Quebec appeals landmark ruling that affirms self-governance for Indigenous peoples

The Quebec government will appeal an Appeal Court decision that marked the first time the courts have clearly recognized a self-government right as a right of all Indigenous peoples in Canada.

The Quebec Appeal Court held that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.

“It is a question of jurisdiction between the Quebec and Canadian governments, and we are pursuing the relationship with the Aboriginal communities,” said Quebec Minister of Justice Simon Jolin-Barrette, explaining why the provincial government is seeking leave to appeal before the Supreme Court of Canada.

“It is possible to have a partnership with the Aboriginal communities in order to take charge of youth protection, but this must be done within the division of powers that exists in the Constitution,” added Jolin-Barrette.

Continue reading “Quebec appeals landmark ruling that affirms self-governance for Indigenous peoples”

Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts

The architecture of the Canadian Constitution has been dramatically altered, with the emergence of a third level of government, after the Quebec Court of Appeal ruled that Indigenous people possess an existing right of self-government that is protected by section 35 of the Constitution Act, 1982, according to legal experts.

The “bold” decision, a reference case brought by the Attorney General of Québec after it challenged the constitutionality of the federal government’s Indigenous child welfare law, marks the first time a self-government right has been clearly recognized by the courts as a right of all Indigenous peoples in Canada, added aboriginal and constitutional legal experts.

“The Court recognized that Indigenous peoples in Canada have a right to self-government over child and family services recognized and affirmed by section 35 of the Constitution Act, 1982,” said Claire Truesdale, a Vancouver lawyer with JFK Law Corporation who practices Aboriginal, environmental and constitutional law. “This is remarkable.”

Continue reading “Canadian Constitution architecture dramatically altered following Quebec Appeal Court decision, according to experts”

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.”

Continue reading “New labour relations legal landscape on the horizon following Appeal Court decision”

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.

Continue reading “SCC to hear challenge over Quebec’s ban on homegrown cannabis”

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.

Continue reading “New tort in family violence recognized in Ontario”

Pro bono lawyers needed to help Ukrainian refugees

Justice Pro Bono is seeking Quebec lawyers who want to support and facilitate the integration of Ukrainian refugees who will arrive in Quebec. The organization is looking for lawyers with an expertise in labour law, health law, education law, and housing law. For more information, reach out to them at info@justiceprobono.ca

In the same vein, lawyers from the Immigration Law section at the Canadian Bar Association have launched an initiative to provide services, free of charge, to individuals affected by the war in Ukraine. More information can be obtained here.

 

 

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.

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

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.” Continue reading “Quebec man “returned” from his “legal” death”

Right to repair gathering momentum but Quebec stalling

The right to repair is gathering momentum.

So far, at least 25 U.S. states are expected to file repair bills. Across the Atlantic, France introduced a repairability index that compels manufacturers of five categories of electronic devices to rate the repairability of their products. More recently still, the European Commission recently opened a public consultation to gather stakeholders’ feedback on the upcoming proposal for a Directive on Sustainable Consumption of Goods — Promoting Repair and Reuse. Meanwhile in Australia, legislation was passed that requires car manufacturers to give parts, tools, and documentation to independent repair shops. Continue reading “Right to repair gathering momentum but Quebec stalling”