A string of recent decisions by the Quebec administrative labour tribunal should give pause to employers – and employees too for that matter.
Sexual assault convictions do not, in itself, justify the dismissal of an employee because of constitutional protections against discrimination based on criminal records, held two recent but separate decisions by the Quebec administrative labour tribunal.
The Toronto-Dominion Bank was ordered to pay nearly $50,000 in damages to a Montreal businessman of Iranian descent for failing to act reasonably when it cancelled his personal and money-services business accounts without explanation.
The scathing 15-page ruling by Quebec Superior Court Justice Gregory Moore illustrates yet again the reach of good faith under the Civil Code of Quebec, sheds light on TD Bank’s questionable litigation practices and tactics, and raises questions over the bank’s debatable understanding of its obligations as a financial institution dealing with economic sanctions.
The differences are starkest at the top echelons of leadership.
But there are encouraging signs that gender pay disparities may be shrinking, according to a recent survey by the Association of Corporate Counsel, a global legal association representing more than 43,000 members in 85 countries.
At the chief legal officer and general counsel level, median total compensation for women is US$210,000, or 78 per cent of the median total compensation earned by men, US$270,000. The pay gap peaks for lawyers who have 11 to 20 years of in-house tenure, with female in-house lawyers earning 69 per cent of their male counterparts’ compensation.
“Yet we are optimistic that the gap appears to shrink for newer generations of corporate counsel leaders and hope the data in the survey will yield more transparency,” noted said Veta Richardson, ACC’s president & chief executive officer.
That’s because the disparity in median compensation among general counsels who received a law degree after 2010 is less than half of the gap among general counsels who graduated law school prior to 2000.
On top of that, other positions in the corporate law department featured smaller gaps in compensation. , Female directors of compliance were almost on par with their male counterparts, with 95 per cent gender compensation parity while heads of legal operations were on an equal footing, the only job category without pay disparity. The median total compensation for head of legal operations is US$189,063 while the median total compensation for manager of legal operations is US$120,000. The top five per cent of heads of legal operations earn at least US$464,000 while legal operations managers make a minimum of US$275,000. More female than male respondents serve as heads of legal operations, and half of all survey respondents said their companies have a distinct legal operations function, according to the survey.
The highest-earning general counsel work in biotechnology and life sciences as well as technical R&D. While the top five per cent earn at least US$3.3 million, the median compensation for biotech general counsel is US$346,000 and US$265,000 for general counsels in technical R&D.
In-house counsel, not surprisingly, earn more in public companies than privately owned firms. The median base salary for all in-house legal positions is nearly US$25,000 higher in public companies compared to private ones. The median total compensation for general counsels in public companies stands at US$399,000 compared to US$225,000 in private companies.
In-house counsel specializing in capital markets, securities and finance are top earning practice areas for both men and women, with a median total compensation at US$280,000. That represents 37 per cent more than the median of all respondents.
Last year overall compensation increased for 75 per cent of all respondents, a trend expected to continue this year. Among those who received a raise, 25 per cent reported an increase of less than three per cent, 24 per cent said compensation increased between three and five per cent, and 24 per cent stated they received an increase of more than five per cent.
More than three-quarters of in-house counsel expect a pay hike this year. General counsel have the “greatest expectation” for salary growth across all job categories, with 26 per cent expecting an increase of at least five per cent, according to the survey.
“This is likely because more senior positions often receive stock options and restricted shares, which on average have a potential growth value that is higher than one’s base salary,” noted the survey.
Elsewhere in the world, the largest gender pay gaps are in Latin America and the Middle East and Africa, where women in-house lawyers made between 38 and 45 per cent of what their male colleagues earned, respectively. The United States, Canada, and Australia, had the smallest gaps (85, 83, and 81 per cent, respectively).
A troubled young Quebec City man who incited hate against Arabs by writing unapologetically “cruel and racist” rantings on social media hours after six people were shot dead and five wounded at a mosque in Quebec City in 2017 was sentenced to 60 days in prison.
The 20-year old arborist, who pled guilty, blamed his drug-induced intoxicated state for his online racist comments. He testified that he consumed cocaine, ketamine and MDMA at a rave. He also admitted during trial that he was “a bit racist” but was willing to make a public apology and make a donation in exchange for an absolute discharge.
