Stung by criticism that it has at times acted too late to stop unsound practices, Quebec’s financial watchdog recently warned consumers to be wary of peer-to-peer insurance offerings even though the digital sharing platform has yet to make a formal entrance in Canadian soil.
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Quebec financial watchdog warns consumers over P2P insurance
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U.S. authorities target individuals for corporation wrongdoings
Internal investigations are likely going to be more costly and more difficult to conduct for Canadian companies with operations in the United States following a change of policy by the U.S. Department of Justice that will now prioritize the prosecution of individual employees for civil and criminal corporate wrongdoing, according to anti-corruption and white collar criminal defence lawyers. -
Quebec legal society calls for shift away from hourly billing
For the “survival of the profession,” the Quebec legal society is calling on its members to shift away from hourly billing to alternative pricing arrangements to better respond to client’s needs, foster greater access to justice for citizens, and encourage a healthier and more balanced professional life for lawyers.But at a time when approximately 70 per cent of Quebec’s private practitioners still charge by the hour, the Barreau du Québec recognizes that its call for a paradigm shift will require a “total cultural change” that will be met with resistance by many lawyers and law firms who have done well by the status quo, said Claudia Prémont, the president of the Quebec Bar, which recently published an 84-page study entitled “Hourly Billing: A Time for Reflection.”
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Supreme Court divided over standard of review for arbitrators
A teacher’s union can call witnesses from an in camera school board meeting to testify about a dismissal ruled the Supreme Court of Canada divided by the kind of judicial standard of review that should apply to an arbitrator’s decision.The ruling opens the door for employees to examine members of a decision-making authority over motives leading to a disciplinary sanction, reaffirms that deference must be shown to arbitrators in order to “preserve the expeditious, effective and specialized dispute settlement method represented by grievance arbitration,” and by the slimmest of margins held that the standard of review applicable to arbitrator’s decisions is not correctness but reasonableness.
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Quebec criminal justice plagued by delays
Quebec’s justice system will require more money and human resources, need to make more use of technological advances to efficiently deal with routine appearances, and prioritize and encourage timely resolution of cases to be able to curb the unprecedented delays in criminal proceedings, according to the Chief Justice of the Court of Quebec Elizabeth Corte. -
New investor state dispute settlement mechanism following Canada – European Union trade agreement
A new proposed permanent investment court-like system under the free trade agreement between Canada and the European Union that will replace the controversial ad hoc investor-state dispute settlement arbitration system has drawn mixed reaction from international trade and investment lawyers. -
Revenue Quebec intends to improve dealings with taxpayers
An action plan unveiled by Revenue Quebec to improve its dealings with taxpayers after the Quebec ombudsman accused the provincial tax department of becoming more intractable and less respectful is viewed with cautious optimism by business and tax professionals.The action plan was ordered by Quebec Finance Minister Carlos Leitão to remedy an “unacceptable situation” following a scathing report by Quebec ombudsman Raymonde Saint-Germain who for the second year in a row found that Revenue Quebec frequently failed to apply the principles of natural justice or fundamental rules of procedural fairness, rigidly interpreted fiscal legislation despite being aware of jurisprudence contrary to its position, and provoked needless court action to resolve tax disputes with taxpayers.
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Quebec Ombudsman slams detention conditions in the North
Nearly three years after the president of the Quebec legal society warned the provincial government that prison conditions faced by Inuit inmates in northern Quebec were appalling and deplorable, the Quebec Ombudsman upbraided the government for turning a blind eye to the daily violation of basic human rights, unacceptable detention conditions, and systemic shortcomings in the administration of justice in Nunavik.
Remote Arctic jails Unsanitary and overcrowded holding cells, nauseating odours, soiled bedding, inaccessible showers, sanitation facilities that fail to provide detainees with privacy, and prisoners having to eat their meals on the floor are among some of the more disturbing findings made by the Quebec Ombudsman Raymonde Saint-Germain who likened Nunavik’s detention and justice system to the Third World. Just as troubling were her findings that detainees are kept in cells 24 hours a day because there are no outdoor courtyards, with some detainees having to wait as long as two weeks in preventative custody. The Criminal Code of Canada prescribes a maximum waiting time of three days.
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Appeal court orders seized material to be sealed in Uber case
Nearly six months after 20 Revenue Quebec officials raided the Montreal offices of Uber Canada Inc. as part of a tax investigation, the popular ride-sharing service won a legal battle against the provincial taxman after the Quebec Court of Appeal overturned a lower court ruling and held that the seized evidence must be sealed.The succinct 12-page ruling will likely pave the way for more applications for impoundment as the courts and tax authorities grapple with the challenges posed by e-commerce, disruptive business models, and technology, according to tax lawyers.
