Law in Quebec

News about Quebec legal developments

Quebec Superior Court

  • Crown blamed after judge stays murder case

    The last time it happened a Superior Court Justice apologized.

    “I am very sorry that the system has let you down,” said Ontario Superior Court Justice Julianne Parfett last November to the mother of the deceased after she threw out a first-degree murder case against former Canadian Forces soldier Adam Picard because of excessive delays. Picard was charged for the June 2012 killing of Fouad Nayel, a 28-year old construction worker who had been missing for five months. Picard was arrested less than a month after Nayel’s badly decomposed body was found in the woods.

    In a bleak and withering assessment of the criminal justice system, Justice Parfett said that the justice system also failed “this accused and the public,” and placed the blame squarely on the shoulders of Crown prosecutors for the unreasonable delays that hampered the case.

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  • Montreal blue collar union fined $100,000 for contempt of court

    Montreal’s blue collar union and its controversial president and executives were sentenced to pay $103,000, the maximum fine allowable, for contempt of court after organizing an illegal one-day strike in spite of an injunction issued by a labour tribunal the previous day.

    The stern ruling, one of only a handful over the past decade that have found Quebec unions guilty of contempt of court, is intended to send a harsh warning to the labour movement that the courts will not tolerate willful blindness, according to labour lawyers.

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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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  • Photo radar under the gun in Quebec

    Photo radar tickets are under the gun in Quebec, following a series of decisions that have put thousands of tickets in jeopardy after the courts called into question the rules around the province’s use of the automated speed and red-light enforcement technology.

    The fallout from the precedent-setting decision that held that evidence from the current photo system is “inadmissible” and “illegal” is already beginning to be felt at a time when Quebec is increasing the number of photo radar sites. Shortly after the landmark ruling issued in late November by Judge Serge Cimon of the Court of Quebec, another Court of Quebec judge heeded his guidance and tossed out 422 photo radar tickets. More recently still, two Montreal lawyers have filed two separate motions seeking authorization for class action lawsuits against the Quebec government to have hundreds of thousands of speeding and red-light tickets issued with photo radar evidence thrown out or refunded.

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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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  • Court awards $8M to hockey player paralyzed by dangerous hit

    A Quebec Superior Court decision that awarded $8 million to a minor league hockey player who was left paralyzed by a dangerous hit from behind sends a strong message that athletes can be legally held responsible for their actions when their negligent conduct causes injury to another player, according to legal experts.

    In a ruling that pointedly reaffirms the notion that sports are not exempt from the rule of law, Justice Daniel Payette held that participants in sporting activities implicitly accept certain reasonable inherent risks while playing. But not every risk is an inherent risk, particularly if it involves conduct that is outside the realm of the sport, added Justice Payette in Zaccardo c. Chartis Insurance Company of Canada 2016 QCCS 398.

    “This will be a landmark ruling in civil liability cases involving sports,” said Montreal sports lawyer Marianne Saroli. “Normally the courts have given an extremely restrictive interpretation to civil liability in sports. Violations of the rules of the game are normally interpreted by referees. However there are exceptions such as in cases where the fault is so serious that it deserves a legal sanction. That’s why this ruling is so important.”

    ZaccardoJustice Payette handed what is believed to be the highest amount awarded for a sports-related injury in Canada when he ordered Ludovic Gauvreau-Beaupré and Chartis Insurance, who covered players who played in the minor hockey league, to pay damages to Andrew Zaccardo and his family for a bodycheck from behind that left him paraplegic. Following the hit, which took place less than a minute into the game on October 2010, Zaccardo was knocked into the boards and suffered a spinal cord injury that has confined him into a wheelchair and limited the use of his hands. The award includes $6.6 million to cover Zaccardo’s care and assistance, $1M to his mother who had to stop working to care for her son, $350,000 for his father, and $50,000 to his younger brother.

    Justice Payette ruled that Beaupré was negligent and committed a civil fault. The hit from behind, while not premeditated, was deliberate as Beaupré had enough time and space to stop, change direction, or minimize the impact against Zaccardo, held Justice Payette after viewing video evidence. Beaupré, with his arm raised to just below the neck level, slammed Zaccardo into the boards, his two feet in the air as he hit him with full force. The judge found that although Beaupré did intend to hit Zaccardo from behind he did not intend to injure him. That is why both parties advised the judge at the outset of the trial that nobody contended that this was an intentional fault, explained Montreal lawyer Stuart Kugler, who along Arthur Wechsler, successfully plead the case. Instead the judge found it was an act of negligence.

