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Quebec access to justice bill opens door for notaries to sit on provincial court bench

An access to justice bill that will make free mediation mandatory and arbitration automatic for cases under $5,000 took the Quebec legal community by surprise as it also unexpectedly opens the door for notaries to be appointed to the bench of provincial courts.

Bill 8, tabled by the Quebec government this month, aims to curb long delays afflicting small claims courts, implements a simplified and accelerated civil procedure for matters brought before the Court of Quebec with a value of between $15,000 and $75,000, and will compel the provincial Judicial Council to publish an annual report and be audited every five years by the Auditor General, all of which are developments viewed positively by the Quebec Bar.

“We are pleased that several provisions of Bill 8 echo requests made by the Barreau to the Justice Minister on measures that could help facilitate access to justice,” said Catherine Claveau, the bâtonnière of the Barreau du Québec. “The provisions relating to mandatory mediation and arbitration is an excellent avenue to improve access to justice and a concrete way to promote alternative methods of dispute resolution.”

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Competition Bureau to investigate Quebec real estate services market

The Competition Bureau will be investigating conduct by the Quebec Professional Association for Real Estate Brokers (QPAREB) and its subsidiary, Société Centris, regarding real estate data sharing restrictions.

The Association, a non-profit organization with more than 14,000 real estate brokers and agencies, manages the multiple listing service (MLS) that collects Quebec real estate transaction data, which Quebec real estate brokers use as part of their brokerage services.

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Quebec Appeal Court sets precedent over First Nations police underfunding

Pekuakamiulnuatsh Takuhikan

In an “important precedent,” the Quebec Court of Appeal held that Ottawa and Quebec breached their duty to act honourably after it refused to adequately finance the police department of a First Nation to ensure that its services were equal in quality to those offered to non-Indigenous communities, according to aboriginal law experts.

The ruling, deemed by pundits as a “pretty striking way of reading” Canada’s agreements with First Nations on programs and services, ordered both the federal and the Quebec government to pay the Pekuakamiulnuatsh Takuhikan First Nation, located in Quebec’s Saguenay-Lac-St-Jean region, $1.6 million to cover years of underfunding of its police force. A year ago, the Canadian Human Rights Tribunal concluded in Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4 that the same First Nation were victims of discrimination due to inadequate police funding, a decision Canada is seeking judicial review.

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Municipal bylaws over firearms and hunting must be reasonable, rules Court

Quebec municipalities will likely have to review their firearms and hunting bylaws after a farmer who received a fine for shooting a deer on his property waged a successful legal battle that prompted Quebec Superior Court to strike down a municipal bylaw that prohibits hunting as it ran afoul of provincial and federal legislation.

The decision, one of a handful that examines the extent to which municipalities can regulate the use and possession of weapons on their territories while respecting provincial hunting standards, underlines that Quebec municipalities have the power to pass bylaws over the use of weapons and can add safety rules set out in provincial standards, added the legal pundits. But these measures, while a “complex exercise,” must clearly set out their objectives, the means of enforcement and must be exercised in a reasonable manner without exceeding the legislative framework, added the lawyers.

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Man not criminally responsible because of sexsomnia

A 46-year old Montrealer accused of sexually assaulting a friend was found not criminally responsible for his actions after Court of Quebec Judge André Perreault found that he suffered from the rare disorder of sexsomnia, a defence that is seldom successful.

The episode of sexual somnambulism constituted an “automatism,” or an act committed during a state of unconsciousness or grossly impaired consciousness, but “with mental disorder, in the legal sense of the term,” held Judge Perreault, whose verdict neither acquitted nor convicted Yannick Giguère. 

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Appeal Court underlines employers do not have a free pass to ask questions to potential employees

A prospective police officer who alleged that the Quebec provincial police force withdrew its pre-employment offer because he has Tourette Syndrome was rebuffed by the Quebec Court of Appeal after it found instead that he was not forthright and did not act in good faith during the hiring process.

In a decision in line with prior jurisprudence, the Quebec Appeal Court sheds new guidance that advises employers to exercise caution when drafting questionnaires, particularly medical queries, even in cases when pre-employment offers have been made, according to employment and legal experts. The unanimous per curium ruling acknowledges that it is a difficult balance to achieve between asking overly broad questions that may be deemed to be discriminatory under the Quebec Charter of human rights and freedoms and drafting “too specific” questions that may deprive employers of relevant and necessary information.

“It provides some guidelines to employers,” remarked Finn Makela, a law professor at the Université de Sherbrooke where he teaches labour and employment law. “One, it’s not an open bar. Employers can’t just ask super vague questions. And second, the decision also confirms the jurisprudence that the employer needs to justify in their specific circumstances why questions are related to job functions. So that gives some guidance. But, as the Cour of Appeal says, it’s not always easy.”

