Monday's Medley - Issue 03

Each Monday I will provide a potpourri of Quebec (and Canadian) legal developments. Issue 03 takes a brief look at a Quebec Appeal Court ruling that will delight discount brokers while irk consumers, Quebec’s latest effort to impose a nationalist culture, and decision that examines the notion of social profiling.

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Business transactions governed by Securities Act are excluded from Consumer Protection Act

In March 2020, Nicolas Salko opened several online brokerage accounts with National Bank Direct Brokerage, a subsidiary of National Bank Financial Inc.(NBF/NCDB). He used his Canadian dollar RRSP account to buy and sell, in a very short period of time, securities of companies traded on U.S. stock exchanges. To purchase these securities, the funds in his Canadian dollar account first had to be converted into U.S. dollars. When the securities were sold, the proceeds of disposition in U.S. dollars had to be converted back into Canadian dollars before being deposited back into his account. According to Salko, he was charged on each occasion currency conversion fees by NBF/NCDB without any prior disclosure of the content and terms of those fees. As a result, he alleges that he suffered unexpected losses.

Salko believes that by charging him undisclosed fees, the financial institution had violated provisions of the Quebec Consumer Protection Act (CPA), since it had made false or misleading representations to him, had charged him a higher price than advertised and had concealed a material fact.

Salko also asserted that the requirements of good faith prevented the financial institution from charging him fees that were not provided for in his contract and to which he had not consented. By failing to disclose these conversion fees to him in advance, the financial institution committed a general and systematic breach of its duty to inform. As a result, he paid the fees in error or without obligation and is entitled to restitution under articles 1491 and 1554 C.C.Q.

Salko launched a class action suit. The application for authorization (or certification) also applies to 10 other financial companies, including : RBC Direct Investments Inc., RBC Dominion Securities Inc., TD Waterhouse Canada Inc., CIBC Investor Services Inc., Desjardins Securities Inc., CIBC World Markets Inc., BMO InvestorLine Inc., BMO Nesbitt Burns Inc. and Questrade, Inc.

Salko does not have a contractual relationship with these entities, but he alleges that the contracts of all of these various entities suffer from the same “defects” as his contract with NBF/BNCD and that the members’ claims raise identical, related or similar issues.

The class action application, though “vigorously contested” by the financial institutions, was authorized by Quebec Superior Court Justice Christian Immer in Salko c. Financière Banque Nationale inc., 2022 QCCS 3361.

“At issue is Salko’s right to restitution of currency conversion fees paid pursuant to articles 1491 and 1554 Civil Code,” said Justice Immer. However he would not allow the action to proceed under the Consumer Protection Act because it was manifestly unfounded in law. “Even taking the allegations as true, business practices and contracts relating to a transaction governed by the Securities Act, such as the securities transactions at issue, are clearly excluded from the application of the Consumer Protection Act,” said Justice Immer.

Salko appealed the ruling but failed to sway the Quebec Court of Appeal.

“The judge did not err in concluding that the exclusion set out in s. 6(a) C.P.A. (Consumer Protection Act) applies in this case to currency conversion transactions in securities governed by the M.B.A. I therefore move that the appeal be dismissed, held the Appeal Court in Salko c. Financière Banque Nationale inc., 2025 QCCA 74

Quebec’s latest effort to impose a nationalist culture

Quebec has tabled a controversial bill last week that aims to establish a “common culture” by requiring immigrants to learn French upon arrival in Quebec, respect values such as gender equality and secularism, and “participate fully, in French, in Quebec society.”

The proposed legislation, while it contains few concrete measures, marks an explicit break with the tradition of Canadian multiculturalism, and is Quebec’s latest effort to promote French among immigrants and impose a set of nationalist culture values on the province.

In 2019, the CAQ government passed Bill 21, which prevents some public-sector employees from wearing visible religious symbols — a piece of legislation that will be examined by the Supreme Court of Canada.

Also facing legal challenges is the equally disputed Bill 96, which seeks to bolster protection for Quebec’s official language by imposing new French language obligations affecting the language of work, commerce and business, contracts, signs, trademarks, education, health care and even the courts.