    In his defence, Gauvreau-Beaupré pleaded that Zaccardo had accepted the inherent risks of hockey, including being checked from behind, by taking part in the game. The argument was rejected. “A participant in a sporting activity is entitled to the expectation that other players will take reasonable steps to avoid gestures that are likely to cause prejudice, even within the framework of a dangerous sport,” said Justice Payette.

    What’s more, Beaupré knew hitting from behind was strictly prohibited thanks to publicity campaigns launched by Hockey Canada and Hockey Quebec. The two hockey organizations were initially named as co-defendants but they were dropped from the suit after the disclosure process revealed that they had published numerous publications and videos aimed at players, coaches, referees and even parents, stressing the dangers of pushing or cross-checking someone from behind. In fact, the hockey organizations described hits from behind as a “dangerous and cowardly act.” The hockey league that Zaccardo and Gauvreau-Beaupré played in went even further: all players had to wear a stop sign in the back of the jerseys to warn players not to hit from behind. Moreover, Beaupré was suspended for a game for checking from behind two years before the Zaccardo incident.

    “Anybody who plays sports, and the judge emphasized this, you are only going to assume the risk that goes with any sport, whatever that may entail,” said Kugler of Kugler Kandestin LLP. “But not every risk is an inherent risk that players accept. Notably players do not accept the risk of getting injured by the negligible conduct of another player. The check from behind was negligent, dangerous, and contrary to the rules and regulations, and the instructional videos and safety bulletins published by Hockey Canada and Hockey Quebec – and therefore it was a civil fault.”

    The decision indirectly applauds and encourages efforts by both hockey organizations to stem violent and dangerous conduct while promoting rules and regulations that strive to ensure the safety of players, noted Yann Bernard, a Montreal sports lawyer who was the ombudsman for the Canadian team over the past couple of Olympics. “Sport organizations should be pleased with the ruling as it can only help in their efforts to clean up their sport,” remarked Bernard. “It will likely help with enrolment because it will be viewed positively that the courts are watching them and applying the law in a sports context.” Besides helping to reduce needless injuries, sport organizations that take a proactive stance towards promoting safety have a greater chance of demonstrating that they have undertaken reasonable steps and acted as a reasonable organization when facing a lawsuit, added Bernard.

    Though there is some debate over the impact the $8 million award will have on arena operators and minor hockey leagues, Montreal insurance lawyer Jonathan Lacoste-Jobin of Lavery, de Billy believes the impact will negligible, particularly since both hockey organizations were not sued by Zaccardo. The Zaccardo decision does however underscore that the courts will be paying close attention to efforts by sports organizations to make the sport safer, said Jobin. “The decision did not condemn or censure the sports organizations or even the team so I don’t think that this ruling represents an increase in risk for these organizations,” said Jobin.

    What seems to be clear though is that the long-lasting perception that what happens on the ice stays on the ice are long gone, says Wechsler. “The decision makes it clear that people have to behave as reasonably prudent people in any setting, including in a sports setting,” Wechsler. “Only certain risks are acceptable and inherent to the sport. But I don’t think we can really anticipate how far reaching this decision could be and how it’s going to be applied in the future in other contexts.”

    An application for leave to appeal before the Quebec Court of Appeal has been filed by the defendants.

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  • Right to protest in the streets is a constitutionally protected right

    An article of Quebec’s Highway Safety Code that was used to break up demonstrations has been repealed after a Quebec Superior Court judge held that it was unconstitutional in a ruling that reaffirmed that protesting in the streets is a constitutionally protected right.

    Justice Guy Cournoyer acquitted Gabriella Garbeau, one of 150 protestors who were fined during a 2011 anti-police brutality march in downtown Montreal under Article 500.1 of Quebec’s Highway Safety Code, which prohibits anyone from using a vehicle or other obstacle to block a highway “during a concerted action intended to obstruct in any way vehicular traffic.”