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Quebec court rules that religious marriages do not necessarily carry any legal obligations
A controversial Quebec Superior Court decision that ruled that religious marriages do not necessarily carry any legal obligations under civil law may have alarming and sweeping consequences, according to family law experts.
The “disturbing” ruling creates a new category of civil status in Quebec, undermines long-held views of religious marriages, and will possibly expose women to vulnerable situations where they will be pressured into celebrating a religious marriage without the protection afforded by civil law, cautioned family lawyers.
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Appeal court authorizes class action against Mazda
A class action against an automobile manufacturer that was dismissed by a lower court was partially overturned by the Quebec Court of Appeal after it held that Mazda Canada Inc. failed to disclose “important information” to consumers in a timely manner.
Hailed as a victory for consumers, the appeal court’s decision bucks the nationwide growing trend against economic loss based tort claims, and serves a clear reminder to manufacturers that it is in their best interests to promptly inform consumers over “important facts” regarding their products and to fix products afflicted with latent defects expeditiously, according to consumer law experts.
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Court awards $8M to hockey player paralyzed by dangerous hit
A Quebec Superior Court decision that awarded $8 million to a minor league hockey player who was left paralyzed by a dangerous hit from behind sends a strong message that athletes can be legally held responsible for their actions when their negligent conduct causes injury to another player, according to legal experts.
In a ruling that pointedly reaffirms the notion that sports are not exempt from the rule of law, Justice Daniel Payette held that participants in sporting activities implicitly accept certain reasonable inherent risks while playing. But not every risk is an inherent risk, particularly if it involves conduct that is outside the realm of the sport, added Justice Payette in Zaccardo c. Chartis Insurance Company of Canada 2016 QCCS 398.
“This will be a landmark ruling in civil liability cases involving sports,” said Montreal sports lawyer Marianne Saroli. “Normally the courts have given an extremely restrictive interpretation to civil liability in sports. Violations of the rules of the game are normally interpreted by referees. However there are exceptions such as in cases where the fault is so serious that it deserves a legal sanction. That’s why this ruling is so important.”
Justice Payette handed what is believed to be the highest amount awarded for a sports-related injury in Canada when he ordered Ludovic Gauvreau-Beaupré and Chartis Insurance, who covered players who played in the minor hockey league, to pay damages to Andrew Zaccardo and his family for a bodycheck from behind that left him paraplegic. Following the hit, which took place less than a minute into the game on October 2010, Zaccardo was knocked into the boards and suffered a spinal cord injury that has confined him into a wheelchair and limited the use of his hands. The award includes $6.6 million to cover Zaccardo’s care and assistance, $1M to his mother who had to stop working to care for her son, $350,000 for his father, and $50,000 to his younger brother.Justice Payette ruled that Beaupré was negligent and committed a civil fault. The hit from behind, while not premeditated, was deliberate as Beaupré had enough time and space to stop, change direction, or minimize the impact against Zaccardo, held Justice Payette after viewing video evidence. Beaupré, with his arm raised to just below the neck level, slammed Zaccardo into the boards, his two feet in the air as he hit him with full force. The judge found that although Beaupré did intend to hit Zaccardo from behind he did not intend to injure him. That is why both parties advised the judge at the outset of the trial that nobody contended that this was an intentional fault, explained Montreal lawyer Stuart Kugler, who along Arthur Wechsler, successfully plead the case. Instead the judge found it was an act of negligence.
In his defence, Gauvreau-Beaupré pleaded that Zaccardo had accepted the inherent risks of hockey, including being checked from behind, by taking part in the game. The argument was rejected. “A participant in a sporting activity is entitled to the expectation that other players will take reasonable steps to avoid gestures that are likely to cause prejudice, even within the framework of a dangerous sport,” said Justice Payette.
What’s more, Beaupré knew hitting from behind was strictly prohibited thanks to publicity campaigns launched by Hockey Canada and Hockey Quebec. The two hockey organizations were initially named as co-defendants but they were dropped from the suit after the disclosure process revealed that they had published numerous publications and videos aimed at players, coaches, referees and even parents, stressing the dangers of pushing or cross-checking someone from behind. In fact, the hockey organizations described hits from behind as a “dangerous and cowardly act.” The hockey league that Zaccardo and Gauvreau-Beaupré played in went even further: all players had to wear a stop sign in the back of the jerseys to warn players not to hit from behind. Moreover, Beaupré was suspended for a game for checking from behind two years before the Zaccardo incident.
“Anybody who plays sports, and the judge emphasized this, you are only going to assume the risk that goes with any sport, whatever that may entail,” said Kugler of Kugler Kandestin LLP. “But not every risk is an inherent risk that players accept. Notably players do not accept the risk of getting injured by the negligible conduct of another player. The check from behind was negligent, dangerous, and contrary to the rules and regulations, and the instructional videos and safety bulletins published by Hockey Canada and Hockey Quebec – and therefore it was a civil fault.”
