer want? A declaration by the (provincial anti-corruption unit) that it will not charge Pépin?”
It turns out that Pépin was the victim of dirty politics. An investigation was launched against Pépin by the Quebec anti-corruption unit after being denounced by a rival political organizer.
The town was ordered to pay him $92,600 in legal fees he incurred to defend himself, and $35,000 for legal expenses he incurred to launch the civil suit.
-
Quebec judge certifies class-action lawsuit against Just for Laughs founder Gilbert Rozon
A class action launched by 20 women who allege they were sexually assaulted or harassed by the founder of Just for Laughs was certified by Quebec Superior Court.In a 36-page ruling, Quebec Superior Justice Donald Bisson highlighted that class actions have “shown their value” in sexual assault cases because they have allowed “hundreds of victims” access to justice.
“If the plaintiff was not authorized to file the current class action, it is highly likely that many victims would be deprived of their ability to exercise their rights,” said Justice Bisson in Les Courageuses c. Rochon 2018 QCCS 2089. A class action “like this one allows all victims to understand that they are not alone, that the assaults are not their fault and that if they have the courage to come forward to denounce the sexual abuse committed against them, they will make the versions of the other victims more likely.”
Gilbert Rozon, also the subject of a criminal investigation, has denied the allegations. He unsuccessfully argued that “the fact of being charming while using his power was not in itself a fault,” that it was necessary to question “the consent of the alleged victims which happens in their heads and for which Rozon is not responsible,” and that the class representative — Patricia Tuslane, the only one to publicly come forward – did not offer material evidence to buttress her allegations.
The class action is seeking up to $400,000 in moral damages for each individual complainant, and a total of $10 million for the group in punitive damages.
-
Failure to protect solicitor-client privilege leads to acquittal of alleged Mafiosi
Two alleged Montreal Mafia leaders were acquitted of gangsterism and drug trafficking charges after Quebec Superior Court excluded wiretap evidence gathered by a joint police task force because they failed to put in place sufficient measures to prevent the interception of conversations between lawyers and clients.In a ruling that will almost “certainly” be used by Quebec police forces as a wiretap procedural guideline, Quebec Superior Court Justice Éric Downs provides guidance on electronic surveillance, castigates police for failing to do enough to protect solicitor-client privilege, and warns that it would be imprudent to view his ruling as an inducement to consider law firm as safe havens to conspire and plan crimes, according to criminal lawyers.
-
Court awards former Quebec paramedics $1.2M over subway scare
Montreal’s transit authority has been ordered by Quebec Superior Court to pay two former paramedics more than $1.2 million for a scare that left them unable to work in their profession.The ruling highlights one of the singular situations where an injured worker can bring a civil suit even though one of the cardinal principles behind Quebec’s occupational health and safety regime is that workers cannot bring a civil liability suit against their employer because of the injury.
“This is an interesting ruling because civil actions for damages to recuperate losses that exceeds the benefits received under the Act are very rare,” remarked Laurence Bourgeois-Hatto, a Montreal labour and employment lawyer specializing occupational health and safety matters.
-
Suspected PlexCoin founder sentenced to two months in prison
Dominic Lacroix, a Quebec City businessman believed by Quebec’s financial watchdog and the U.S. Securities and Exchange Commission to be behind PlexCorps, a controversial cryptocurrency start-up accused of fraudulently selling up to $15 million of tokens, was sentenced to two-month jail term and fined $10,000 for contempt of court.“The defendants fully understood the orders but intentionally and voluntarily disrgarded them,” said Quebec Superior Court Justice Marc Lesage in a 15-page ruling dated December 8th. “The Court finds that this is a case of exteme case of contempt and bad faith by the defendants.”
-
Gun lobby loses bid to thwart Quebec long-gun registry
The National Firearms Association and a Quebec-based pro-gun lobby group failed to put a stop to Quebec’s provincial long-gun registry after Quebec Superior Court held that the registry was constitutionally valid.
In a 26-page ruling that did not take any constitutional experts by surprise, Quebec Superior Court Justice Lukasz Granosik held that Bill 64, Firearms Registration Act, does not infringe on federal jurisdiction because it essentially is about public safety, which is related to provincial jurisdiction on issues of property and civil law as well as the administration of justice.