    In a ruling applauded by civil rights activists, Justice Cournoyer overturned a municipal court ruling and found that Article 500.1 was in violation of Garbeau’s right to freedom of expression and peaceful assembly as protected by the Canadian and Quebec charter of rights. Justice Cournoyer added that there “is no doubt” that these rights protect the right to express oneself on public roads even though “conveying messages” is not the primary purpose of city streets. But the “fact that they were historically used for expression showed” that public roads can be suitable “for exercising the right to freedom of expression,” noted Justice Cournoyer, heeding guidance provided by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 SCR 19, 2011 SCC 2.

    “This is really an important precedent, and it’s something that we want to use in another cases and share with other organizations in other countries,” remarked Cara Zwibel, director of the fundamental freedoms program with the Canadian Civil Liberties Association.

    Under Article 500.1, organizers of demonstrations had to obtain authorization, as is the case in many cities across the country. But the prior approval scheme under Article 500.1 did not provide clear, “precise, and understandable” criteria that allowed organizers to know what requirements they needed to fulfil in order to obtain a permit, noted Justice Cournoyer. Nor did the law detail conditions under which the approval could be revoked. Indeed, the article did not even spell out who was responsible for approving or rejecting the application. “In fact, according to the evidence, no prior approval scheme was implemented nor established,” said Justice Cournoyer in his 92-page ruling in Garbeau c. Montréal (Ville de), 2015 QCCS 5246. “This process was not illusory, it was inexistent.”

    The Attorney General of Quebec argued that the law implicitly stated that it was municipal police forces who were responsible for such decisions. But Justice Cournoyer noted that law did not explicitly confer the police with such powers. Nor does the law explicitly state that police were acting as a city’s representative, with the power to authorize demonstrations. At best there was an “informal process of tolerance” in which police exercised discretionary powers to manage and supervise protests, added Justice Cournoyer.

    “The judge notes that one cannot rely on police to apply a law correctly when the article is so vague that it could lead to a constitutional violation,” noted Sibel Ataogul, a Montreal lawyer with Melançon Marceau Grenier & Sciortino who represented the Quebec Civil Liberties Union who were interveners in the case. “What’s also very interesting about the decision is that it clearly states that when the legislator delegates such powers to cities, as was the case here, they cannot sub-delegate such powers to the police forces. Police are there to ensure security but they should not be able to take the political decision of deciding who can demonstrate or not, especially without clear criteria.”

    Justice Cournoyer also notes that a demonstration can be considered to be peaceful even though a small number of protesters might have committed criminal or regulatory offenses. He added that merely because a person was present at a time when illegal acts were committed during a protest one cannot necessarily conclude that the individual was either encouraging the illegal acts or was trying to help the perpetrators to flee.

    “That is a very important finding of the decision because it clearly states that one cannot use violence by some protesters as a pretext to consider the demonstration unlawful,” noted Louis-Philippe Lampron, a law professor who teaches human rights at the Université Laval in Quebec City. “That is the problem with Article 500.1. It was far too easy to declare a protest illegal in spite of the importance of being to protest collectively in a democratic society. The judge underlines the danger of unduly limiting that right.”

    According to Zwibel, protests are frequently declared illegal because of the illegal actions of a few individuals, and that “totally undermines” the right to express oneself and to assemble peacefully as it plays on the notion of guilt by association. “The finding that that the actions of a few don’t render an otherwise peacefully assembly no longer peaceful is really an important part of the decision,” said Zwibel.

    That doesn’t mean that police will be hindered from arresting violent demonstrators, warned Marie-Claude St-Amant, a Montreal lawyer who represented Garbeau. The decision clearly states that if protesters are committing illegal acts that police should arrest those individuals but neither does it give them carte blanche to declare a demonstration illegal and breach the fundamental rights of “all protesters to express themselves,” said St-Amant, who also practices at the law firm Melançon Marceau Grenier & Sciortino.

    Justice Cournoyer’s decision could have an impact on a class action that was launched following a series of mass arrests and fines, under Article 500.1, at a 2012 demonstration in Hull, added St-Amant. It could also have a bearing on another case that is challenging the constitutional validity of a Montreal by-law, known as P6, that requires protesters to give police their itinerary beforehand and prohibits protesters from wearing masks.

