Each Monday I will provide a potpourri of Quebec legal developments. Here’s the first issue. It begins with the Supreme Court refusing to hear an appeal from the Mohawk Mothers, Hydro-Québec ordered to pay $5 million to a First Nation, a $2 million for contaminating water, a class action settlement dealing with psychiatric patients, and a class action that was certified against a Montreal billionaire.
Rulings
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Method used to conduct pay equity audit is invalid, rules Labour Tribunal
A method used to estimate wage differentials during pay equity evaluations cannot be validly used as it contravenes the Quebec Pay Equity Act, ruled the Administrative Labour Tribunal in a decision widely expected by labour lawyers to have a significant impact on estimating and assessing public sector pay equity.
The decision, one of a handful dealing with pay equity audits in Quebec, underlines that employers cannot depart from the objectives behind the Pay Equity Act when estimating wage gaps, and provides practical guidance to employers and labour alike over the pay equity maintenance exercise, according to labour lawyers.
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Insurance suicide exclusion null and void, rules Quebec Appeal Court
A year ago, Quebec Superior Court admonished the “seemingly impenetrable world of insurers to open their eyes” after it ruled that an insurance company must pay beneficiaries $1.5 million because it failed to properly reveal exclusions in an insurance policy.
Justice Jean-Yves Lalonde warned insurers that they must clearly indicate exclusions or clauses, particularly clauses dealing with suicide, that reduce coverage under an appropriate heading or risk having the exclusion clause declared null and void.
“It’s a ruling that changes the state of law on this issue as it is the first judgment that has annulled a suicide clause,” noted insurance law expert Jacqueline Bissonnette.
“What’s new is that the ruling stipulates that the suicide clause should be included in the same way as the other exclusions. That’s what’s new, and that if it’s not included, the policy will be cancelled and the exclusion will be considered to be unwritten,” added Bisonnette, a Montreal lawyer with Poudrier Bradet Avocats and Chair of the executive of the insurance and civil litigation section of the Canadian Bar Association, Quebec branch.
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Class actions over COVID-19 certified against Google and Facebook
Two separate but related class actions were recently certified by Quebec Superior Court against tech behemoths Google and Meta for allegedly breaching Quebecers’ freedom of expression by censoring or making content directly or indirectly related to COVID-19 unaccessible.
In the suit against Google, class action representative plaintiff Éloïse Boies, who operates a YouTube channel “Élo veut savoir,” alleges that several of her videos that claimed that governments and large companies were censoring information about COVID-19 were deleted. The videos apparently violated the platform’s policies for propagating “incorrect medical information contradicting that of local health authorities or the World Health Organization (WHO) regarding COVID-19.” Boies is seeking compensatory and punitive damages for anyone who, in the context of the Covid-19 pandemic, suffered censorship of their videos by YouTube, as well as to anyone who was unable to view these same videos.
A similar claim was made against Meta Platforms, owner of Facebook, by Christian Leray, an administrator of the Facebook group Réinfo Québec, an organization of professionals, mainly from the healthcare sector, dedicated to informing the public about the Covid-19 pandemic. Postings by Leray and the group that called into question COVID-19 public health measures were deleted by Facebook, a decision Facebook maintains was justified because it has a policy that prohibits misinformation that could cause physical harm, relays false information about COVID-19 or because information is at odds with its “community standards.” Leray, like Boies, too is seeking compensatory and punitive damages.
Quebec Superior Court Justice Lukasz Granosik dismissed arguments by the tech giants. Both Google and Facebook maintained that the class actions should not be certified because the class action representatives do not present a defensible case and therefore cannot adequately represent the group. Google added that there are no common issues, but a bundle of eminently individual cases, which makes a class action inadmissible in this case.
“If Facebook…controls the content that finds its way onto its platform, it cannot deny all responsibility,” held Justice Granosik in Leray c. Meta Platforms inc., 2024 QCCS 1513. “If it carries out censorship, prevents certain people from posting certain information, punishes them by restricting access to their account and thus hinders the free circulation of ideas, it exposes itself to having to defend its ways. Its decision may be well-founded, and it may not incur any liability, but the question arises and it is clear that the plaintiff has a simple possibility of success on the merits.”
Justice Granosik came to an identical conclusion in Boies c. Google, 2024 QCCS 1512.
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Soccer club did not discriminate by refusing to integrate girls into a boys’ team
A Montreal soccer club did not discriminate by refusing to integrate two girls into a boys’ team, ruled the Quebec Court of Appeal.
Karine Bellemare, unhappy that her two girls could not play on the same soccer team as their friends (boys), refused to register them in the summer recreational soccer league run by a Montreal soccer league and filed a complaint with the Quebec Human Rights Commission.
The Commission, following an investigation, adopted a resolution that stated the two girls had been discriminated against on the basis of their sex.
But the Quebec Human Rights Tribunal dismissed the claim and concluded the Quebec Human Rights Commission, acting for the mother, failed to demonstrate the existence of a prima facie case of discrimination under the Quebec Charter of Human Rights and Freedoms.
The Commission appealed, arguing that the Tribunal refused to acknowledge discrimination and stereotypes historically experienced by women.
The Quebec Appeal Court dismissed the appeal in Commission des droits de la personne et des droits de la jeunesse (Bellemare) c. Club de soccer Les Braves d’Ahuntsic, 2024 QCCA 462.
