Law in Quebec

News about Quebec legal developments

Rulings

  • Appeal court authorizes class action against Mazda

    A class action against an automobile manufacturer that was dismissed by a lower court was partially overturned by the Quebec Court of Appeal after it held that Mazda Canada Inc. failed to disclose “important information” to consumers in a timely manner.

    Hailed as a victory for consumers, the appeal court’s decision bucks the nationwide growing trend against economic loss based tort claims, and serves a clear reminder to manufacturers that it is in their best interests to promptly inform consumers over “important facts” regarding their products and to fix products afflicted with latent defects expeditiously, according to consumer law experts.

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  • 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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  • Revenue Quebec ordered to pay $2.4 million

    Revenue Quebec was ordered to pay $2.4 million, including $1 million in punitive damages, to a Montreal business after the Quebec Court of Appeal found that the provincial fiscal authority abused its powers and acted maliciously and in bad faith.

    In a decision that sternly rebukes the provincial tax authority for abusing its “extraordinary powers,” the appeal court ruling held that Revenue Quebec owes a general duty of care and good faith to taxpayers as well as an “obligation to compensate” taxpayers who were the victims of wrongful conduct, according to tax lawyers.

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  • Revenue Canada investigation highly reprehensible, says court

    A “highly reprehensible” and illegal probe by the Canada Revenue Agency that failed to draw the distinction between a civil tax audit and a criminal tax investigation has put into jeopardy several tax evasion criminal cases involving Quebec construction companies and corruption charges against former federal civil servants, according to tax experts.

    In a precedent-setting ruling that appears to bring more clarity to the leading Supreme Court of Canada decision in R. v. Jarvis , [2002] 3 SCR 757, Court of Quebec Justice Dominique Larochelle held that the evidence produced to charge the owner and three other company officials of a Montreal company, B.T. Céramiques, was obtained illegally because federal tax officials crossed the “Rubicon” and failed to inform the taxpayers that the inquiry had turned into a criminal investigation, thereby breaching their right to freedom from self-incrimination and right to reasonable expectation of privacy guaranteed under s.7 and s.8 of the Charter of Rights and Freedoms.

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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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  • Ruling clarifies circumstances under which securities can be ordered

    Tobacco companies suffered a second legal setback in less than a month after the Quebec Court of Appeal ordered two cigarette makers to set aside nearly $1 billion in security, the largest ever in the province’s history, to ensure that money is available to pay victims who won a landmark $15.5 billion class action lawsuit earlier this year.

    In a ruling that clarifies the exceptional circumstances under which securities can be ordered, the appeal court ordered Imperial Tobacco Canada Ltd. to pay $758 million in seven quarterly instalments and Rothmans, Benson & Hedges Inc. $226 million in six quarterly instalments, beginning in December until next year. If the tobacco manufacturers are successful in having the $15.5 billion judgement overturned on appeal, the security will be returned to them. If not, it will be available for distribution to victims who launched the class action suit. (A motion for security was not sought against JTI-MacDonald Corp. because one of the lawyers became ill).

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  • 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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  • Tough on crime agenda suffers another blow

    The federal government’s tough-on-crime agenda suffered another blow after the Quebec Court of Appeal ruled that a legislative amendment slipped into the 2012 omnibus bill that effectively ended mandatory parole board hearings following a suspension, termination or revocation of parole or statutory release was of no force in the province.

    In a highly-anticipated ruling by the prison law community, the Quebec Court of Appeal held that the legislative change, a cost-savings measure expected to recoup $1.6 million, breached rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms. In a similar vein, the Supreme Court of Canada last year ruled that a federal law passed in 2011 that retroactively abolished accelerated parole review for offenders who had already been sentenced violates a person’s Charter right to not be punished again.

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  • Tobacco healthcare recovery cost law constitutional, rules appeal court

    Tobacco companies lost another legal battle in Quebec after the appeal court sided with the provincial government in a ruling that opens the door province to sue tobacco companies to recover billions in healthcare costs related to smoking.

    Nearly three months after a landmark ruling ordered three leading Canadian tobacco companies to pay $15.5 billion in moral and punitive damages to Quebec smokers, the Quebec Court of Appeal upheld a lower court ruling that found that while the province’s healthcare recovery legislation does deprive tobacco companies some traditional means of defence it does not affect their right to a fair trial.

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  • Quebec appeal court imposes duty to investigate on business seeking input tax credits

    Less than a year after the Federal Court of Appeal held that a supplier’s delinquent fiscal conduct is irrelevant to an input tax credit claim, the Quebec Court of Appeal has muddied the legal waters with a controversial decision that affirmed that Quebec business are expected as part of an effort to impede tax evasion to conduct due diligence on suppliers in order to be able to obtain input tax credits.

    In a highly-awaited ruling that startled tax professionals, the appeal court held that business are required to do more than simply confirm the validity of a supplier’s GST/HST registration number and confirm that invoices conform to the current legislation and regulations to qualify for input tax credit (ITC) claims. Business have the added duty to authenticate invoices used to claim ITCs originate from the person that actually performed the service, held the appeal court.

    “This is a very important ruling for the business and tax world because in a way it can change the way businesses operate in Quebec,” remarked Alexandre Dufresne, a tax lawyer and managing partner of Spiegel Sohmer in Montreal. “It’s unfortunate but you hear more and more people saying I am going to bring my operations in other jurisdictions because the administrative burden is just too heavy in Quebec. It’s reached that point.”

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  • Court rules there are limits to reverse or correct unintended tax consequences

    Taxpayers do not have a general license to “travel back to through time” with the benefit of hindsight to reverse or correct unintended tax consequences of commercial dealings, held the Quebec Court of Appeal in two separate but related rulings.

    The rulings effectively limit the scope of the so-called rectification remedy in a tax context under civil law, according to tax experts. A powerful legal instrument, rectification essentially allows taxpayers, under certain conditions, to correct errors in legal documents or instruments that do not reflect the true intention of the parties, and which lead to unintended consequences. Rectification allows the parties to “fix” the terms of the transaction so that the intended tax consequences are achieved. Its effect is retroactive.

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  • Another blow for Mr. Big operations

    A Quebec man convicted of the first degree murder of his pregnant wife following a Mr. Big operation police sting operation is now a free man after the Quebec Court of Appeal found that his confession was obtained under duress, the second time this year that the appeal court has taken a dim view of the elaborate police strategy.

    “Thousands and thousands of dollars are invested by the state in these Mr. Big operations to try to elicit a confession,” remarked Montreal criminal lawyer Jean-Philippe Marcoux. “And after all that, for it to reach the Court who ordered a stay of proceedings, it is a dismal failure.”

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  • 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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Law in Quebec
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