Law in Quebec

News about Quebec legal developments

  • A sad reminder that friendship and business do not always mix

    “This case is a sad reminder that friendship and business do not always mix.” So begins a lengthy ruling by Quebec Superior Court Justice Geneviéve Marcotte recounting the sombre saga of a successful Montreal businessman, a former corporate lawyer and his wife.

    It is a story about a friendship that turned so sour that Justice Marcotte ordered Earl Takefman, formerly chief executive officer of a number of public companies, to pay Montreal lawyer Elliot Bier and his wife $20,000 each in moral damages, $25,000 each in punitive damages and nearly $42,000 in extra-judicial fees incurred by the couple in the proceedings, together with legal interest.

    What’s more, Takefman has been ordered to cease and desist from communicating to the Biers or to third parties directly or indirectly in writing, including electronic commu­nications such as emails and text messages, any details on the private life, the assets and property of Elliot and Dawna Bier and their financial situation, save and except to his legal counsel and staff.

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  • Canada’s privacy commissioner calls into question ombudsman model

    On the eve of a statutory five-year review of the legislation governing federally-regulated private-sector organizations, the Privacy Commissioner of Canada is openly calling into question the effectiveness of the ombudsman model to regulate private-sector practices for the protection of personal information in light of the recent spate of high-profile data breaches that have compromised the personal information of Canadians.

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  • Judge convicted of first degree murder remains in jail

    Retired judge Jacques Delisle, hoping to become the second person in Quebec in thirty years to be released pending an appeal, will have to remain in jail after Quebec Court of Appeal Justice Richard Wagner ruled that releasing him could undermine the public’s faith in the justice system.

    Delisle, believed to be the first Canadian judge to ever stand trial for murder, was found guilty last month of first-degree murder in the death of his invalid wife by an eight-man, four-woman jury after three days of deliberations. The 77-year-old retired judge, who automatically received a sentence of life in prison, with no possibility of parole for 25 years, plead before the Quebec Court of Appeal that he should be released pending an appeal because he was having a tough time in prison due to his advanced age and the position he held in society.

    Under s.679 (3) of the Criminal Code an appellant may be released pending the determination of his appeal if the appellant establishes that the appeal or application for leave to appeal is not frivolous, if he would surrender himself into custody in accordance with the terms of the order, and if his detention was not necessary in the public interest.

    In a 13-page ruling, Justice Wagner found that Delisle’s application for leave to appeal was not frivolous nor did he pose a flight danger. But Judge Wagner found that a public, knowledgeable about the justice system and the circumstances surrounding the case, would risk losing confidence in the criminal and penal system if “I acquiesced to the demand made by the appellant.”

    “The appellant was found guilty by 12 persons, impartial and independent, of committing one of the most serious crimes sanctioned by the Criminal Code,” wrote Justice Wagner, who was appointed to the Quebec Court of Appeal bench two years after Delisle retired. ”It consisted of a premeditated murder with obvious violence on a vulnerable person. The appellant must establish very serious grounds for appeal to justify, in light of the circumstances surrounding this case, his release. This demonstration was not made.”

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  • Pendulum swings back in favour of issuers in securities class actions

    Nearly a year after a handful of decisions seemingly leaned towards a permissive approach in securities class actions for misrepresentations in public disclosure, the pendulum seems to have swung back after a couple of recent court decisions tilted in favour of issuers.

    In a 163-page ruling Justice George Strathy of the Ontario Superior Court this week dismissed a secondary market securities class action against CIBC because the plaintiffs had failed to obtain the required leave to proceed with the action within the three-year period mandated by the Ontario Securities Act (OSA). Justice Strathy pointed out that he would have certified the action and allowed it to proceed to trial if he had not found the limitation period had expired.

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  • Class actions create ethical minefields

    Class action ethics, an issue barely broached by academic circles, the legal profession and even by regulatory authorities or bar associations, has now surfaced following a series of rulings that underscore the tension between the singular nature of class action litigation and the traditional position that ethical guidelines governing single plaintiff proceedings also apply to class actions.

    In the absence of rules of professional conduct tailored for class action litigation, the courts have begun filling in the gap and providing guidance, albeit on a case-by-case basis, on the ethical minefields that line the class action landscape, the latest of which was Smith Estate v. National Money Mart Company, 2011 ONCA 233, in which the Ontario Court of Appeal voiced concerns the courts have over an uncontested motion for class counsel fees in the face of an adversarial vacuum.