    In the meantime, Justice Cournoyer gave the provincial government six months to change Article 500.1 and to set clear rules on pre-approval schemes.

    “The ruling does not prevent the use of pre-approval schemes,” said Lampron. “The judge does say that it is possible to implement such a scheme but it must be based on clear criteria, and criteria that allow for the refusal of a demonstration only for valid reasons. That is the heart of the ruling.”

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  • Legal confusion surrounds status of Quebec’s assisted dying legislation

    Confusion surrounding the legal standing of Quebec’s assisted dying legislation has prompted the Quebec College of Physicians to urge its members to be prudent before agreeing to euthanize a consenting patient until the Quebec Court of Appeal hears an appeal on a Superior Court decision that suspended key articles of the historic legislation.

    “We are suggesting that doctors wait until the Quebec Court of Appeal examines the issue,” said Dr. Charles Bernard, the president and executive director of the body that regulates the province’s physicians. “We’re not saying that physicians shouldn’t do it but we are telling them to be prudent given the legal imbroglio around this issue.”

    Quebec Court of Appeal Justice Robert Mainville scheduled a hearing on the merits of the appeal for December 18th, stating that the matter is urgent, particularly since the Superior Court decision will prevent people who meet the conditions of An Act Respecting End-of-Life Care (Act) from receiving euthanasia, potentially for months.

    “Refusing leave to appeal in such an important constitutional matter that raises such fundamental questions would be to call into question the raison d’être of the Court of Appeal,” said Justice Mainville in a brief six-page ruling, before adding that the decision to grant leave to appeal “must not be interpreted as nullifying or confirming the lower court judgment.”

    The Quebec government however has contentiously interpreted the appeal court decision as giving force to the province’s assisted dying legislation as of December 10th, the day it was scheduled to be in force. Quebec Justice Minister Stephanie Vallée this week sought to reassure the medical community by issuing directives to the province’s Director of penal and criminal prosecutions, ordering it to respect the wishes of people at the end of their lives who request a medically assisted death.

    But some legal experts call into question whether Justice Mainville’s decision actually suspended the lower court ruling. Under Quebec’s Code of Civil Procedure, which shares a similar heritage to common law principles, provisional injunctions are not automatically suspended because “of the concern to protect the status quo in such a way that a decision on the merits is not compromised by a provisional decision,” said Stéphane Beaulac, a law professor at the Université de Montréal. Gérard Samet, a Montreal lawyer too believes that the appeal court ruling did not suspend the lower court decision. Samet notes that the Quebec Superior Court ruling was a declaratory judgment that is not enforceable. “When a judgment is not enforceable, and is only a binding opinion to the government, one cannot suspend its provisional execution because it is a decision that cannot be the object of a suspension,” explained Samet.

    The appeal court decision also makes no explicit reference that suspends the lower court decision, pointed out both Beaulac and Samet. All of which could lead to the “very odd” situation of having a law that is in force for only eight days if the appeal court upholds the lower court ruling, added Beaulac.

    In a historic vote, after nearly five years of heart-wrenching deliberations across the province by a cross-party committee of the National Assembly approved in June 2014 Bill 52, An Act Respecting End-of Life Care. Bill 52 conspicuously, and contentiously, avoids using the terms euthanasia or assisted suicide. By amending the Quebec Medical Act to allow doctors who have been given the consent of an end-of-life patient to administer a drug or substance to hasten or cause death, the Quebec government is asserting jurisdiction over euthanasia on the grounds that it is a medical act, and health falls under provincial jurisdiction.

    But on December 1st, Quebec Superior Justice Michel Pinsonnault suspended key aspects of the Act. While the Quebec-based Coalition of Physicians for Social Justice and Lisa D’Amico, a disabled woman represented by Samet, sought an injunction from Quebec Superior Court to prevent Bill 52 from taking effect on December 10th, Justice Pinsonnault did not issue the injunction they sought. Rather Justice Pinsonnault ruled that the parts of the provincial law cannot take effect this month because some of the key articles in the new law contravene section 14 and 241(b) of Canada’s Criminal Code on medically assisted suicide. Article 14 states that “no person is entitled to consent to have death inflicted on him” and Section 241b) forbids anyone from counseling, aiding or abetting someone to commit suicide.

