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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Judicial appointments stir tempest in a teapot
The latest series of judicial appointments to Quebec Superior Court federal Justice Minister Arif Virani have stirred a tempest in a teapot after some French media outlets castigated Justin Trudeau’s government for appointing Liberal donors and supporters to judgeships in Quebec.
The Journal de Montréal and the Quebec legal publication Droit-Inc noted that four judges appointed in the past year by Ottawa were donors to the Liberal Party of Canada. Between January 2024 and January 2025, federal Justice Virani appointed some twenty judges to the Quebec Superior Court, a fifth of them who had contributed to the federal Liberals or campaigned in favour of their positions.
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Monday’s Medley (Issue 02)
Each Monday I will provide a potpourri of Quebec (and Canadian) legal developments. Issue 02 (27 Jan 2025) notes that half of Canadian corporate counsel expect an increase in the number of lawsuits and regulatory investigations, Canada’s largest printer illegally used facial recognition at one of its plants, a legal challenge that sought to declare null and inoperable a provision of the Health Insurance Act failed, and the so-called Tinder rapist given a historic sentence.
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Quebec appeals ruling that held taxi permit holders were victims of disguised expropriation
A ruling that ordered Quebec to pay more than $143 million, plus interest, to compensate thousands of former taxi permit holders has been appealed both by the provincial government and class members.
Quebec Superior Court ruled last summer that the provincial government illegally expropriated the permits of taxi drivers without fair compensation after the Uber online ride-hailing service forcibly made its entry into the market a decade ago, a decision that Quebec is asking the Court of Appeal to set aside.
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Top legal cases in 2024
This is the time of year when law firms and legal publications provide a retrospective look at some of the most significant judicial rulings in 2024. Here’s some of them.
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The nation’s highest court issued a series of important decisions that stemmed from Quebec, two of which dealt with aboriginal law.- Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (Aboriginal law, Constitutional Law: Division of Powers)In a decision that marks a major step in the evolution of Canadian law’s treatment of Indigenous laws and legal orders, according to legal pundits, the Supreme Court of Canada upheld the constitutionality of a federal statute that affirms Indigenous peoples’ right of self-government with respect to child and family services.”On an immediate level, it is a hugely important decision for Indigenous communities across the country working to implement their own child and family welfare services and for the Indigenous children and families who interact with child and family services. More broadly, it also has important implications for how Parliament can promote “legislative reconciliation” through the passage of laws that affirm Aboriginal and Treaty rights and that incorporate Indigenous laws and legal orders.” JFK Law LLP
- Here’s how the Quebec Appeal Court examined the issue: Quebec appeals landmark ruling that affirms self-governance for Indigenous peoples
♦♦♦- Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39 (Aboriginal law: Good Faith and Honour of the Crown)The Supreme Court confirmed in a precedent-setting decision that contracts between the Crown and Indigenous communities can engage the honour of the Crown.”This case provides new, largely helpful, insight into how the Crown must conduct itself in contractual relationships with Indigenous peoples. This case provides clarity on when and how obligations of the honour of the Crown apply to Crown contracts with Indigenous parties.” Olthuis Kleer Townshend LLP
- The Quebec Appeal Court’s take on the issues: Quebec Appeal Court sets precedent over First Nations police underfunding
♦♦♦- Eurobank Ergasias S.A. v. Bombardier inc., 2024 SCC 11 (Business law)This Supreme Court ruling confirms that a Canadian bank must refuse payment to the beneficiary of a letter of credit due to fraud.”The decision also touches on important principles of private international law, such as comity and the principles applicable to the recognition and enforcement of foreign judgments by Québec courts. In that vein, the SCC’s decision strongly signals that a foreign judgment’s disregard to a binding international arbitration order or award may violate public order as understood in international relations and thus lead to its unenforceability in Canada.” Borden Ladner Gervais LLP
“The Supreme Court’s decision is a significant decision on the law of bank guarantees in Canada, which are often provided for in international contracts with arbitration clauses, especially in the field of construction. The decision expands on the principles applying to the sole exception to the obligation of banks to pay a beneficiary of a letter of credit on demand: fraud.” Arbitration Matters
♦♦♦- Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 (Labour law: Freedom of Association)In a favourable decision for employers, the Supreme Court held that exclusion of first-line managers from a statutory collective bargaining regime was constitutional.”Ultimately, as the Supreme Court rightly points out, the legislative exclusion of managers from the labour relations regime set out in the Labour Code makes it possible to avoid role conflicts between employer and employees in the context of their professional responsibilities (for example, in the context of collective bargaining of employees’ working conditions). This exclusion ensures managers adequately represent the employer’s interests, and thus preserves the employer’s confidence in its representatives.” Norton Rose Fulbright LLP
“The Supreme Court of Canada dealt with a number of important issues that are significant for the law of judicial review of administrative action and for regulation more broadly.” Paul Daly, law professor at the University of Ottawa
- Here’s a look at how the Quebec Court of Appeal dealt with the case: New labour relations legal landscape on the horizon following Appeal Court decision
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- Alliance de la fonction publique du Canada (AFPC) c. Association des femmes autochtones du Canada, 2024 QCTAT 2520 (Labour law)In another significant decision dealing with labour law, the Quebec Administrative Labour Tribunal ruled that a union bargaining unit could include both employees working in Quebec on an in-person basis and employees working remotely from other Canadian provinces.”The proliferation of teleworking is having a real impact on employers’ rights and obligations, which is still difficult to measure.” Norton Rose Fulbright.