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  • Women make up nearly half of the Quebec Bar’s roll

    Women make up nearly half of the Quebec Bar’s roll

    By 2021 more than half of lawyers in Quebec will be women, reveals the latest annual report of Quebec’s legal society.

    At present, women already make up nearly half of the Bar’s Roll of Order, with 11,838 members or 49 per cent of membership, the highest percentage in North America. On average women practising the profession are younger and have less experience than men. The 12,301 men who are currently practising are around 48 years old and have 21.6 years of experience, compared with women who are 41, with 14 years of experience.

    Young lawyers, those with less than 10 years of experience, represents 35 per cent of the total membership, according to the Barreau du Québec’s 2011-2012 annual report published earlier this month. And that’s where women are gaining ground on men — women make up 61 per cent of young lawyers.

    How and where women practice also differs from men. More than half of men, or 52 per cent, work in private practice, 16 per cent in the public sector and nine per cent in the private sector such as in-house counsel for companies. Women, on the other hand, shun private practice. Barely one-third or 32 per cent work in private practice. Nearly a quarter, or 23 per cent, work in the public sector, 12 per cent in the private sector, and a staggering 30 per cent are on either parental leave or sabbatical or studying.

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  • Top court overturns two decisions by Quebec Court of Appeal in the space of a week

    It should come as no surprise if the Quebec Court of Appeal is nursing bruised egos. In the space of a week, the nation’s top court overruled two decisions by the Quebec Court of Appeal.

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  • Court orders franchisor to pay $16.4 million to franchisees

    In a “sad saga” of a once successful franchise operation that fell precipitously from grace in less than a decade, a nine-year legal battle came to a bittersweet end after Quebec Superior Court condemned Dunkin’ Brands Canada Ltd. to pay 21 Quebec franchisees $16.4 million for failing to protect its brand in the Quebec market.

    In a 43-page ruling, Justice Daniel Tingley castigated the franchisor, formerly Allied Domecq Retailing International (Canada) Ltd. (ADRIC), for trying to pin the blame of its “stunning fall from grace” to the “Tim Hortons’ phenomenon” and underperforming, even poor, franchisees.

    “ADRIC had assigned to itself the principal obligation of protecting and enhancing its brand,” wrote Justice Tingley. “It failed to do so, thereby breaching the most important obligation it had assumed in its contracts.

    “This particular breach was not the result of a single act or omission. It was a failure over a period of a decade (1995 to 2005) to protect the brand brought about by a multiplicity of acts and omissions during the period. Brand protection is an ongoing, continuing and ‘successive’ obligation.”

    Dunkin Donuts has a long history in Quebec, going back to over half a century. In the mid-nineties it was still the leader in the coffee and donut market in terms of sales and number of stores, numbering 218 in 1998. But between 1995 and 2005, virtually all the franchisees experienced stagnant sales, despite a growing fast food market. The Dunkin Donuts’ market share in Quebec had plummeted from 12.5 per cent in 1995 to 4.6 per cent in 2003. Today, only some 13 stores are still operating.

    In stark contrast, Tim Hortons’ stores experienced on average annual sales increases of 7.5 per cent, or over 70 per cent between 1995 and 2005. Tim Hortons’ stores had multiplied five times from 60 stores in 1995 to 308 by 2005, prompting Justice Tingley to observe, “literally, (this is) a case study of how industry leaders can become followers in free market economies.”

    The 21 franchisees have closed their stores or sold them for a fraction of their traditional value, noted Justice Tingley. Until the turn of the century, Dunkin Donuts’ stores could be sold for roughly 50 per cent of annual sales, something that was all but impossible in the new century.

    “This is not a case where the Court has to estimate future damages,” said Justice Tingley. “The franchisees have suffered the losses they claim. They have lost their business; their livelihoods.”

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  • 73 Quebec lawyers suspended for failing to complete refresher courses

    Bernard Valcourt, federal Minister of Atlantic Canada Opportunities Agency, was one of three lawyers recently suspended by the Law Society of New Brunswick for failing to meet the minimum requirements for continuing education and professional development.

    In Quebec the number is far more imposing. According to the recently published 2011-2012 annual report by Quebec’s law society 73 lawyers were suspended for failing to complete at least 30 hours of approved training during a two-year compliance period. Seventy-two other lawyers were stricken off the roll for either failing to pay annual membership fees, failing to enroll or pay into the professional liability fund.The disbarred members will now have to pay a fee and submit a formal request to be reinstated, which will be examined by the bar’s readmissions committee.

    The Barreau du Québec’s syndic, or investigating officer, was kept busy. His department lodged a complaint with the disciplinary council against 57 lawyers and dismissed 1,443 others it investigated.

