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Psychological harassment and sexual violence in the workplace

Employers’ obligation to protect psychological well-being of workers expanded by Quebec bill

The Quebec government, in an initiative welcomed by business and labour, is in the final stages of passing legislation that aims to further prevent and fight psychological harassment and sexual violence in the workplace by adding legal presumptions to make it easier to prove an employment injury or illness stemmed from violence at the hands of a co-worker or employer representative.

Bill 42, now before the Quebec National Assembly undergoing a clause-by-clause examination, introduces a definition that encompasses all speech and language of a sexual nature, extends the time limit for filing a claim, broadens the general duties of employers’ obligation to protect the psychological well-being of employers, and introduces harsher penalties for non-compliance. The bill also compels arbitrators who take on grievances dealing with psychological harassment to take mandatory training.

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Asylum seekers gain access to subsidized daycare

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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McGill law professors stage one-day strike to spur productive negotiations

McGill law professors stage one-day strike to spur productive negotiations

A newly certified bargaining unit representing McGill law professors staged a one-day strike after negotiations with the university administration over its first collective agreement stalled, the first time since the university’s founding two hundred years ago that professors erected picket lines on campus.

The Association of McGill Professors of Law (AMPL), handed a strike mandate for a maximum of five days by its members in mid-December, asserts that the university is negotiating in bad faith in spite of the intervention of a government-appointed conciliator by arriving at bargaining sessions unprepared, refusing to meet on a frequent and regular basis, and rebuffing attempts to acknowledge that conditions that have been agreed upon cannot be unilaterally changed by the university and applied to AMPL members without their consent.

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French language charter - Bill 96

French Language Charter draft regulations provides more clarity but questions remain

An eagerly awaited draft regulation intended to yield guidance on amendments introduced by Bill 96 to the Charter of the French Language sheds light on certain areas but raises additional questions, is more restrictive, has more onerous requirements and risks alienating some sectors of the business world, according to legal pundits.

The draft Regulation to amend mainly the Regulation respecting the language of commerce and business, released nearly 18 months after Bill 96 amendments to the French Charter received royal assent, mainly deals with the public display of trademarks and French language labelling of products, but also touches on adhesion contracts and commercial documents.

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Crown prosecutors seeking judicial review

Crown prosecutors taking Quebec government to court in wage dispute

Days after Quebec’s adjudicators issued an ultimatum due to a lack of “concrete proposals” over their demands for major pay hikes, Quebec Crown prosecutors, “dismayed and insulted” by the Quebec government’s “bad faith” during negotiations, filed a motion before Quebec Superior Court to invalidate a government decision that affects their working conditions, the latest labour conflict to surface between the Quebec government and leading legal actors.

The application for judicial review and motion, the second legal challenge the Quebec Association of Public Prosecutors for Criminal and Penal Prosecutions has mounted over the past three months, was launched after the Quebec government unilaterally rejected or modified recommendations made by an arbitrator appointed by both parties over normative conditions, including workload, family leave and remote working, said Guillaume Michaud, the organization’s president.

“The aim of this appeal is to get the government to follow the recommendations of an independently appointed arbitrator,” explained Michaud. “If it doesn’t, we end up with a useless mechanism. This means that on day one when I sit down with the government to negotiate, I know that in the end it can decide what it wants. It makes no sense for the other side to have a say at the end and then decide what it wants.”

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Quebec Judicial Council seeking judicial review over bilingualism requirements of provincial court judges

Quebec Judicial Council and provincial government still at odds

The Quebec Judicial Council and the Quebec Justice Minister still do not see eye-to-eye.

A month ago Justice Minister Simon Jolin-Barrette and Henri Richard, the new Chief Judge of the Court of Quebec reached an agreement over bilingualism requirements for new judicial appointments that seemingly put an end to an appeal for judicial review before Quebec Superior Court. The review seeks to declare unconstitutional and invalid certain legislative and regulatory provisions adopted in 2022 over selection criteria for candidates for the position of judge of the Court of Québec or of a municipal court.

The December 6, 2023 agreement reiterates that the government is responsible for appointing judges while the Chief Justice of the Court of Québec is responsible for assigning judges, in keeping with the principle of judicial independence.