The decision indirectly applauds and encourages efforts by both hockey organizations to stem violent and dangerous conduct while promoting rules and regulations that strive to ensure the safety of players, noted Yann Bernard, a Montreal sports lawyer who was the ombudsman for the Canadian team over the past couple of Olympics. “Sport organizations should be pleased with the ruling as it can only help in their efforts to clean up their sport,” remarked Bernard. “It will likely help with enrolment because it will be viewed positively that the courts are watching them and applying the law in a sports context.” Besides helping to reduce needless injuries, sport organizations that take a proactive stance towards promoting safety have a greater chance of demonstrating that they have undertaken reasonable steps and acted as a reasonable organization when facing a lawsuit, added Bernard.
Though there is some debate over the impact the $8 million award will have on arena operators and minor hockey leagues, Montreal insurance lawyer Jonathan Lacoste-Jobin of Lavery, de Billy believes the impact will negligible, particularly since both hockey organizations were not sued by Zaccardo. The Zaccardo decision does however underscore that the courts will be paying close attention to efforts by sports organizations to make the sport safer, said Jobin. “The decision did not condemn or censure the sports organizations or even the team so I don’t think that this ruling represents an increase in risk for these organizations,” said Jobin.
What seems to be clear though is that the long-lasting perception that what happens on the ice stays on the ice are long gone, says Wechsler. “The decision makes it clear that people have to behave as reasonably prudent people in any setting, including in a sports setting,” Wechsler. “Only certain risks are acceptable and inherent to the sport. But I don’t think we can really anticipate how far reaching this decision could be and how it’s going to be applied in the future in other contexts.”
An application for leave to appeal before the Quebec Court of Appeal has been filed by the defendants.
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Revenue Quebec ordered to pay $2.4 million
Revenue Quebec was ordered to pay $2.4 million, including $1 million in punitive damages, to a Montreal business after the Quebec Court of Appeal found that the provincial fiscal authority abused its powers and acted maliciously and in bad faith.
In a decision that sternly rebukes the provincial tax authority for abusing its “extraordinary powers,” the appeal court ruling held that Revenue Quebec owes a general duty of care and good faith to taxpayers as well as an “obligation to compensate” taxpayers who were the victims of wrongful conduct, according to tax lawyers.
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Quebec plans to order ISPs to block unlicensed gaming sites
A controversial bill tabled by the Quebec government that will compel Internet service providers to block unlicensed gambling websites is an expensive, futile, and unconstitutional endeavour that raises concerns about the neutral role of Internet providers, according to gaming and telecommunication experts.
The proposed legislation, tabled last November, will amend the province’s Consumer Protection Act and require Internet service providers (ISPs) to “block access” to a list of “unauthorized gambling sites” that will be drawn up by Loto-Québec, a government agency that operates and develops lotteries in the province. Internet service providers face steep fines — up to $100,000 and twice that amount for subsequent offences — if they fail to comply.
“It is absolutely urgent that anyone looking at this oppose this,” remarked Bram Abramson, the chief legal and regulatory officer at TekSavvy, an independent Canadian ISP. “Clearly it would establish precedence. It would be the first time that any Canadian government has ordered ISPs to routinely block content and to engineer our networks in such a way as to be able to block content in this routine manner. That’s not the kind of Internet that Canadians want.”
The contentious plan is being closely watched by other provinces who have, with the exception of Saskatchewan, online gaming offerings. Like Quebec, British Columbia, Manitoba and Ontario offer a full slate of online casino-style gambling while the Atlantic Lottery Corp. which oversees gaming for New Brunswick, Newfoundland and Labrador, makes lottery tickets and sports betting available on the Internet. Much is at stake. H2 Gambling Capital, a leading supplier of gambling data and market intelligence, predicts that the value of the global online casino and bingo market will surge to approximately US$13.5 billion by 2018, representing a compound annual growth rate of more than 10 per cent from 2014. The Quebec government predicts that by directing online gambling to its own website, Espacejeux, that it will bring in an additional $13.5 million in revenues in 2016-17, and $27 million annually after that.
“The landscape for gaming in Canada is going to change very shortly,” predicted renown Montreal gaming lawyer Morden Lazarus. “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 Quebec initiative however will likely end up before the courts, according to legal observers. Quebec is moving forward under the guise of improving public health. According to the 2015-16 Quebec budget, “illegal websites do not apply the same responsible gaming rules as Espacejeux,” and that poses a risk to the population, especially young people. Since it will enact the new provisions under the Quebec Consumer Protection Act, the provincial government is also expected to argue that establishing a firewall to prevent online gaming competitors is a matter of consumer protection, which falls under the jurisdiction of provinces.