Court of Quebec Judge Mario Tremblay would have none of it. The comments were heinous, issued at a time when victims, the Arab community and society were coping with grief, and were made repeatedly, held Judge Tremblay.
“Considering the context in which the comments were made and its contents, the sentence must be sufficiently severe to have a denunciation effect,” said Judge Tremblay in R. c. Huot 2018 QCCQ 4650. “The accused has no excuse. He made these comments repeatedly” during three days.
But Judge Tremblay made it plain that the accused was not sentenced because he still holds racist thoughts. Rather his deeply held personal views “wipe out the possibility” that his excuses are sincere and he failed to demonstrate a genuine awareness and recognition of the harm done to Arab community and society at large, added Judge Tremblay.
Echoing remarks made more than a decade ago in R. c. Presseault, 2007 QCCQ 384 by then Court of Quebec Judge Martin Vauclair, now a Quebec Court of Appeal Justice, Judge Tremblay lamented that he could not impose a stiffer sentence because of “choices made by the legislator.” The maximum sentence for inciting hate is two years imprisonment.
“The consequences associated with such remarks are latent, pernicious and could have an explosive impact on a fragile person susceptible of committing an illegal act,” concluded Judge Tremblay.
The arborist, the third person to be charged for inciting hate crimes following the Quebec City mosque shooting, will serve his sentence intermittently, on weekends.
The Quebec government took a gamble, and lost.
Under the guise of concern for the health and safety of Quebecers, the provincial government introduced controversial legislation that compelled Internet service providers to block unlicensed gambling websites.
It was a ruse, a move to protect their turf and increase revenues.
So concluded Quebec Superior Court Justice Pierre Nollet who held that Quebec’s effort was unconstitutional because it infringes upon federal jurisdiction on telecommunications and criminal law matters.
The contentious legislation was closely watched by other provinces who have online gaming offerings. Much is at stake. H2 Gambling Capital, a leading supplier of gambling data and market intelligence, predicted that the value of the global online casino and bingo market would surge to approximately US$13.5 billion by 2018, representing a compound annual growth rate of more than 10 per cent from 2014.
Or as renown Montreal gaming lawyer Morden Lazarus told me: “The provinces have decided that they want to get into online gaming and they want to be able to generate these revenues for their own benefit. The Quebec government is leading the charge.”
The decision may have wider implications, according to Michael Geist, a law professor at the University of Ottawa and Canada Research Chair in Internet and E-commerce Law. A coalition of companies including broadcasters like the CBC, telecoms (including Bell Canada) and creative groups have asked the federal regulator Canadian Radio-television and Telecommunications Commission (CRTC) to create an agency that blocks websites with illegal content.
But Judge Nollet noted that the 1993 Telecommunications Act enshrines the concept of net neutrality, and requires the CRTC to block sites only under strict circumstances.
“In the Court’s opinion, section 36 (of the Act) does not permit telecommunications companies to modify signals, whether legal or not, except in certain cases provided for in the regulatory policy such as the power to modify the signal to eliminate network threats,” said Judge Nollet in Association canadienne des télécommunications sans fil c. Procureure générale du Québec, 2018 QCCS 3159.
The link to network threats is important, said Geist in a blog posting, because “supporters of the Bell site blocking plan (who argue that it does not implicate the net neutrality rules) cite a 2009 CRTC net neutrality decision reference to illicit materials, which they claim could include copyright infringing materials.
“I argue that the reference ‘clearly refers to network threats, not the content of the materials.’ The court in this case agrees with the need for a link to network threats. The illegality of content – whether copyright infringement or online gambling – does not go directly to the security and integrity of the network.”
A Quebec judge who refused to hear a quarrel between neighbours and emphatically insisted that they negotiate a settlement before adjourning without cause a hearing over which he should have presided the same day has been sanctioned by the Quebec Court of Appeal.
The 66-page ruling in Bradley (Re), 2018 QCCA 1145 reveals the need for the Quebec government to increase options available to the appellate court and the Quebec Judicial Council to deal with judicial misconduct of a provincially appointed judge, and for the council itself to enact changes to enhance procedural fairness, according to judicial ethics experts.