    Justice Michel Pinsonnault held that the federal law must take precedence over provincial law until the necessary Criminal Code amendments are made. “The doctrine of federal preponderance applies in this case and continues to apply until the incompatibility with sections 14 and 241b) of the Criminal Code disappears,” Pinsonnault concluded in a 39-page ruling in D’Amico c. Québec (Procureure générale) 2015 QCCS 5556. The doctrine of federal paramountcy comes into effect only where there is an inconsistency, or true conflict, between validly enacted federal and provincial legislation.

    “From a constitutional standpoint, the decision is very solid,” remarked Beaulac, a constitutional law expert. “Justice Pinsonnault’s interpretation of the doctrine of federal preponderance is not at all controversial.”

    But Jean-Pierre Ménard, a Montreal medical malpractice lawyer who headed a panel of legal experts commissioned by the Quebec government to examine the legal feasibility of a comprehensive “dying with dignity” law, asserts that the Pinsonnault ruling is very disappointing, extremely limited in scope, and only served to delay the application of the provincial legislation. In light of the recent SCC decision in Alberta (Attorney General) v. Moloney, 2015 SCC 51, Ménard argues that Justice Pinsonnault should have adopted a “much more nuanced” approach to the doctrine of federal paramountcy, particularly since those Criminal Code provisions were struck down by the SCC in the landmark ruling Carter v. Canada (Attorney General) 2015 SCC 5 last February.

    In an unanimous decision, the SCC ruled in Carter that those two Criminal Code provisions “unjustifiably” infringe s.7 of the Canadian Charter of Rights and Freedoms and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who clearly consents “to the termination of life,” and has a “grievous and irremediable” medical condition that causes enduring suffering that is intolerable to the individual. The SCC gave Parliament until February 6, 2016 to enact new laws. Ottawa, however, recently asked the SCC to give it another six months to make the changes while the Quebec government is asking the nation’s highest court for an exemption.

    “Ottawa should have given more thought to the issue in order to prevent an unfortunate situation,” said Sébastien Grammond, a constitutional law expert and former dean of the civil law section at University of Ottawa. “Ottawa could have said that the Quebec legislation is a response to the Carter ruling and work with Quebec for a possible solution.” The federal government could have either asked the SCC to exempt Quebec from the Criminal Code provisions that deal with medically assisted suicide or it could have rapidly enacted a law that would provide exemptions to provinces that enact laws that allow for physician-assisted deaths, said Grammond. These exemptions would hold that such deaths would not be a criminal offense, added Grammond.

    Beaulac too believes that a golden opportunity was missed by both parties, but particularly by the Quebec government, to endorse and foster cooperative federalism. He points out that Quebec was outraged when the federal government refused to hand over ownership of the provincial gun registry records. (In a split decision, the SCC ruled earlier this year against Quebec’s bid to take ownership of the gun registry data.) “It’s a missed and wasted opportunity, especially since we have a new federal government, to send a clear signal that there was a new era of collaboration between Ottawa and Quebec.”

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  • Federal government given 18 months to amend Indian Act

    The federal government has been given 18 months to correct discriminatory provisions in the Indian Act that infringe the Charter of Rights and Freedoms after a Quebec judge held that generations of indigenous women have suffered discrimination based on gender.

    Despite several amendments to the Indian Act, the latest in 2010 in response to a ruling by the Court of Appeal for British Columbia, Quebec Superior Justice Chantal Masse found that it still discriminated against women and their descendants on the issue of registration or “Indian status.” The federal government has until January 2017 to amend the discriminatory provisions before they are declared invalid as an unjustifiable breach of the right to equality guaranteed by section 15 of the Charter.

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  • Mandatory retirement age for municipal judges not discriminatory

    Two municipal judges who sought to stay on the bench beyond the retirement age of 70 lost their legal battle after Quebec Superior Court held that a mandatory retirement age for provincially-nominated magistrates is not discriminatory and is necessary to preserve judicial independence.