But industry observers don’t buy that reasoning. The Quebec bill clearly breaches federal jurisdiction over telecommunications, pointed out Chris Tacit, a telecommunications lawyer based in Ottawa. It also appears to infringe s. 36 of the federal Telecommunications Act, which prevents Canadian carriers from controlling the content or influencing the meaning or purpose of telecommunications, added Tacit. “What is an ISP supposed to do it if it is ordered to block unlicensed gambling websites by the Quebec government which under s.36 of the Telecommunications it is prohibited from doing,” asked rhetorically Tacit. “It is an untenable situation. This can only lead to litigation.”
ISPs are “content neutral” utilities that simply provide access to a service, and are not in the business of picking and choosing what Canadian consumers should have access to, added Abramson. If the Quebec initiative goes unchallenged, Abramson fears that other provinces may follow suit and would be emboldened to establish different telecommunication regulatory rules that would likely differ from one province to another. “I have no doubt that if this were allowed to proceed, other provinces will follow,” said Abramson.
Critics also point out that the proposed legislative scheme amounts to censorship, likely infringes the Canadian Charter of Rights and Freedoms, and sets a dangerous precedent. The bill would unlikely be able to survive a freedom of expression challenge, and Quebec would have a hard time arguing that compelling ISPs to block unlicensed gambling websites is a reasonable limitation. “Just imagine it wasn’t about gambling,” observed Timothy Denton, a CRTC commissioner from 2008-2013. “Suppose it was about being unable to reach controversial political websites, people would be up and screaming about it. But because it concerns the vice of gambling, it’s more defendable in public.” Or as Tacit pointed out, if the Quebec government can get away with blocking online gaming websites, “what lays next?”
The lack of clarity in the bill also poses problems, said gaming lawyer Stuart Hoegner. Bill 74 does not define what wagers and bets are. Nor does it spell out whether the definition will be identical to the one found in the Criminal Code of Canada or whether the Quebec government will forge ahead and establish a new definition of wagers and bets. And while the bill plainly states that an ISP may not “give access” to an online gambling site whose operation is not authorized under Quebec law, it does not define what the term access means, added Hoegner. “The term access is pretty broad,” remarked Hoegner. “What if an ISP makes good faith efforts to block but a customer circumvents it? Have they violated that provision or is there a safe harbour? We don’t know.”
Forcing ISPs to establish firewalls on unauthorized online gambling sites would also be very expensive because it would require “wholesale changes” to telecommunication networks, said Abramson. “It’s very difficult to do what is being asked because in many cases telecommunication networks do not treat Quebec as a distinct network. That would require some re-architecture – and that’s expensive,” explained Abramson. It would also be for naught, given the porous nature of the Internet. Growing numbers of Canadians are becoming increasing familiar with virtual private networks (VPNs) to skirt around intellectual property protections governing websites such as Netflix, and gambling aficionados will not hesitate to dodge restrictions the Quebec government may try to impose on them, added Abramson.
A working group that studied the issue of online gambling for the Quebec government already provided the framework that would allow the Quebec government to recoup more monies from online gambling, without having to resort to ISPs, remarked Lazarus. Ironically the 2014 “Report of the Working Group on Online Gambling” does not recommend the “systematic filtering of illegal websites.” Instead it recommends either the creation of a portal through which private operators can offer online gambling to Quebecers or establishing a licensing system, which is favoured by many jurisdictions around the world.
Under the portal model, the Quebec government would be held responsible for the management of online gambling offerings by establishing standards and precise rules in order to comply with s. 207(4)(c) of the Criminal Code, which allows only for provinces to set up and operate a lottery or game of chance on or through a computer. Under the portal model the government would also have to define gaming compliance rules, the rate of returns, the types of games offered, and security measures pertaining to fraud and money laundering. “Going the ISP route will cause more anguish and more issues more than anything else,” said Lazarus. “They should focus on the creating a process where online gaming providers provide managed services to the province, and all of the activity will go through the provincial government’s portal.”
In the meantime, the Quebec government can expect ISPs to fight back if they follow through with their controversial proposal. “This has not made the Quebec government popular among a lot of telecommunication providers,” said Abramson. “It is just a very surprising initiative, especially one that is so clearly outside their jurisdiction, that is so expensive, and likely to be ineffective.”
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Quebec government consolidates employment and labour boards
In a move applauded by business and denounced by labour, the Quebec government has created a new labour, employment and workers’ compensation tribunal and consolidated several employment and labour boards into a single administrative body in a bid to streamline government services and modernize and improve the efficiency of the province’s administrative justice system. (more…)