The series of revelations over the past year that sparked a seismic shift in public awareness of sexual misconduct by powerful men has also cast a harsh spotlight on workplace sexual harassment. Emboldened by the groundbreaking #MeToo and #TimesUp movements, growing numbers of women are speaking out — and that’s making organizations skittish, more so because they are under growing pressure to take a zero-tolerance approach to unacceptable comportment in the workplace.
Yet workplace sexual harassment is hardly a new issue. It has been on the legal radar since at least 1989 when the Supreme Court of Canada held in the landmark case of Janzen v. Platy Enterprises that sexual harassment is a form of sex discrimination and violates human rights legislation. Fifteen years later, Quebec became the first jurisdiction in North America to ban non-discriminatory workplace harassment, a move followed by Ontario in 2009, and in the ensuing years other provinces followed suit.
A property owner who challenged a municipal zoning bylaw he considered to be a disguised expropriation waited too long before taking legal action but can nevertheless still ask to be compensated for the loss in property value, ruled the Supreme Court of Canada.
Nine months ago Amnesty International and Doctors of the World launched a joint petition to request health coverage for children born in Quebec whose parents are beset by a precarious immigration status.
The petition obviously went unheeded.
The Quebec ombudsman too is now calling on the provincial healthcare administrator to cease its “restrictive” and “faulty” interpretation of the Quebec Health Insurance Act and regulations to deny children of parents with a precarious migratory status healthcare coverage even though they are born in Quebec.
“The Quebec Ombudsman considers that the solution lies in applying the Act as written,” said an 18-page report by the Protecteur du Citoyen.
More than four years after the federal government introduced an offshore tax evasion tip line to fight offshore tax evasion and aggressive tax avoidance, Quebec’s tax authority is following suit by launching a whistleblower program that will offer monetary rewards.
The noose is tightening around Dominic Lacroix, a Quebec City businessman believed by Quebec’s financial watchdog and the U.S. Securities and Exchange Commission to be behind PlexCorps, a controversial cryptocurrency start-up accused of fraudulently selling millions of dollars’ worth of digital assets.
The Quebec Court of Appeal admonished a trial judge who acquitted a father accused of incest for holding biases and stereotypes over the way a sexual assault victim should behave.
The appellate court, in a brief but unusually blunt and forceful six-page ruling, ordered a new trial against a father who allegedly assaulted his daughter for a 16-year period, from the age of nine until 25. She came forward in 2010 when she was an adult and while living with her parents.
An orthopaedic surgeon was ordered by a Quebec court to pay a Quebec City man $100,000 in non-pecuniary damages after he was found to be at fault for one of three back surgeries he performed on the patient.
Dr. Jean-François Roy, one of a handful of Canadian orthopaedic surgeon capable of performing disk prosthesis’, a procedure that is less popular than spinal (vertebrae) fusions, was sued by Daniel Tremblay, a fifty-something entrepreneur, and his wife sued for $2.2 million for three back surgeries he carried out. Tremblay, afflicted with back pain since 2003, alleges that he suffered harm because of the surgeries.
But in a 35-page ruling that highlights the challenges patients face when launching a medical malpractice suit, Quebec Superior Court Justice Daniel Dumais held that Dr. Jean-François Roy was at fault for only the second surgery he conducted on Tremblay.
Dr. Roy diagnosed Tremblay with spinal stenosis, a narrowing of the spaces within the spine, which can put pressure on the nerves that travel through the spine, and performed a disk prosthesis’ operation on Tremblay on September 2011. Tremblay was told that in approximately 90 per cent of the cases, 50 per cent of patients got better. Some eight per cent though suffered “significant pain.”
Tremblay was one of the unfortunate ones; his disk prosthesis dislocated, the first time that Dr. Roy says he saw this take place. A second surgery was performed a month later: replacing the prosthesis was impossible so Dr. Roy removed the prosthesis and put in its place a stand-alone intervertebral fusion cage. Made from various materials, including metal or carbon graphite fiber, the cage is placed in the inter-body space and packed with bone graft to help stimulate bone growth. But that surgery too failed to provide Tremblay with relief from pain. A third surgery followed suit, with similar results.