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- McLaren Automotive Incorporated v 9727272 Canada Inc. (Arbitration)Internal arbitration appeal mechanisms do no breach public policy, do not derogate from the jurisdiction of the courts, and do not violate the principle of proportionality, points out Gowling WLF following a decision that used international trends as part of its reasoning.”The fundamental underpinning of arbitration is freedom of contract—the right of parties to choose how to resolve their disputes. The decision in McLaren Automotive is very much rooted in that principle, and it is difficult to disagree with the approach taken by the Court.” Gowling WLG
SUGGESTED READINGS:
- Supreme Court of Canada 2024 Year-in-Review
- Supreme cases: a look back and look ahead
- 2024 Review of Real Estate Law Highlights in Quebec
- A new year in Canadian workplace law
- The Year in Review – Notable Cases of 2024
- 2024 year in review: Dentons Canada’s top client insights
Tags: rulings - Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (Aboriginal law, Constitutional Law: Division of Powers)In a decision that marks a major step in the evolution of Canadian law’s treatment of Indigenous laws and legal orders, according to legal pundits, the Supreme Court of Canada upheld the constitutionality of a federal statute that affirms Indigenous peoples’ right of self-government with respect to child and family services.”On an immediate level, it is a hugely important decision for Indigenous communities across the country working to implement their own child and family welfare services and for the Indigenous children and families who interact with child and family services. More broadly, it also has important implications for how Parliament can promote “legislative reconciliation” through the passage of laws that affirm Aboriginal and Treaty rights and that incorporate Indigenous laws and legal orders.” JFK Law LLP
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Monday’s Medley (Issue 01)
Each Monday I will provide a potpourri of Quebec legal developments. Here’s the first issue. It begins with the Supreme Court refusing to hear an appeal from the Mohawk Mothers, Hydro-Québec ordered to pay $5 million to a First Nation, a $2 million for contaminating water, a class action settlement dealing with psychiatric patients, and a class action that was certified against a Montreal billionaire.
Categories: Aboriginal law, Class actions, Monday’s Medley, News, Quebec, Rulings, Supreme Court of Canada -
At loggerheads over the fate of caribou: A look at the Species at Risk Act
Ottawa and Quebec are not seeing eye-to-eye, again. With the fate of woodland caribous at stake, the federal government is flexing its muscles, and Quebec is far from happy.
Woodland caribou, the iconic bellwether species that graces the reverse side of the Canadian 25-cent coin, are in peril.
The North American subspecies of reindeer is also at the center of a heated tussle between Ottawa and Quebec, the third dispute in the past three years over a species at risk between the two orders of government, underscoring the tension that exists between federal and provincial jurisdiction in environmental protection. “It’s a shame to see this kind of tension between the provincial and federal governments, because everyone agrees that it’s first and foremost up to the provincial government to put in place sufficient measures to ensure adequate protection of biodiversity,” says Marc Bishai, a lawyer with the Quebec Environmental Law Centre in Montreal.
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Quebec strengthens Consumer Protection Act
Quebec consumers will benefit from greater protections following the enactment of two related regulations that introduced a new regime of administrative monetary penalties and increased fines for non-compliance of the Consumer Protection Act.
Under the new regime, Quebec’s consumer watchdog can now impose administrative monetary penalties for “objectively observable failures” to comply with the Act or the new Regulation respecting the Application of the Consumer Protection Act.
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Quebec law limits employers to request medical notes
About one-third of working Canadians were asked by their employers to produce a sick note for a short-term absence at least once in the last year.
That will largely be a thing of the past.
Quebec, in an effort to curb doctors’ workloads by streamlining paperwork and unnecessary clinical visits, has joined the ranks of a growing number of provinces who are doing away with sick notes under some circumstances.
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Holding states to account
Bernard Duhaime used to chase ghosts, and help find thousands who fell victim to state-sponsored disappearances. Now the human rights law professor at the Université du Québec à Montréal will be monitoring hotspots around the world where there have been gross violations of humans rights and international humanitarian law following the end of conflict or the demise of authoritarian rule.
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Quebec discreetly issues directive that favours non-judicial treatment of simple drug possession
Quebec criminal lawyers have welcomed a discreet directive issued without fanfare by the provincial Minister of Justice calling on Quebec’s Crown prosecutors to weigh public interest and the risk to public safety before prosecuting people suspected of simple drug possession for personal consumption.
The circumspect directive, followed up a day later by new guidelines issued by the Quebec Director of Criminal and Penal Prosecutions (DCPC), is widely expected to help alleviate the logjams currently plaguing the provincial court system, according to criminal lawyers.
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Method used to conduct pay equity audit is invalid, rules Labour Tribunal
A method used to estimate wage differentials during pay equity evaluations cannot be validly used as it contravenes the Quebec Pay Equity Act, ruled the Administrative Labour Tribunal in a decision widely expected by labour lawyers to have a significant impact on estimating and assessing public sector pay equity.
The decision, one of a handful dealing with pay equity audits in Quebec, underlines that employers cannot depart from the objectives behind the Pay Equity Act when estimating wage gaps, and provides practical guidance to employers and labour alike over the pay equity maintenance exercise, according to labour lawyers.