“The Supreme Court of Canada held (in Quebec (Attorney General) v. Canada (Attorney General), [2015] 1 SCR 693) that the federal government has the jurisdiction to have its own gun registry,” noted Stéphane Beaulac, a constitutional law professor at the Université de Montréal. “But it also held that there is nothing to prevent provinces, by virtue of its jurisdiction on property and civil law, to legislate such matters which includes having a provincial registry.”
The Quebec government began plans to establish its own long-gun registry after the federal Conservative government abolished the federal database for non-restricted guns in 2012. The province was embroiled in a legal battle against Ottawa in a bid to preserve Quebec data from the federal registry, but it lost its case before the SCC in March 2015. In the so-called long-gun registry decision, Quebec (Attorney General) v. Canada (Attorney General), [2015] 1 SCR 693, the SCC held that the Quebec government had no right to insist that the federal government hand over — before destroying all data in the now defunct federal long gun registry –to it data relating to Quebec resident long-gun owners. In the meantime, the Quebec government enacted Bill 64, which is still not in force.
The gun lobby sought an injunction against Bill 64, arguing that it was ultra vires because it infringed on the federal jurisdiction on criminal matters, as per s. 91(27) of the Constitution Act, 1867. They also maintained that article 13 of the Quebec Firearms Registration Act should be declared void because it runs into conflict with the federal Firearms Information Regulations (Non-restricted Firearms).
Justice Granosik dismissed both arguments. Following guidance by the SCC in a couple of decisions, notably in Canadian Western Bank v. Alberta, [2007] 2 SCR 3, Justice Granosik began his analysis of the constitutionality of Bill 64 by considering its purpose and its effects to determine whether it is a “colourable,” that is, whether the law may say that it intends to do one thing and actually does something else.
Justice Granosik notes that the SCC held in Reference re Firearms Act (Can.), [2000] 1 SCR 783 that the regulation of guns as dangerous products is a “valid purpose within the criminal law power.” But, he adds, that in order for a law to be classified as a criminal law, it must possess three perquisites: a valid criminal law purpose backed by a prohibition and a penalty.
Justice Granosik found that Bill 64 does not prohibit the possession of firearms but rather seeks to provide the Quebec Minister of Public Security with information over the existence of firearms and allow public authorities to know where they are located.
“There is reason therefore to conclude that the Act seeks to make the work of law enforcement safer and the implementation of court orders more effectively,” held Justice Granosik in Association canadienne pour les armes à feu c. Procureure générale du Québec 2017 QCCS 4690. “There is no compelling evidence, neither intrinsic or extrinsic, to conclude that the law is colourable.”
He also highlighted that the Attorney General of Canada did not intervene in the case, suggesting that it does not contest Quebec’s powers to adopt its own long-gun registry.
“I am hugely disappointed and am in disagreement with the judge’s reasons,” remarked Guy Lavergne, a Montreal lawyer who plead the case for the gun lobby. “I argued that the registration of firearms has always been viewed as falling under criminal law jurisdiction in Canadian constitutional law. Although there are aspects of firearms that may fall under provincial jurisdiction, this is not one.”
After heeding guidance from the SCC’s Alberta (Attorney General) v. Moloney, [2015] 3 SCR 327 to determine whether the “operational effects” of provincial legislation are incompatible with federal legislation, Justice Granosik Justice Granosik held that article 13 of the Quebec Firearms Registration Act does not run into “real conflict” with federal legislation. He found that federal legislation targets the “obtainment and maintenance of firearm permits” while the Quebec law deals with registration and management of stocks.
According to constitutional law professor Maxime St-Hilaire, the gun lobby was doomed to fail in its bid to stop Quebec from establishing its own gun registry. He points out that the SCC already dealt with the issue, the federal government is not opposed to provincial governments enacting its own gun registry laws, and arguments that rely on the doctrine of federal paramountcy were destined to fail in this case.
“I am not at all surprised by the decision,” said St-Hilaire. “The federal government never held that the Quebec government could not create its own firearm registry. Then there’s the long-gun registry decision by the SCC which held that provinces could establish their own firearm registry.”
The gun lobby is considering filing an application for leave to appeal.
“This decision could open the door for other provinces to follow suit but so far no other province has expressed a willingness to go ahead with a provincial registry,” said Lavergne. “But political landscapes do change, and this is a highly political matter. That is one of the fears that it could give rise to additional legislation emanating from the provinces.”
This story was originally published in The Lawyer’s Daily.