    But the ruling has not settled the issue of mandatory retirement age for provincially-nominated judges, according to Gérald Tremblay, former batonnier of the Quebec law society. Seven years ago, an Ontario Superior Court judge ruled that a law forcing justices of the peace in the province to retire at the age of 70 was a violation of equality rights guaranteed under the Canadian Charter of Rights and Freedoms. Justice Strathy, now Chief Justice of the Ontario Court of Appeal, substituted – or “read in” – new provisions that allow justices of the peace to keep working until age 75, subject to the annual approval of the Chief Justice of the Ontario Court of Justice, even though the official retirement age is 65.

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  • Muslim non-profit organization obtains status as religious institution

    A Muslim non-profit organization that sought to obtain the status of a religious institution in order to obtain an exemption from paying municipal and school property taxes won its case after Quebec Superior Court overturned a ruling by Quebec’s administrative tribunal.

    In a ruling that reversed a recent trend by Quebec adjudicators who interpreted the notion of religious institutions narrowly and restrictively, Quebec Superior Court Justice Carol Cohen held that it should instead benefit from a broad and liberal interpretation. While the expression religious institution is not defined by Quebec law, Justice Cohen heeded guidance from Quebec jurisprudence as well the recent Supreme Court of Canada’s ruling in Loyola High School v Quebec (Attorney General) 2015 SCC 12, and held that that a religious institution exists when an organized group of persons establish or create an organization to facilitate the pursuit and realization for religious purposes.

    “The Fondation case resembles a lot to the Loyola High School, a non-profit corporation that is involved in private education, the only difference being the Muslim faith of its founders,” said Justice Cohen in Fondation Internationale Azzahra inc. v. Cour du Québec 2015 QCCS 1307.

    Quebec municipalities. Religious. Property tax exemptionsMuch is at stake. Under the Quebec Act respecting municipal taxation (Act), religious institutions are exempt from paying municipal or school property taxes. There are 3,804 religious institutions in Quebec, including 1,132 in Montreal that were exempted from paying $92 million in municipal and school property taxes in 2014. But the Quebec government has been clamping down in recent years against organizations that allegedly abuse their status as religious institutions to avoid paying municipal and school property taxes, and has launched legal proceedings against them before the Quebec Administrative Tribunal.

    “This is an important ruling because the appreciation of what constitutes a religious institution and religious activities was increasingly being interpreted in a more limited and restrictive fashion by adjudicators and the courts,” explained Sébastien Dorion, a Montreal lawyer with Dunton Rainville who successfully plead the case. “This ruling sets the record straight and restores the broad and liberal interpretation that existed before the new restrictive interpretation began to take hold.”

    The case deals with Fondation Internationale Azzahra, a Montreal charitable and Islamic religious foundation established in 1989. It owns and operates a mosque, a Muslim cemetery, Islamic schools, and conducts charitable, philanthropic, community and cultural activities. The property that houses its mosque and cemetery were exempted from paying municipal and school property taxes because it was granted the status of a religious institution. In 2008, the Fondation acquired another property in Montreal that housed a high school, and it was granted a licence to teach by the Quebec Ministry of Education. In 2009, the City of Montreal issued two certificates exempting the Fondation from paying municipal and school property taxes on the school because it deemed it to be part of a religious institution.

    But the Quebec Ministry of Municipal Affairs, Regions and the Occupation of Territory (MAMROT) contested the two exemptions and brought the matter before the Tribunal administratif du Québec (TAQ). On November 2011, the adjudicators ruled in favour of MAMROT and held the Fondation should not qualify as a religious institution under the Act. Rather the TAQ held the Fondation should be classified as a cultural and community organization because its letters patent and promotional materials do not describe it as a religious institution and because its stated aim was above all charitable, philanthropic, and community-based. Oddly, the TAQ ruling made no reference to the fact that the Fondation was already granted the status of a religious institution for its other properties that housed the mosque and the cemetery.

    Quebec municipalities. Property tax exemptionsThe financial consequences of the TAQ ruling were enormous. If the ruling was upheld, the Fondation faced a tax bill running into the hundreds of thousands of dollars in back taxes, said Dorion. An exemption would spare it from paying municipal and school taxes that range between $75,000 and $100,000 annually. The Fondation successfully appealed the ruling.

