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”

Death shows lack of police training to deal with people in crisis

A 2017 fatal Montreal police shooting of a man underlined a lack of sufficient training to de-escalate situations when faced with people in the midst of a mental health crisis, found Quebec coroner Luc Malouin.

Pierre Coriolan, 58, was tasered, struck with a rubber bullet and shot three times. Malouin castigated police for using rapid-response tactical training, whose aim is to isolate and control the threatening person. But it is not appropriate approach to deal with people whose mental state is “disturbed,” said Malouin in his 33-page report.

“This intervention does not meet what is expected of police officers trained in recent years. And, in my humble opinion, this is the biggest problem of this intervention: police officers who have not had the most recent training in intervention with people in crisis (and) therefore acted with outdated methods that were in no way up to date with current knowledge.”

Those in the line of duty recognize that training is deficient. According to a 2021 report by an expert panel on Quebec policing, nearly 40 per cent of police consider mental health crisis management training to be inadequate. More than 70 per cent of patrol officers working for the Quebec provincial police believe their training is “deficient” to deal with people facing mental health issues. At present, about 480 hours of training in the police college training program are devoted to “interventions of a social nature.”

From the report:

On-duty police officers “lack the tools, resources and training to fulfil their social role, particularly in terms of intervention with people with mental health problems, sexual violence, domestic violence, or to make effective contact with members of ethnocultural communities.

From a police perspective, the gap between training and the challenges encountered on the street is based on the fact that many of the skills and behaviours adapted to the new realities are not easily acquired in schools or through refresher training, but rather are the result of the experience acquired or the basic temperament of the police officer. (my underlining)

In 2019 Quebec police received more than 80,000 calls to deal with people facing mental distress.

Mandatory retirement clauses breach Quebec Charter, rules court

Professional services firms that have mandatory retirement policies and provisions that require partners to divest their ownership shares solely on the basis of age are discriminatory and in breach of the Quebec Charter of human rights and freedoms held Quebec Superior Court in a ruling that has the legal community buzzing over its implications.

In a case that pitted a Montreal municipal and labour and employment law firm against its founder, the decision by Quebec Superior Court Justice Stéphane Lacoste is expected to have wider repercussions than the thorny issue of mandatory retirement, according to legal observers. Following the decision in DHC Avocats inc. c. Dufresne, 2022 QCCS 58, typical arrangements made by professional services firms in succession planning such as “unpartnering” or changing the status of their senior partners while still allowing them to work in the firm may be called into question, added legal experts. Continue reading “Mandatory retirement clauses breach Quebec Charter, rules court”

Salary hike for provincial court judges

A day after the Quebec Minister of Justice suffered a stinging setback following a Superior Court decision that held that the Chief Justice of the Court of Quebec can require bilingualism in the judicial appointment process, even against the wishes of the minister, the Quebec government begrudgingly gave the green light to increase the salary of provincial court judges.

The Quebec executive and the judiciary have not seen eye-to-eye since Justice Minister Simon Jolin-Barette maintained last spring that bilingualism was not a prequisite to be appointed to the Court of Quebec, a position diametrically opposed by Chief Justice Louise Rondeau. Tensions between the two branches of power were further exarcerbated last fall over competing visions on how to deal with domestic and sexual violence cases.

In a 55-page ruling, Quebec Superior Court Justice Christian Immer ruled that the minister had no say on how magistrates set the professional and linguistic requirements of provincial judges.

A day later the Quebec government issued a 27-page report that stated it intends to approve a significant salary hike to provincial judges after a five member blue-ribbon panel of legal and financial experts recommended boosting the renumeration of Court of Quebec judges from the current $255,000 to $310,000 by July 2022, which would make them the third best paid provincially appointed judges, behind Ontario and Saskatchewan.

Notary found guilty of misappropriation

A Quebec notary with drug problems and in financial straits was found guilty of misappropriating more than $50,000 from a client by a disciplinary committee, the eighth case heard by disciplinary councils over the past year dealing with pilfering by legal professionals, something that has been described as the profession’s dirty little secret.

Daniel Girouard, who was admitted to the Chambre des notaires in 1986, was found guilty of breaching articles 1, 13, and 56 (7) of the Code of ethics of notaries — of failing to act with dignity, abiding by the strictest rules of integrity, and misappropriation. Girouard misappropriated $59,250 held in his trust account, and used it to pay his drug debts.

