Plaintiff class action legal fees under the microscope

A $28-million settlement reached with a Catholic religious order in a sexual abuse class action was rejected by Quebec Superior Court because of the high legal fees associated with the agreement, the second Quebec class action settlement in the past month whose legal fees have been the subject of a critical assessment.

The decision by Quebec Superior Court Justice Thomas Davis to rebuff a settlement for more than 375 alleged victims of sexual assaults committed by members and employees of the Clercs de Saint-Viateur of Canada follows on the heels of a ruling in mid-June by Quebec Superior Court Justice Daniel Dumais to curb plaintiff class action legal fees by 20 per cent in the so-called Dieselgate scandal in which German carmaker Volkswagen AG violated Canadian emissions standards.

The decisions underline that settlement approvals are not a rubber stamping exercise, demonstrate that the courts will take into account the Code of Professional Conduct of Lawyers (Code) when examining plaintiff class action legal fees, reiterate the importance of transparency vis-à-vis clients even in a class action setting, and illustrate why settlement approvals should be separate from and not contingent on class counsel fee approvals, according to class action legal experts.

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Legal experts hope first remediation agreement under Criminal Code will lead to more

Nearly four years after the federal government added deferred prosecution agreements to the Criminal Code as part of its arsenal to fight corruption and other white-collar crime, legal experts hope that guidance provided by Quebec Superior Court in Canada’s first ever remediation agreement will prompt federal prosecutors and organizations to take advantage of the new way of settling criminal charges.

The comprehensive, meticulous and “important” decision introduces a “welcome” degree of certainty to the new process in the absence of accompanying regulations, guidelines or policies in the remediation agreement regime, according to legal experts. The ruling by Quebec Superior Court Justice Éric Downs sheds light on how remediation agreements will be broached by the courts, indicating that while they will not act as a “rubber stamp” in reviewing proposed settlements, the agreements will be afforded a high degree of deference, added the experts. The judgment also signals that self-reporting, though not a “hard condition,” will carry considerable weight as does “strong cooperation” to help sway the courts to sanction the agreement, they added.

“It’s an important decision because there were question marks around how the courts would approach the approval of a remediation agreement and how involved they would be in the process,” noted Louis-Martin O’Neill, a Montreal M&A and securities litigator with Davies Ward Phillips & Vineberg LLP. “The Court was very mindful of the fact that there is a huge need for stability in the system, and that implies that when a corporation starts to negotiate with the prosecution for a remediation agreement it has to know that unless something very grave happens, that agreement should stick when presented to the court.”

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Some provisions of federal patented drug pricing regime unconstitutional

The federal government will have to overhaul its regulatory approach and guidelines over patented drug pricing after the Quebec Court of Appeal found a couple of provisions to be unconstitutional and outside the scope of federal jurisdiction over patents, according to a legal expert.

The Appeal Court ruling, expected to have a significant impact on the pharmaceutical industry in Canada, upheld the constitutionality of the legislative framework of the Patented Medicines Prices Review Board (PMPRB) and it current regulations. In a unanimous decision, the Appeal found that controlling abusive pricing of medicines resulting from a monopoly conferred by a patent has a logical, real and direct connection with federal jurisdiction over patents and does not constitutionally encroach on provincial jurisdiction.

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Montreal car dealer ordered to pay damages for selling fake vintage

The 1969 ZL1 Camaro is a legendary muscle car. It is a beast of a car, raw, powerful and quick, and was actually designed for drag racing, capable of exceeding 500 horsepower. Only 69 were made, and it’s worth a fortune, with collectors paying as much as US$1 million.

Brad Kyle thought he got his hand on one of these rare vintage automobiles, number 48 of 69. In February 2014 the head of Town & Country Chrysler Ltd., a new and used car dealer that occasionally sells exotic sports cars, purchased the car for $395,000 (plus tax) from Rolls-Royce Motor Cars Limité, a Montreal car dealership specializing in the sale of exotic and luxury cars.