    Justice Cohen overturned the TAQ decision, and held that the adjudicator’s decision was “incomprehensible and unreasonable,” particularly since the Fondation was already certified as being a religious institution for its other properties. “If the interpretation of the TAQ and MAMROT is correct, then all religious institutions will have to abstain from doing too much charitable, philanthropic or educational activities, in order not to lose its qualification as a religious institution” under the Act, noted Justice Cohen. “Such a conclusion would be the equivalent of an amendment to the Act and would require a definition of what is too much of these activities, a definition and limitation that is nowhere to be found in the Act.”

    Justice Cohen also pointed out that under article 2 of the Quebec Religious Corporations Act religious activities and charity, teaching, and education are not mutually exclusive. On the contrary, the Religious Corporations Act “suggests” that charity, teaching and education are part of the objectives of religious corporations, added Justice Cohen.

    “The ruling is lucid,” said Daniel Bouchard, the managing partner of Lavery, de Billy’s Quebec City office and an expert in municipal law. “If one thinks about it, it would be counterproductive for a society at large (if the TAQ decision was upheld). We’d be asking religious institutions who want to continue to benefit from the exemption to conduct the least charitable work possible. That would be a misinterpretation of the Act.”

    The ruling does not create new law, points out Guillaume Rousseau, a law professor at the Université de Sherbrooke. Instead, it reverts back to jurisprudence that existed before the TAQ began issuing a strict interpretation of what constitutes a religious institution. “Justice Cohen is ensuring that the TAQ decision does not evolve into jurisprudence that favours a strict and restrictive interpretation of religious institutions,” said Rousseau, a municipal law expert. “She clarified the notion of religious institution and goes back to the jurisprudence that existed before rather than making it evolve in the way the TAQ decision would have.”

    Dorion has another client that faces the same plight as the Fondation. The TAQ turned down the organization’s application to be certified as a religious institution because it was “too involved in education,” said Dorion. He intends to use Justice Cohen’s decision to appeal the TAQ decision.

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  • Ruling extends reach of taxman’s demand letters

    Quebec’s tax authorities can issue demand letters and request the disclosure of financial information from third parties located outside of the province to determine whether the taxpayer is subject to the province’s tax laws, ruled Quebec Superior Court.

    The ruling illustrates the daunting challenge taxpayers face when trying to quash formal demand letters and requests for information by tax authorities, particularly when they are trying to ascertain the residency of corporations or trusts in order to establish where it makes its management decisions, according to tax experts.

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  • Confidentiality breach proves expensive for federal government

    The federal government and two employees who worked for an Employee Assistance Program were ordered to pay nearly $175,000 for breaching the rights of an employee who sought their assistance in a case that underlines the importance for employers and personnel to safeguard confidential information.

    “Employers must draw lessons from this ruling on how to deal with confidential and private information of employees,” said Sébastien Lorquet, a labour and employment lawyer with Fasken Martineau DuMoulin LLP. “They must understand that if confidential and private information is disclosed and that it causes harm to an employee, then employers and employees at fault can be held liable for damages incurred by the employee who suffered harm.”

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  • Employers have duties towards employees working abroad

    An electrician who launched a $190,000 suit against the scandal-plagued engineering firm SNC-Lavalin for failing to “rapidly and efficiently” evacuate him from Libya while the African nation was in the midst of a civil war lost his court battle after Quebec Superior Court held that the “troubles and inconvenience” he suffered were due to the “insurrection” in the country.

    In a ruling that sheds light on the responsibilities employers have towards employees who work abroad, Justice Louis Lacoursière held that while article 51 of the Quebec Act Respecting Occupational Health and Safety (Act) does not apply beyond the borders of Quebec, employers are nevertheless bound under article 2087 of the Civil Code of Québec to take “any measures” to protect the health, safety, and dignity of employees even if they work out of the country.

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  • More fallout from Norshield financial scandal

    Nearly eight years after a high-flying hedge fund with ostensibly $1-billion in assets collapsed under the weight of a flurry of investor redemptions, the fallout from the Norshield Financial Group financial debacle continues unabated.

    Quebec Superior Court recently certified a $159-million class action against the Royal Bank of Canada, less than four months after yet another financial planner was fined $225,000 by the Court of Quebec after being found guilty of 60 of the 62 charges laid against him by the provincial securities regulator in connection with the illegal distribution of products related to Norshield. So far, ten representatives have been found guilty, incurring fines totalling $628,500. Only one case remains outstanding.

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Law in Quebec
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