In an email to an investigator, Girouard said:

“I know anyway that I will be struck off. I am addressing you in order to minimise the misery of the parties in this case. As for the consequences for me vis-à-vis the Chamber and the tax authorities, I take responsibility.”

The disciplinary committee will determine his sanction at a later date. But it’s moot. Girouard has resigned.

The victim was reimbursed by the professional corporation’s indemnity fund.

Court deems COVID-19 measures a “misfortune”

COVID-19 is still wreaking havoc on people’s lives.

But it’s heartwarming to see that the courts are taking into account hardship.

In a brief bankruptcy ruling in Syndic de Deutsch, 2022 QCCS 222, Quebec Superior Court held that:

[14] There is no doubt that the measures put in place by the federal and provincial governments are a “misfortune” (“un malheur”) and the Court must consider even sua sponte the application of Article 175 of the Bankruptcy and Insolvency Act for bankruptcies filed after March 2020.

[15] In this particular case, the requirements of Article 175 of the Bankruptcy and Insolvency Act are not met however I consider the economical context.

[16] Neither the Superintendent of Bankruptcy nor any creditors have opposed the discharge of the Bankrupt.

[14] The bankruptcy and Insolvency Act’s objective is the social and economical rehabilitation of an honest but unlucky debtor and I hereby grant Ms. Irit Deutsch an Absolute Discharge from her bankruptcy. (my emphasis).

Religious corporation loses battle over perpetual contracts

In 1945 a religious corporation acquired from the City of Sherbrooke a piece of land, adjoined to a property it already owned, to provide a resting place for weary nuns, or “religieuses fatiguées.”

It paid $200. But the contract includes a clause by which the City obtains the privilege to repurchase the land at the price sold in the event that the religious outfit decides to resell it.

Les Filles de la Charité du Sacré-Coeur-de-Jésus launched an action to have the right of pre-emption be declared null and void or, in the alternative, that a time limit be set for its lapse.

The Quebec Court of Appeal dismissed the appeal. Heeding guidance by the Supreme Court in Uniprix inc. v. Gestion Gosselin et Bérubé inc., 2017 SCC 43, the Appeal Court reaffirmed that the only perpetual contracts that are invalid as contrary to public policy are those where perpetuity “undermines” fundamental values of society.

“It is true that the appellant cannot freely dispose of this land, since it must allow the respondent to buy it if it decides to sell it, but this is not shocking,” said the Appeal Court in Filles de la Charité du Sacré-Coeur-de-Jésus c. Ville de Sherbrooke, 2022 QCCA 112.

“The appellant has, to date, used the land in the manner it intended at the time of purchase and can continue to do so since it is only if it decides to sell it that it will have to allow the respondent to buy it back. It is true that this limits one of the components of her right of ownership, in this case abusus, but this limit does not undermine a fundamental value of society, especially since many other dismemberments of the right of ownership are authorized in Quebec law.”

Insurer loses battle against Quebec tax authorities

Insurers are required to collect tax on insurance premiums, and remit it to the provincial government, within a certain allotted time.

When clients sent a cheque or made an electronic payment to pay their premiums before it was due on the effective date of the policy,  one insurer accepted the sums as soon they were received but did not yet remit to the tax authorities because the policy was not yet in force.

The Quebec Court of Appeal nixed that practice.

The insurer, as per s. 527 of the Act respecting the Québec sales tax (Act), must in its capacity as agent account for the tax collected in the preceding calendar month at the end of the month, held the Appeal Court in Agence du revenu du Québec c. Assurances générales Desjardins inc., 2022 QCCA 57. Whether or not the premium is due does not change the fact that the insurer has collected the amount of tax on insurance premium paid by the insured and must therefore remit it to the Minister, added the Appeal Court.

“There is no doubt that, where the premium is paid on the day the contract comes into force, the tax on insurance premiums collected must be remitted to the Minister in accordance with the terms of section 527 of the Act.

“The issue at stake here is that the customer voluntarily fulfills his obligation, the payment of the amount corresponding to the premium, which includes the tax on insurance premiums, before the arrival of the suspensive term agreed between the parties and that the (insurer) collect this amount although they are technically not yet entitled to it.”

On top of that, under article 2398 Civil Code, this contract is formed as soon as the application is accepted by the insurer, even if it takes effect at a later date, added the Appeal Court. The enforceability of the reciprocal obligations of the parties is then simply suspended until the date fixed, concluded the Appeal Court.