A medical malpractice suit generally raises three issues, points out Justice Dumais. First, it must be determined if the medical professional or establishment committed a fault. Second, it must be proven that the medical procedure, professional and/or establishment caused harm. And finally, if fault is proven, the determination of compensation must be evaluated.
“The hoped result was not obtained,” said Justice Dumais in Tremblay c. Roy 2018 QCCS 2486. “The Court agrees. But it is insufficient to conclude that a (medical) intervention was not appropriate. More than one option existed. The one chosen did not work out. That is regrettable.”
But Justice Dumais held that Dr. Roy should have been more diligent when he performed the second surgery on a patient. The disk prosthesis, which was implemented in the first surgery, dislocated for reasons unknown. That revealed a problem. And Dr. Roy should have done more to figure out what was the cause of the dislocation, added Justice Dumais. He could have consulted with another colleague, sought advice, conduct further tests, or reach out to the manufacturers who produce the medical devices. “None of this was done,” found Justice Dumais. “The Court finds that there was a fault in the preparation and execution of the second surgery.”
The award granted to Tremblay falls in line with jurisprudence. A 2013 book entitled After the Error: Speaking Out About Patient Safety to Save Lives reveals the daunting odds patients face to win a medical malpractice suit in Canada. Slightly more than 4,500 lawsuits were filed against Canadian doctors from 2005 to 2010, reveals the book. Of those, nearly 3,100 were dismissed or abandoned “because the court dismissed the claim or the victim or the victim’s family quit, ran out of money or died before trial.” Out of 521 cases that went to trial, only 116 led to a judgment that favoured the patient, with the median damage awarded $117,000.
More recently still, retired Justice Stephen Goudge concluded that medical malpractice cases take too long and cost taxpayers too much, with total case costs surging by up to 700 per cent, unadjusted for inflation, between 1990 and 2015.
“As medical liability costs rise, the cost of medical liability protection necessarily rises,” wrote Goudge in a 65-page report Report to Ontario Ministry of Health and Long Term Care Re: Medical Liability Review.
“This, and concerns about the length of time required for individuals to obtain compensation for injuries due to medical mistakes, suggest that changes to the medical liability aspect of the civil justice system may be needed to ensure the long-term viability of the way medical liability protection is presently provided in Ontario.”
Some major U.S. law firms require their summer associates to sign “forced” arbitration agreements and related nondisclosure agreements related to workplace misconduct, including sexual harassment, according to a survey by top American law schools.
More tellingly, nearly half of the 400 U.S. law firms and legal organizations who received the survey chose not to respond to the survey.
“Almost half of the firms who received the survey – nearly 200 – have decided to hide behind a wall of secrecy,” said Molly Coleman, a second-year law at Harvard Law School and one of the organizers of the survey. “Especially in the #MeToo era, we are disheartened that they are unwilling to take a simple step to engage on this important issue.”
The survey, issued by 50 American law schools, was launched in response to student concerns about discrimination, including sexual harassment, in summer and post-graduate jobs.
The issue came to the fore this spring after Harvard Law School lecturer Ian Samuel tweeted that a major law required summer associates to agree to sign a “a very unusual agreement,” which he described as “plainly calculated” to shield the law firm from harassment claims.
In the wake of the controversy, the top tier law firm backed down, announcing that it will not require mandatory arbitration provisions and related nondisclosure agreements for its summer associates. Other law firms also reversed course.
American law students are now petitioning their schools to require all employers recruiting on campus to drop forced arbitration agreements.
“The legal practice is very, very quiet when it comes to things that are happening in legal workplaces,” told me a labour lawyer who deals extensively with workplace harassment. “As lawyers, especially when you are just starting and when you may be particularly vulnerable to harassment, there is such a power imbalance in law firms. You depend so much on your reputation and other people’s word of mouth on your reputation that there are very significant barriers to people speaking out about sexual harassment.”
The labour lawyer expects that law firms too will face their #MeToo day of reckoning but that it will “probably be not in such a public way.”
The results of the survey, which include the names of U.S. law firms and legal organizations, can be downloaded here:
Employer 2018 Survey Regarding Arbitration Agreements – Law firms & Legal Organizations