In tabling Bill 84, the Quebec government said it will finance organizations such as annual festivals only if they respect the principles of its new immigration integration legislation. The proposed legislation stipulates that the government “may determine the forms of financial assistance” that can be granted to agencies to which the policy applies.

Bill 84 would also modify the Quebec Charter of Human Rights and Freedoms to state that the exercise of individual rights must comply with the province’s model for integrating immigrants.

Opposition to the new bill is already fermenting, and it’s only a matter of time before it will be the object of a litany of legal challenges. A Quebec human rights organization and a Muslim group have said that the government’s new bill will further stigmatize newcomers and is designed to force minorities to conform to a narrow vision of Quebec culture.

The Ligue des droits et libertés denounced the government of “increasingly conflating immigration with various social problems related to the state’s disengagement” in areas such as the spreading housing crisis, homelessness as well as the dearth of daycare spaces and the “disintegration” the health network.

The National Council of Canadian Muslims (NCCM) described Bill 84 as “a troubling piece of legislation that is designed to force minorities to conform to a very narrow vision of Quebec culture.”

Notion of social profiling under the microscope

A Montreal man ticketed nearly 230 times over a four year stretch was not the subject of discriminatory profiling and harassment based on social status, ruled the Quebec Human Rights Tribunal in a decision that examined the notion of social profiling.

But Judge Christian Brunelle warned that the number of people who are forced to live in vehicles will rise due to a lack of affordable housing and resources, and hopes that the judgment will “raise awareness and mobilize” municipal authorities and “those in positions of authority who have to intervene in such situations.”

The Quebec Human Rights Commission filed a complaint on behalf of Guylain Levasseur who felt targeted by the tickets he received, the majority of which were for illegal parking.

The Human Rights Commission argued that the City of Montreal and four of its police officers violated section 10 of the Quebec Charter of Human Rights and Freedoms, which prohibits discrimination in the recognition or exercise of the other rights and freedoms it guarantees.

In a landmark decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII), the Supreme Court held that section 10 requires the plaintiff to prove three elements — a “distinction, exclusion or preference,” based on one of the grounds listed in the first paragraph of section 10, and which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom. If these three elements are established, there is “prima facie discrimination,” held the SCC.

But to date, case law has not had “the opportunity to define the concept of social profiling,” notes Judge Brunelle in an 88-page decision in Commission des droits de la personne et des droits de la jeunesse (Levasseur) c. Ville de Montréal (SPVM), 2025 QCTDP 2.

Inspired by the Bombardier decision, the parties agreed that:

“Social profiling means any action taken by a person or persons in a position of authority with regard to a person or group of persons, for reasons of safety, security or protection of the public, which is based on factors of actual or presumed membership, such as social condition, without any real reason or reasonable suspicion, and which has the effect of exposing the person to different scrutiny or treatment.
“Social profiling also includes any action by persons in authority who apply a measure disproportionately to segments of the population on the basis of their actual or presumed social status.”

Like the definition of racial profiling, the definition of social profiling refers to distinct and different situations, held Judge Brunelle. The concept of social profiling refers to prejudicial differential treatment based on the fact that one or more targeted individuals belong to a group characterized in particular by their social status, added Judge Brunelle.

Profiling also includes police action consisting in applying a legal measure disproportionately to one or more persons on the basis of one of the personal characteristics listed in Article 10 of the Charter, said Judge Brunelle.

“Individual discriminatory profiling is a form of direct discrimination because it occurs when a ground of discrimination has played a role in the decision to target and treat an individual differently, whether this action is isolated or repeated,” said Judge Brunelle. “If the ground for discrimination, in this case social condition, was not a factor in the treatment inflicted on the individual, then this is not profiling as such and it is therefore wrong to invoke a situation of indirect profiling, a real contradiction in terms.”

But Judge Brunelle concluded that the Quebec Human Rights Commission failed to demonstrate by a preponderance of evidence that Levasseur was the victim of discriminatory profiling and harassment due to his social condition.

“A person who repeatedly commits offences cannot reasonably complain about receiving a large number of tickets,” said Judge Brunelle. “This person becomes the architect of his own misfortune when, despite the warnings he receives and his ability to measure their effects, he persists in systematically contravening the rules of law.”

Law in Quebec