The agreement also stipulates that a proportion of bilingual judges will be required in certain regions and judicial districts of the province. In Montreal, for example, 90 per cent of judges will have to be fluent in English for the criminal and penal divisions as well as in the youth and civil divisions. But there will be no bilingualism requirement for regions such as the Saguenay-Lac-Saint-Jean, Québec-Chaudière-Appalaches and Mauricie-Bois-Francs-Centre-du-Québec regions.

“The parties agree that this Agreement constitutes a transaction within the meaning of Article 2631 of the Civil Code of Quebec and puts an end to the litigation that opposed them before the Superior Court,” according to the agreement. “Consequently, the parties undertake, before December 11, 2023, to file a notice of settlement out of court and to take the necessary steps to formally terminate the proceedings before the Superior Court, which have become theoretical.”

There is one problem.

The Quebec Judicial Council, one of the parties to the judicial review,  decided it was in the best interest to continue with the judicial review appeal, taking the position that the constitutional issues raised by it were still relevant and should be decided by the courts.

The Quebec Attorney General countered by filing an application to dismiss the appeal. It also sought a declaration that disqualifies the law firm Fasken from representing the Judicial Council because there was a divergence of interest between Chief Judge Richard, who wished to put an end to the litigation, and the Judicial Council which wanted the appeal to go forward. The Attorney General claimed that the Fasken law firm may have benefited from confidential information provided by the Chief Judge, and using such information to counter the Chief Judge’s desire to settle the case would place it in a conflict of interest and bring the administration of justice into disrepute. It also argued that by continuing to act for the Judicial Council in the current circumstances, Fasken would be obliged to choose between the interests of the Judicial Council and those of the Chief Judge Richard.

But Quebec Superior Court Justice Serge Gaudet rejected the Attorney General’s application to dismiss the appeal and its efforts to disqualify Fasken.

Justice Gaudet pointed out that in the case at bar, Fasken’s application for disqualification does not come from Chief Judge Richard, Associate Chief Judge Hughes or Associate Chief Judge Bélanger — who are the former clients of Fasken with respect to the action — but rather from the opposing party in this litigation.

The courts are more circumspect when an application for disqualification comes not from a client or former client to whom a lawyer owes a duty of confidentiality or loyalty, but from a third party to whom the lawyer owes no such duty, and a fortiori when that third party is the adversary in a dispute, noted Justice Gaudet.

“There is then an increased risk that such an application for disqualification will serve strategic purposes that have little to do with maintaining the consideration and integrity of the judicial system,” said Justice Gaudet in Conseil de la magistrature du Québec c. Procureur général du Québec, 2024 QCCS 14.

Moreover, added Justice Gaudet, the conflict of interest rules must not be interpreted “too absolutely,” without taking into account the specific context of each case. Justice Gaudet also held that fundamentally Fasken was not awarded a new mandate that Fasken against its former clients, but rather the same mandate that is continuing without them.

“There is only one mandate here that was given to Fasken by the (Judicial) Council and the Chief Judges, and the fact that the Chief Judges settled the dispute out of court with the Minister, while the Council wishes to continue the appeal, in no way means that a new mandate is being undertaken against the Chief Justices by their former lawyer,” held Justice Gaudet.

“In other words, Fasken, by continuing to act for the Council in the pursuit of what was previously a joint mandate, is in no way acting against its former clients. It is not acting against a former client to pursue litigation that is no longer of interest to that client.”


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

Quebec Justice Minister openly derides provincial Judicial Council


Strip search not discriminatory.

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.

However, the Tribunal refused to issue an order that would compel the Attorney General of Quebec to provide mandatory training to correctional system staff to ensure that they conduct strip searches with dignity and privacy. The Tribunal found that the regulations, directives, instructions and policies in place dealing with strip searches comply with the Quebec Charter, and that training was already being provided to prison guards.

In Procureur général du Québec c. Commission des droits de la personne et de la jeunesse (Duperron), 2024 QCCA 12, the Appeal Court, informed by the Supreme Court of Canada’s decisions in Sharma, Ward and Weatherall, found that the complainant was not treated like his fellow inmates and that he was not treated as all persons incarcerated in Québec detention facilities must be treated.

