A call by Canada’s privacy watchdog to the life and health insurance industry to voluntarily refrain from requesting clients for access to existing genetic test results is going to be ignored, setting the stage for a divisive debate over access and the use of such personal information.
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Confidentiality breach proves expensive for federal government
The federal government and two employees who worked for an Employee Assistance Program were ordered to pay nearly $175,000 for breaching the rights of an employee who sought their assistance in a case that underlines the importance for employers and personnel to safeguard confidential information.
“Employers must draw lessons from this ruling on how to deal with confidential and private information of employees,” said Sébastien Lorquet, a labour and employment lawyer with Fasken Martineau DuMoulin LLP. “They must understand that if confidential and private information is disclosed and that it causes harm to an employee, then employers and employees at fault can be held liable for damages incurred by the employee who suffered harm.”
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Five insurance companies to pay $4.1 million to a bailiff’s firm
The Quebec Court of Appeal ordered five insurance companies to pay approximately $4.1 million to a bailiff’s firm after it refused to cover its losses and legal fees in a case that clarifies when professional indemnity claims can be triggered and reiterates yet again the principle that lawyers should not have two masters.
In a dense and complex 30-page ruling dealing with an insurance claim arising out a “very complicated and very unusual underlying facts,” the Quebec Court of Appeal maintained its trend of broadly interpreting claims and professional liability insurance policies in favour of claimants, according to insurance lawyer experts.
“In the most general way, this ruling is part of a trend that gives rights to the insured,” observed Valérie Lemaire, an insurance lawyer with Langlois Kronström Desjardins LLP in Montreal. “Is it to the detriment of insurers? I don’t think so. Insurers are being asked to analyze its policies in the most liberal fashion possible. It invites insures to be very transparent with its insured.”
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BMO ordered to pay nearly $27 million to a Quebec company
The Bank of Montreal has been ordered by the Quebec Court of Appeal to pay a Quebec enterprise a staggering $26.8 million, including interest and costs, for acting in bad faith, the second time in less than a year that Canada’s fourth largest bank was on the losing end of a multi-million dollar lawsuit in Quebec.
The ruling, the latest in a recent series of judgments that clearly signals that the Quebec Court of Appeal has jettisoned restraint when awarding damages against organizations that act in bad faith, has sharply divided Quebec’s legal community, with some calling it a wake-up call for financial institutions while others grumble that the ruling makes for bad law.
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Quebec’s anti-corruption law proves to be a niche market for accounting firms
Quebec’s anti-corruption law, adopted more than a year ago in the wake of allegations of bribes, collusion, influence peddling, and widespread corruption in the construction industry, is proving to be good business for accounting firms.
Adopted more than a year following the launch of the Charbonneau Commission, a public inquiry mandated to examine potential corruption in the awarding and management of public construction contracts, the Integrity in Public Contracts Act (Act) compels companies to obtain a seal of integrity if they wish to bid on the billion dollars in contracts awarded annually in the Quebec public sector.
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Prescriptive regime lays out framework for oil and gas exploration
Several weeks after Quebec’s new Liberal government pledged a measured and responsible development of the hydrocarbon industry, the Minister of Energy and Natural Resources discreetly issued a Ministerial Order that establishes a prescriptive regime for oil and gas exploration on the province’s biggest island, sending a clear signal to the business world that the province is open for business in the energy sector.
Adopted in late June under the Quebec Mining Act, the prescriptive regime spells out the rules and conditions for oil and gas exploration work on the remote and sparsely populated Anticosti Island, which is owned almost entirely by the Quebec government except for a small village of 240 people. Core analysis taken from the Macasty shale formation on Anticosti Island revealed that it potentially holds between 30 billion and 50 billion barrels of oil, making it the largest oil resource in Quebec. The oil reserves, however, can be untapped only through hydraulic fracturing, which blasts chemically laced water to break rock containing oil or gas.
The prescriptive regime, which came as a surprise to industry legal experts, will likely prove to be the precursor of a wider framework that will apply to any oil and gas exploration activities that may be carried out in the future elsewhere in Quebec, according to Jean Piette, a senior partner and chair of the environmental law group at Norton Rose Fulbright Canada LLP.
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Employers have duties towards employees working abroad
An electrician who launched a $190,000 suit against the scandal-plagued engineering firm SNC-Lavalin for failing to “rapidly and efficiently” evacuate him from Libya while the African nation was in the midst of a civil war lost his court battle after Quebec Superior Court held that the “troubles and inconvenience” he suffered were due to the “insurrection” in the country.
In a ruling that sheds light on the responsibilities employers have towards employees who work abroad, Justice Louis Lacoursière held that while article 51 of the Quebec Act Respecting Occupational Health and Safety (Act) does not apply beyond the borders of Quebec, employers are nevertheless bound under article 2087 of the Civil Code of Québec to take “any measures” to protect the health, safety, and dignity of employees even if they work out of the country.
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Appeal court endorses primacy of treaty rights
In yet another forceful reminder that the Crown must hold consultations that are meaningful, conducted in good faith and held with an open mind, the Quebec Court of Appeal strongly endorsed the primacy of treaty rights of aboriginal peoples under the James Bay and Northern Québec Agreement in a decision widely expected to have ramifications across the country.
