Law in Quebec

News about Quebec legal developments

Rulings

  • 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.”

    (more…)

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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.

    (more…)

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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.

    (more…)

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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.” (more…)

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  • Mandatory retirement clauses breach Quebec Charter, rules court

    Professional services firms that have mandatory retirement policies and provisions that require partners to divest their ownership shares solely on the basis of age are discriminatory and in breach of the Quebec Charter of human rights and freedoms held Quebec Superior Court in a ruling that has the legal community buzzing over its implications.

    In a case that pitted a Montreal municipal and labour and employment law firm against its founder, the decision by Quebec Superior Court Justice Stéphane Lacoste is expected to have wider repercussions than the thorny issue of mandatory retirement, according to legal observers. Following the decision in DHC Avocats inc. c. Dufresne, 2022 QCCS 58, typical arrangements made by professional services firms in succession planning such as “unpartnering” or changing the status of their senior partners while still allowing them to work in the firm may be called into question, added legal experts. (more…)

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  • Montreal hospital ordered to pay $15,000 to parents

    The McGill University Health Centre was ordered by small claims court to pay $15,000 to the parents of a 33-year-old man who died from complications associated with a diabetic coma while undergoing chemotherapy. (more…)

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  • Notary found guilty of misappropriation

    A Quebec notary with drug problems and in financial straits was found guilty of misappropriating more than $50,000 from a client by a disciplinary committee, the eighth case heard by disciplinary councils over the past year dealing with pilfering by legal professionals, something that has been described as the profession’s dirty little secret.

    Daniel Girouard, who was admitted to the Chambre des notaires in 1986, was found guilty of breaching articles 1, 13, and 56 (7) of the Code of ethics of notaries — of failing to act with dignity, abiding by the strictest rules of integrity, and misappropriation. Girouard misappropriated $59,250 held in his trust account, and used it to pay his drug debts.

    In an email to an investigator, Girouard said:

    “I know anyway that I will be struck off. I am addressing you in order to minimise the misery of the parties in this case. As for the consequences for me vis-à-vis the Chamber and the tax authorities, I take responsibility.”

    The disciplinary committee will determine his sanction at a later date. But it’s moot. Girouard has resigned.

    The victim was reimbursed by the professional corporation’s indemnity fund.

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  • Court deems COVID-19 measures a “misfortune”

    COVID-19 is still wreaking havoc on people’s lives.

    But it’s heartwarming to see that the courts are taking into account hardship.

    In a brief bankruptcy ruling in Syndic de Deutsch, 2022 QCCS 222, Quebec Superior Court held that:

    [14] There is no doubt that the measures put in place by the federal and provincial governments are a “misfortune” (“un malheur”) and the Court must consider even sua sponte the application of Article 175 of the Bankruptcy and Insolvency Act for bankruptcies filed after March 2020.

    [15] In this particular case, the requirements of Article 175 of the Bankruptcy and Insolvency Act are not met however I consider the economical context.

    [16] Neither the Superintendent of Bankruptcy nor any creditors have opposed the discharge of the Bankrupt.

    [14] The bankruptcy and Insolvency Act’s objective is the social and economical rehabilitation of an honest but unlucky debtor and I hereby grant Ms. Irit Deutsch an Absolute Discharge from her bankruptcy. (my emphasis).

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  • Religious corporation loses battle over perpetual contracts

    In 1945 a religious corporation acquired from the City of Sherbrooke a piece of land, adjoined to a property it already owned, to provide a resting place for weary nuns, or “religieuses fatiguées.”

    It paid $200. But the contract includes a clause by which the City obtains the privilege to repurchase the land at the price sold in the event that the religious outfit decides to resell it.

    Les Filles de la Charité du Sacré-Coeur-de-Jésus launched an action to have the right of pre-emption be declared null and void or, in the alternative, that a time limit be set for its lapse.

    The Quebec Court of Appeal dismissed the appeal. Heeding guidance by the Supreme Court in Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, the Appeal Court reaffirmed that the only perpetual contracts that are invalid as contrary to public policy are those where perpetuity “undermines” fundamental values of society.

    “It is true that the appellant cannot freely dispose of this land, since it must allow the respondent to buy it if it decides to sell it, but this is not shocking,” said the Appeal Court in Filles de la Charité du Sacré-Coeur-de-Jésus c. Ville de Sherbrooke, 2022 QCCA 112.