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Five years later, and still waiting for trial on merits

Telling remarks by Quebec Superior Court Justice Michel Pinsonnault issued during the Christmas holidays that reveals the state of Quebec’s justice system, an issue I have written about repeatedly over the years.

In Sprigg c. Cucuzzella, 2022 QCCS 4774, Justice Pinsonnault remarked:

[2]  As incredible as it may seem, this oppression remedy action instituted more than five years ago in November 2017 has still not been scheduled for trial on the merits.

[66 Five years having elapsed since the filing of the Oppression Remedy Demand, the irreconcilable business relationship between the parties herein must come to a much-needed resolution. Without casting any blame on anyone, given the stance adopted by each side, their commercial dispute can only be resolved with a judgment on the merits of each party’s contentions.

[70 The Court will not allow one party to take undue advantage of the other party in this judicial saga without due process.

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Obtaining punitive damages from police remains “high bar”

The challenge for plaintiffs to obtain punitive damages against police was plainly illustrated yet again according to legal experts after four victims of the 2012 election shooting in a Montreal downtown venue that targeted then-premier-elect Pauline Marois of the Parti Québécois won a partial victory following a court decision that awarded them nearly $300,000 in pecuniary and non-pecuniary damages.

Quebec Superior Court Justice Philippe Bélanger found that the provincial and Montreal police forces committed a fault of omission and failed to ensure to ensure the safety of the public after they carried out a flawed security plan that allowed a gunman to kill lighting technician Denis Blanchette and seriously injure a second technician who was struck by the same bullet. Justice Bélanger ordered damages to be paid to Blanchette’s colleagues who survived the shooting after they successfully argued that they suffered from post-traumatic stress and other psychological damage following the shooting.

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Quebec justice system in the midst of ‘collapsing, say leading legal actors

The Quebec justice system is in the midst of “collapsing,” sagging under the weight of underfinancing and bedevilled by a “catastrophic” shortage of court personnel, with more than 20 per cent of employees resigning in a year, prompting leading legal actors to describe the situation as “embarrassing” and even more alarmingly, kindling a public lack of confidence in the province’s justice system.

The situation has never been so dire, worse than late this spring when a vexed legal community warned the Quebec government that the justice system, mired in a series of crippling labour standoffs that spurred mounting adjournments, was desperately in need of more funds to prop up the justice system. But while tense labour relations with a host of legal actors have subsided since the fall thanks to new collective agreements and a new legal aid accord, legal pundits assert far more has to be done to halt the exodus of courtroom personnel who are leaving in droves because remuneration is simply not competitive.

“There is a crisis in the justice system that has led to a crisis of confidence,” noted Catherine Claveau, president of the Quebec Bar. “And I, as the president of a professional order whose primary mission is the protection of the public, when the situation of underfunding in particular means that our institutions are undermining the right of citizens to have access to effective and quality justice, well for me, this corresponds to a real crisis.”

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Sperm donor granted visitation rights

A sperm donor was granted access rights by the Quebec Court of Appeal after he was deemed as a “significant” third party whose presence “could probably benefit” the child in a decision that has perplexed some family law experts.

The Appeal Court decision has ostensibly watered down the notion of significant third parties, leaves open the question whether a similar finding would have been reached if the third party did not have a biological connection with the child, and serves as a timely reminder that parents involved in a “parental project,” or assisted procreation, should carefully consider whether they want to hand third parties access rights, according to family law experts.

“It’s an assisted reproduction project that deviated into something else, and this is a phenomenon that we are now seeing and will be seeing more often,” remarked Michel Tétrault, a leading family law expert and author of a series of tomes on Quebec family law. “From the time that these ladies allowed access to take place, a form of status quo was created. That’s a message that needs to be sent out: the moment you allow a third party who is supposed to be in no way involved in the parental project to become involved, it opens a door.”

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Disclosing documents to police does not necessarily entail a waiver of privilege, holds Quebec Appeal Court

A voluntary disclosure of a report protected by privilege to assist police in a criminal investigation does not quash the privileges attached to the document held the Quebec Court of Appeal in overturning a lower court decision, the latest indication that case law surrounding privilege continues to evolve, according to a legal expert.

In a decision that reviews and revisits Quebec case law surrounding privilege, the Quebec Appeal Court held that it would be contrary to public policy for the disclosure of privileged documents in criminal proceedings to “somehow” have the effect removing privileges attached to those documents. The waiver of lawyer-client privilege must be clear and unequivocal, added the Appeal Court in Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394.

Disclosure to a third party information protected by solicitor-client privilege in principle entails waiver of the privilege but the Quebec Court of Appeal emphasizes that context must be considered, which must take into account all the circumstances in the case, noted Montreal litigator with Lavery de Billy LLP, who recently published an article entitled “Professional secrecy and testimonial immunity” for the legal encyclopedia JurisClasseur Québec.

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