In landmark ruling that clearly signals that the courts are willing to enforce treaty rights, especially those that emanate from modern land claims treaties, the Quebec Court of Appeal held that the provincial government violated the treaty rights of the Cree, Inuit and Naskapi First Nations of northern Quebec when it unilaterally set caribou sport hunting levels and dates for the 2011-2012 season in the territories covered by the Treaty.
“This is an important judgment for aboriginal peoples who have signed a modern treaty, and for those who will eventually sign a modern treaty,” noted in an e-mail Jean-Sebastien-Clement, a Montreal lawyer with Gowling Lafleur Henderson LLP specializing in aboriginal law. “It confirms that a Court, when faced with a treaty violation, must declare the violation and issue a remedy appropriate to the circumstances, no matter what the circumstances are.”
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University research group ushering justice system into digital age
An online dispute resolution pilot project to resolve small claims court cases is scheduled to be launched this fall by the Quebec government thanks to efforts by a university research group that wants to usher the justice system into the digital age.The alternative dispute resolution open source and interoperable software program is the latest innovative offering developed by the University of Montreal’s Cyberjustice Laboratory, a unique and world-class research organization that strives to put information technology at the service of the judicial system in order to make it more accessible, more efficient and more affordable.
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Ruling extends spousal immunity to common-law spouses
The common law rule against spousal compellability must be extended to common-law spouses because otherwise it would result in “blatant discrimination” that cannot be countenanced in the age of the Charter, held the Alberta Court of Appeal in a ruling that will most likely have persuasive authority in spite of a bill introduced in Parliament that will abolish spousal immunity, according to legal experts.
In a unanimous ruling described by legal observers as very well-written and well-reasoned, the Alberta Court of Appeal upheld a lower court decision that concluded that the existing common law rule was discriminatory and inconsistent with modern values of the Canadian Charter of Rights and Freedoms.
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Dementia creeping into the legal profession
Dementia is beginning to creep into the legal profession in the same insidious manner it does in the lives of people, sneaking in and leaving hints before constraining regulators and law firms alike to make heart-wrenching decisions. The Barreau du Québec’s disciplinary committee had to deal with the issue last year when it had to decide the professional fate of a Montreal lawyer with more than fifty years of experience. The lawyer, diagnosed with Alzheimer’s three years ago, faced three counts of breaching the Code of ethics of advocates and the Professional Code. “Perhaps Alzheimer’s disease explains (his) conduct,” wrote the three-chair disciplinary council. “It seems clear that the Council must take that into account when sanctioning him.” Though found guilty, all charges were stayed. The Law Society of Upper Canada’s hearing panel was put in a similar bind early this year when it allowed a Toronto lawyer afflicted with the mind-robbing disease to surrender his licence to practice law.
These heartrending scenarios will likely play out more frequently in coming years. Almost 15 per cent of Canadians over the age of 65 are living with cognitive impairment, including dementia, according to a 2012 study by the Alzheimer Society of Canada. The risk for dementia, a catch-all phrase that refers to a variety of brain disorders, doubles every five years after the age of 65. With the profession greying and more and more senior lawyers putting off retirement, it is becoming clear that the legal profession is going to have to come to grips with the sensitive issue of age-related cognitive impairment. “It is high time given the ageing of the population that we all begin to look at this very carefully,” says Tim Daley, past president of the Nova Scotia Barristers’ Society.
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Cities have a say over placement of cell towers, rules Quebec appeal court
In a closely watched ruling by Quebec municipalities that pitted a Montreal suburb against a Canadian telecommunications giant in a constitutional debate over whether a city can prevent a federal enterprise from building a communications tower, the Quebec Court of Appeal held that municipalities cannot prevent the installation of new cell towers but can have a say over its location within its city limits.
In a unanimous ruling that highlights the “significant challenges that can sometimes occur with the installation of communications towers in urban settings,” the Quebec Court of Appeal held that the Montreal bedroom community was not overstepping its bounds nor was it meddling in federal matters when it proposed an alternate site in an industrial sector for the future cell phone tower.
“The ruling is important for municipalities because it holds that they can play an active role to help telecommunication companies install communication towers in their territory while respecting the fundamental objective of a municipality to ensure the harmonious development and the well-being of its citizens,” observed Patrice Gladu, a Montreal lawyer with Dunton Rainville who successfully plead the case.
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Amount of legal fees no longer necessarily protected by solicitor-client privilege
The amount of legal fees paid to lawyers is no longer automatically deemed to be protected by solicitor-client privilege following a recent ruling by the Court of Quebec that appears to be in conflict with guidance given earlier this year by the Quebec Court of Appeal, according to some legal observers.
In a ruling that will be the subject of a judicial review by Quebec Superior Court, Justice Diane Quenneville held that while billings are prime facie protected by professional secrecy because it generally contains a description of accomplished tasks, services rendered and often advice given, the amount of legal fees paid to a lawyer is not necessarily protected by professional secrecy.