    “The appellant has, to date, used the land in the manner it intended at the time of purchase and can continue to do so since it is only if it decides to sell it that it will have to allow the respondent to buy it back. It is true that this limits one of the components of her right of ownership, in this case abusus, but this limit does not undermine a fundamental value of society, especially since many other dismemberments of the right of ownership are authorized in Quebec law.”

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  • Insurer loses battle against Quebec tax authorities

    Insurers are required to collect tax on insurance premiums, and remit it to the provincial government, within a certain allotted time.

    When clients sent a cheque or made an electronic payment to pay their premiums before it was due on the effective date of the policy,  one insurer accepted the sums as soon they were received but did not yet remit to the tax authorities because the policy was not yet in force.

    The Quebec Court of Appeal nixed that practice.

    The insurer, as per s. 527 of the Act respecting the Québec sales tax (Act), must in its capacity as agent account for the tax collected in the preceding calendar month at the end of the month, held the Appeal Court in Agence du revenu du Québec c. Assurances générales Desjardins inc., 2022 QCCA 57. Whether or not the premium is due does not change the fact that the insurer has collected the amount of tax on insurance premium paid by the insured and must therefore remit it to the Minister, added the Appeal Court.

    “There is no doubt that, where the premium is paid on the day the contract comes into force, the tax on insurance premiums collected must be remitted to the Minister in accordance with the terms of section 527 of the Act.

    “The issue at stake here is that the customer voluntarily fulfills his obligation, the payment of the amount corresponding to the premium, which includes the tax on insurance premiums, before the arrival of the suspensive term agreed between the parties and that the (insurer) collect this amount although they are technically not yet entitled to it.”

    On top of that, under article 2398 Civil Code, this contract is formed as soon as the application is accepted by the insurer, even if it takes effect at a later date, added the Appeal Court. The enforceability of the reciprocal obligations of the parties is then simply suspended until the date fixed, concluded the Appeal Court.

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  • Quebec’s vaping legislation upheld by Appeal Court

    The Quebec Court of Appeal overturned parts of a lower court ruling that struck down certain provisions of the provincial Tobacco Control Act and upheld the constitutionality and right of the province to apply its tough and comprehensive tobacco legislation on e-cigarettes, including robust restrictions on vaping advertising. (more…)

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  • $115,000 in damages awarded to victim of wrongful arrest

    Three police officers and the City of Montreal were jointly and severally ordered by Quebec Superior Court to pay a Montrealer $115,000 in damages following a wrongful arrest that occurred more than nine years ago. (more…)

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  • Justiciability a major hurdle for climate change lawsuits, assert legal experts

    A proposed climate change class action suit by a Montreal environment group against the federal government was denied certification by the Quebec Court of Appeal after it held that it was not justiciable, the latest in a series of climate change litigation cases that have been thwarted by the justiciability doctrine, prompting questions over the successful viability of using broadly framed Charter arguments in climate justice suits in Canada.

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  • Quebec appeal court serves timely reminder over linguistic rights

    Less than a year after delivering a stinging rebuke to the Quebec government over recurring systemic unmitigated delays in securing trial transcripts that disproportionately affect English-speaking appellants, the Quebec Court of Appeal served a timely reminder over the importance of linguistic rights after it ordered a new trial for a convicted drug trafficker whose right to be tried in English was violated.

    The decision, brimming with practical guidance aimed particularly at trial judges and Crown prosecutors, reiterates that courts that hold criminal trials “must be institutionally bilingual,” restates that it strongly favours consecutive translation over simultaneous interpretation in criminal trials, and prohibits so-called whispering interpretation from being practiced as it is “inconsistent” with s. 530.1(g) of the Criminal Code and guidance issued by the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951.

    “This is a timely decision,” noted Martine Valois, a law professor at the Université de Montréal who wrote a book on judicial independence. “This is a problem, and it does no service to the accused or the justice system. This is not a political and linguistic issue, and it has nothing to do with the French fact in Quebec or the survival of French language. It’s really an issue over the rights of the accused (and ensuring that the) justice system be institutionally bilingual.”

    The ruling also underscores yet again that the Quebec justice system is plagued by a systemic lack of resources, added Quebec City criminal lawyer Julien Grégoire of Gagnon & Associés, avocats.

    “It’s very difficult to understand how, five years after the Jordan decision, we in Quebec can still find ourselves in this situation,” said Grégoire. “A major drug trafficker was granted, unfortunately but fittingly as far as I am concerned, a new trial to basically allow him to have access to fair justice in the language of his choice and in a process that minimally but truly respects his right to a trial in the language he understands best.”

    (more…)

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Law in Quebec
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