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Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts

The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.

The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.

“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”

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New labour relations legal landscape on the horizon following Appeal Court decision

A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.

“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”

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SCC to hear challenge over Quebec’s ban on homegrown cannabis

There may yet be hope for Quebec homegrown cannabis growers.

The Supreme Court of Canada will examine the constitutionality of a provincial ban that forbids the growing of recreational cannabis for personal use. No date has been set for a hearing.

The Quebec Court of Appeal overturned a lower court ruling last year that held that Quebec’s prohibition on home cultivation was unconstitutional.

The Appeal Court concluded instead that the province was acting within its jurisdiction over property and civil rights when it decided to regulate the market by creating a state monopoly to minimize the “harmful” effects of cannabis on health.

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New tort in family violence recognized in Ontario

Following in the footsteps of Quebec, a new tort in family violence has been recognized in Ontario.

In Quebec, there are some 20 cases that awarded damages to victims of spousal abuse, a figure that is less than the number of decisions that have granted damages to ex-spouses for online harassment, point out legal experts. But there are signs that is about to change.

“It is a trend that will accelerate, and that’s because of the new amendments in the Divorce Act,” family law expert Michel Tétrault told me last year.

He may be right.

In Ahluwalia v. Ahluwalia, 2022 ONSC 1303, Ontario Superior Court Justice Renu Mandhane held that

[4]… I am prepared to award $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence. I recognize that making such a significant damage award is well-outside the normal boundaries of family law. In the typical marriage, characterized by economic interdependence and mutual support, the family law statutory framework will be a complete code that allows for the fair, predictable, and efficient resolution of the parties’ financial issues post-separation.

[5] However, the marriage before me was not typical: it was characterized by the Father’s abuse, and a sixteen-year pattern of coercion and control. It was not just “unhappy” or “dysfunctional”; it was violent. The family violence the Mother endured at the hands of the Father is not compensated through an award of spousal support. Indeed, the Divorce Act_, R.S.C., 1985, c. 3 (2nd Supp) specifically prohibits me from considering “misconduct” when making a spousal support award: s.15.2(5). On the rare and unusual facts before me, the Mother is entitled to a remedy in tort that properly accounts for the extreme breach of trust occasioned by the Father’s violence, and that brings some degree of personal accountability to his conduct.

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Quebec justice minister, judiciary locked in ‘power struggle’ over bilingualism requirements for judges

Barely a week after Quebec Superior Court ruled that the provincial justice minister does not have a say on how the judiciary determines its professional and linguistic requirements, the Quebec National Assembly passed a non-binding motion declaring that unilingual French-speaking applicants should not be barred from applying to become provincial judges.

In the wake of a decision that plainly states that the Quebec justice minister cannot bar bilingualism prerequisites for judicial candidates, the National Assembly adopted without debate and with the support of the four opposition parties a motion that “reiterates the importance of the principle of the State’s exemplary role in protecting the French language” and that “justice is no exception to this important principle.”

Quebec Minister of Justice Simon Jolin-Barrette is also considering amending legislation to prohibit the Court of Quebec from requiring judges to be bilingual in certain judicial districts, stating that “all options are on the table,” including appealing the 71-page decision in Conseil de la magistrature c. Ministre de la Justice du Québec, 2022 QCCS 266.

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Quebec man “returned” from his “legal” death

Sometimes a person who has been legally declared dead is not dead.

In a remarkably rare turnabout, a Canadian insurer successfully convinced Quebec Superior Court to annul a judicial declaration of death of a Montreal man who disappeared in 2008 after reliable signs of life were uncovered, freeing it of its obligation to pay $500,000 in life insurance.

“There is not much that has been written about such cases because they are exceptional,” noted Josianne Gelfusa, a Montreal notary with D & G Notaries, who co-wrote a chapter on absence and death for the book Droit des personnes physiques (Law of natural persons). “So there is not much case law to assist judges.” Continue reading “Quebec man “returned” from his “legal” death”