The Appeal Court upheld the Tribunal’s conclusion that even on an objective assessment of dignity and its requirements, the evidence does not demonstrate any infringement of their rights. “In a recreational activity intended for children of this age, the fact that the groups are composed in such a way that boys play with boys and girls play with girls in no way undermines their dignity as human beings or that of their parents,” said the Tribunal, a finding upheld by the Appeal Court.
The Appeal Court also confirmed the Tribunal’s finding that the participation of children in a summer recreational soccer league did not result in discrimination based on historical stereotypes unfavourable to women. “Even if the judge had enumerated historical stereotypes of women, there is nothing to suggest that he would have concluded that the separation of boys and girls reinforced or perpetuated them,” held the Appeal Court.
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Notwithstanding clause centre stage in Quebec Appeal Court ruling over controversial secularism law
The Quebec Court of Appeal, handcuffed by the provincial government’s use of the notwithstanding clause, upheld a controversial secularism law that bans religious symbols from being worn by government employees, in a decision lauded by legal observers who endorse the so-called “parliamentary sovereignty clause” while bemoaned by others who deem it to be a “major retreat” from the fundamental principle of the rule of law.
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Controversy erupts after Quebec Appeal Court grants asylum seekers access to subsidized daycare
Asylum seekers in Quebec, after waging a long legal battle, can now have access to subsidized daycare after the Quebec Court of Appeal found that a provincial policy was discriminatory in a decision hailed by legal experts but mired in political controversy.
The Quebec government will however seek leave to appeal before the nation’s highest court, and has filed a request to stay the unanimous decision by the Quebec Appeal Court until the Supreme Court of Canada renders judgment in order to maintain the ban on access to subsidized daycare for asylum seekers.
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Strip search not discriminatory, rules Quebec Appeal Court
A Quebec Human Rights Tribunal that found that a prisoner had been discriminated against during a strip search because he had been viewed by a correctional services officer of the opposite sex was overturned by the Quebec Court of Appeal after it concluded that there was no evidence that the prisoner’s sex played any role in the differential treatment to which he was subjected.
The Tribunal found that the plaintiff suffered discriminatory treatment with respect to the rights enshrined in ss. 4 (but not 5), 24.1, 25 and 26 of the Québec Charter of Human Rights and Freedoms. It ordered the appellants solidarily to pay the plaintiff $6,000 for moral damages, and ordered a prison guard to pay $1,000 in punitive damages.
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Human rights lawyers hail Quebec tribunal’s finding that pension provision is discriminatory
A legislative provision in the Act respecting the Quebec Pension Plan that financially penalizes disability claimants at age 65 was declared unconstitutional because it infringed the right to equality under the Canadian Charter, held the Administrative Tribunal of Quebec in a decision lauded by human rights advocates who say the ruling may ultimately affect thousands of people.
The long-awaited judgment demonstrates an openness by adjudicators to recognize economic and social rights, and is a clear signal that guidance from the Supreme Court of Canada, particularly in a series of 2020 decisions in Fraser v. Canada (Attorney General), 2020 SCC 28 and Ontario (Attorney General) v. G, 2020 SCC 38, over the notion of substantive equality as opposed to formal equality is making inroads in lower courts and administrative tribunals, according to human law experts. In Fraser, the Supreme Court underscores that substantive equality underpins the court’s equality jurisprudence, and is at its heart the recognition that identical treatment may frequently produce serious inequality.
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New trend in case law emerges dealing with work-related psychological trauma
A new trend in case law dealing with work-related psychological trauma has emerged over the past year that both clarifies the test dealing with workplace mental injury and will likely lighten the burden for employees to make their case, according to legal pundits.
A series of decisions by the Quebec Administrative Labour Tribunal adjudicators have called into question the widely-held notion, fleshed out in the 1990s, that the event or series of events alleged to be the cause of the mental injury be objectively traumatic, a requirement that imposes a burden of proof that is higher than the balance of probabilities, noted employment and labour law experts.
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Decision may spur authorities to hold organizations accountable for workplace deaths
An appeal by a Quebec City company that was found guilty of criminal negligence causing the death of one of its workers was dismissed by the Quebec Court of Appeal in a “very important” decision that may spur law enforcement officials and Crown prosecutors across the country to be more aggressive and hold to account organizations and decision-makers for workplace deaths, according to legal experts.
In one of the few appellate court decisions in the country that has examined the criminal liability of organizations, the Quebec Appeal Court clarified the use and scope of the so-called Westray bill or Bill C-45, particularly section 217.1 of the Criminal Code, held that any evidence, including circumstantial evidence, during the period preceding the indictment is admissible, and that victim’s statements reported by witnesses is allowed so long as it is used for narrative rather than adjudicative purposes, noted legal pundits.
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Far-reaching decision addresses racial profiling in prisons
The Quebec Human Rights Tribunal ordered the Attorney General of Quebec and eight prison employees to pay a young black man $41,500 in moral and punitive damages in a decision deemed to be a major step forward in the recognition of racial profiling and the duty to accommodate in prisons, according to legal observers.
The ruling, the first to deal with racial profiling in a Quebec detention center, also issued public interest orders under Article 80 of the Quebec Charter of Human Rights and Freedoms, compelling the provincial Ministry of Public Safety to develop and implement a strategic plan for discriminatory profiling and disseminate the plan to all correctional officers.
“Given the documented overrepresentation of black people in prisons, it is disturbing that prison staff are not more aware of the phenomenon of racial profiling and the prejudices and stereotypes that affect those who are subject to it,” said the Tribunal in Commission des droits de la personne et des droits de la jeunesse (Toussaint) c. Procureur général du Québec (Ministère de la Sécurité publique), 2023 QCTDP 21.