But the Appeal Couryt held that the distinction in this case “owes nothing to the protected characteristic of sex,” as per s. 10 of the Quebec Charter.

“The complainant was not only treated differently from female prisoners, he was treated differently from all prisoners, male or female,” held the Appeal Court. “On the fateful day, he was not given the benefit of a policy applicable and applied to all prisoners. This undermines the argument of unequal treatment based on gender, i.e. where gender was a factor.”

According to the regulatory framework applicable to all provincial detention facilities, strip searches are supposed to be conducted by two members of staff: the person conducting the search (by visual inspection), who stands at a certain distance from the detainee, and the person assisting him or her for security reasons. Except in an emergency, the prison guard conducting the strip search must be of the same sex as the prisoner being searched.

That’s not what happened in this case. The guard who was assisting the strip search for security reasons was a female prison guard. “But this is not enough to establish a distinction within the meaning of s. 10 of the Quebec Charter,” held the Appeal Court in a per curium and unanimous 17-page decision. “The complainant must also have been treated differently from other people in a comparable situation.”

The Appeal Court heeded guidance from Weatherall, which held that the effect of cross-gender searching is different and more threatening for women than for men and that  different treatment may not be discriminatory.

In the case at bar, the Appeal Court found that the female prison guard who was assisting the strip search saw the complainant naked briefly. But that did not breach ss. 25 or 26 of the Quebec Charter in light of Weatherall. Under s. 25, every person arrested or detained must be treated with humanity and with respect, while 26 states that every person in a correctional facility has the right to separate treatment appropriate to his sex.

Weekly recap - Jan 20, 2024

Weekly recap – 20 Jan 2024


A road construction company has been ordered to pay $1.5 million under an agreement to settle an action concerning alleged bid-rigging for paving contracts awarded by the ministère des Transports du Québec (MTQ) in the Granby region of Québec, according to the Competition Bureau.

The payment is part of a settlement between the Public Prosecution Service of Canada and Construction DJL Inc. filed before Quebec Superior Court.

The settlement, which ends the Competition Bureau’s investigation into the role the company played in a bid-rigging scheme between 2008 and 2009, took into account that the company previously reimbursed overpayments related to the bid-rigging scheme through the Government of Québec’s Voluntary Reimbursement Program. It also took into consideration that the individuals involved in the scheme no longer work for the company.

Quebec Superior Court ordered Construction DJL to follow a corporate compliance program and maintain appropriate control procedures to ensure its effectiveness.

Criminal charges were laid in September 2023 before the Court of Quebec against two individuals in connection with alleged bid-rigging for paving contracts awarded by the ministère des Transports du Québec. One of the executives was the vice president of operations while the other was vice president, secretary and general manager.



The battle over how to classify digital assets is still raging.

A series of recent decisions by the Quebec Financial Markets Administrative Tribunal held that crypto contracts, non-fungible token contracts and crypto futures meet the definition of securities because they are investment contracts.

In a closely watched crypto case south of the border, Judge Jed Rakoff of the Southern District of New York held that four crypto tokens offered by Terraform Labs were unregistered securities. “Defendants’ first argument (that those digital assets are not investment contracts) in effect asks this Court to cast aside decades of settled law,” said Judge Rakoff in 23-cv-1346 (JSR). “The Supreme Court held in no uncertain terms that ‘an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.’

The U.S. Securities and Exchange Commission sued Terraform and co-founder Do Kwon, alleging they offered and sold unregistered securities as part of a fraudulent scheme that wiped out at least $40 billion in market value. It is part of the regulator’s efforts to crack down on unregistered securities, including the likes of Coinbase, Kraken, and Ripple.



Smokers beware. Landlords too.

The Quebec Rental Board gave a landlord the go-ahead to evict a tenant from Joliette, some 70 kilometres east of Montreal, in part because he refused to stop smoking cigarettes and marijuana. In another case, a landlord was ordered to pay $1,000 in moral damages to a tenant because she experienced “various moral inconveniences” due to cannabis odours and smoke seeping into her home.

All told, the Quebec Rental Board heard more than 50 cases in 2023 dealing with complaints of cigarette and marijuana smoking.

The price that condominium owners can pay for breaching smoking regulations can be far steeper. In Syndicat des copropriétaires du condominium Club Marin II c. Mokaddem, 2023 QCCS 4126, Quebec Superior Court Justice Martin Sheehan ordered a condo owner to pay more than $100,000 in extrajudicial fees to a condo corporation. He was also ordered not to smoke cannabis in the building, his balcony, or in any and all common areas of the building. “Bylaws prohibiting co-owners from smoking in their private areas have already been deemed valid by the courts,” noted Justice Sheehan. “These are justified by the health risks posed by second-hand smoke and the inconvenience caused by odours.”



The Federal Court of Canada became the latest court to issue a notice over the use of artificial intelligence in court proceedings.

Following on the heels of other courts such as Quebec Superior Court, Alberta courts, Nova Scotia’s Supreme and Provincial Court, and the Manitoba Court of King’s Bench, the Federal Court will require all parties, lawyers and intervenors to issue a declaration when using AI to prepare documentation filed with the Court.

Barry Sookman, senior counsel and co-chair of McCarthy Tétrault’s technology law group, believes the requirement is “overly broad and could actually impede the use of innovative legal tools.” It is problematic, states Sookman, that the declaration appears to be required even where a human is in the loop and has done a proper job of verifying the AI generated content.

Quebec pension provision is discriminatory

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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Lawyer disqualified from proposed class action

Montreal lawyer disqualified as representative counsel in proposed cryptocurrency class action

In a case that deals with the bounds of “entrepreneurial lawyering” and whether it exceeds the “proper limits of ethical rules,” Quebec Superior Court disqualified a Montreal lawyer as the representative’s counsel in a proposed class action suit seeking compensatory and punitive damages for individuals who bought or sold cryptocurrencies from Shakepay inc.

The proposed class action in essence alleges that Shakepay charged hidden commissions, contravening the Consumer Protection Act, Civil Code of Quebec, and the Competition Act.

Justice Lukasz Granosik said that disqualifying a lawyer requires a “great deal of circumspection.” But a combination of “minor transgressions” occurred in this case crossed the line, held Justice Granosik in Abicidan c. Shakepay inc., 2024 QCCS 11.

At issue was the Application for Authorization (or Certification) for the class action. There were two versions:

The first version stipulated:

On September 27, 2022, the Applicant sent a message to Shakepay’s online chat support explaining the above situation and asking for an explanation, as it appears from the chat transcript.

The applicant, Shay Abicidan, amended the application and the relevant claim now reads:

On September 27, 2022, some five days after the transaction mentioned in paragraph 95, the Applicant directed his attorney to send a message to Shakepay’s online chat support, using Applicant’s Shakepay account, describing the above situation and asking for an explanation, as it appears from the chat transcript.. As it appears from this chat transcript, this communication was meant to obtain a proof and an admission from Shakepay that it was conscious of its practice, which the Applicant considers illegal, and the exchange of messages did indeed contain this proof and admission. (my emphasis)

Amendments to modify allegations are commonplace as are actions taken by lawyers of record in preparation for proceedings, particularly in class actions, said Justice Granosik. But in the case at hand,

  • by failing to draft an allegation correctly, “knowing full well that it is misleading and does not correspond to the truth;”
  • contacting the representative of a person, “who will inevitably become an opposing party a few days later, for the purpose of extorting an admission essential to part of the syllogism of the proposed class action”
  • and, above all, “usurping the identity of one’s client for that purpose, creates a malaise such as, in my opinion, to bring the administration of justice into disrepute.”

“I am convinced that it would not be acceptable to a reasonable, well-informed person (or to a jurist or layperson) for a lawyer to impersonate his client, the co-contractor of the defendant, for the avowed purpose of obtaining a crucial admission in anticipation of an imminent judicial proceeding,” said Justice Granosik, adding that articles 193 of the Civil Code of Procedure and 111 and 116 of the Code of ethics of advocates are at issue here.

But even though the lawyer was disqualified, the plaintiff cannot be held liable for any breach, personally or by proxy, held Justice Granosik. Shakepay failed to show that the application for authorization was ill-founded, frivolous or dilatory or that it was used in an excessive or unreasonable manner, added Justice Granosik. 

As a result, the application for authorization may stand, and the proposed class action representative may continue his action.


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Workplace mental injury

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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