    The Barreau’s disciplinary committee rejected 17 complaints, found 27 respondents guilty and imposed sanctions in 31 cases.

    From April 1, 2011 to March 31, 2012, the disciplinary committee meted out

      • a suspension of three months or less in 30 cases;
      • a suspension of less than a year in 54 cases,
      • a suspension lasting between one and five years in 25 cases
      • a suspension from five to ten years in three cases.

    The disciplinary committee also imposed a fine of less than $1,000 in 10 cases and handed a fine of more than $1,000 in 19 cases.

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  • News roundup: Tainted water, a falling-tree fatality and a lawyer fined for tax evasion

    The Minister of National Defence is considering appealing a recent class action ruling that awarded $15,000 to residents of a small town near Quebec City inconvenienced  by the contamination of well water by a known carcinogen.

    Quebec Superior Court Justice Bernard Godbout ruled that the class action suit launched by the townspeople of Shannon failed to prove that trichloroethylene (TCE), a solvent used on a nearby army base to clean artillery and ammunition, was responsible for abnormally-high cancer rates in the town. Shannon, a community of 2,000 people, is located near the Canadian Forces Base Valcartier, a huge military defence complex.

    “The evidence did not demonstrate that it is probable that the spilling of TCE contaminated the groundwater under the municipality of Shannon, making it the cause of an abnormally-high number of cancer cases, disease and other allergic reactions,” Godbout wrote in his judgment.

    Justice Godbout found however that the contamination of well water of TCE was an inconvenience to residents and ordered the government to pay compensation of $15,000 to about 300 affected residents who were among the 2,700 present and former residents lending their name to the class-action suit.

    “We will review the decision in order to evaluate next steps,” said Minister of National Defence Peter MacKay in a press release.

    In August 2006, a 27-year old Quebecer was in the driver’s seat of his parked car when an old poplar tree crashed down onto his vehicle during a violent storm, and killed him.

    A coroner’s report on Gabriel Rossy’s death confirmed the tree that fell on him was found to be 90 per cent rotten and had been “dangerous” for at least one or two years.

    His family sued the City of Westmount for failing to maintain the tree, but a Superior Court judge dismissed the action, saying it was a matter that should be dealt with through the province’s Automobile Insurance Act – a ruling that was overturned by the Quebec Court of Appeal in November 2010 who found that the car had nothing to do with Mr. Rossy’s death.

    In a ruling that marked the first the Supreme Court of Canada tackled Quebec’s no-fault insurance plan, the nation’s highest court restored the lower court ruling and dismissed the lawsuit against Westmount. The top court ruled Rossy was using his vehicle as a means of transportation when the accident occurred, and as a result his family must turn to Société de l’assurance automobile du Québec (SAAQ), the provincial automobile insurance board, for compensation.

    “This is enough to find that the damage arose as a result of an “accident” within the meaning of the Act and that the no-fault benefits of the scheme are triggered. Therefore, the respondents’ civil claim is barred and they must turn instead to the SAAQ for compensation,” wrote the SCC in a 7-0 decision.

    “The Court of Appeal erred in interpreting the Act too narrowly,” added Justice Louis LeBel who penned the decision. “Such an interpretation risks unduly restricting the  intended application of Quebec’s no-fault scheme and must therefore be rejected.”

    A Montreal lawyer, charged following a Canada Revenue Agency investigation of an art-donation scheme, was fined $840,000 after pleading guilty to a tax evasion charge before the Court of Quebec.

    Stéphane Saintonge “voluntarily contravened the Income Tax Act in 2003 by enabling a third party to obtain an ineligible amount of tax deductions for the donation of artwork to the Municipality of Larouche,” said Canada’s Revenue Agency.

    The scheme consisted of backdating a series of transactions in order to unduly boost the tax credits claimed, according to the Revenue Agency.

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  • Another labour dispute strikes Quebec’s justice system

    The list of actors in the Quebec justice system who have grievances against the Quebec government continues to flourish.

    Judges sitting on the (TAQ), a specialized court that deals with administrative decisions, recently walked out for a few hours after labour negotiations with the government reached an impasse. In early May, nine of ten coordinating judges, responsible for ensuring rapid and efficient processing of the proceedings, resigned from their administrative duties.

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  • Witnesses testifying in public inquiries NOT necessarily protected

    The lead counsel of a commission of inquiry into allegations of corruption in Quebec’s construction industry inadvertently found himself in the spotlight over a thorny legal question surrounding the immunity of witnesses who testify before the inquiry.

    Sylvain Lussier, lead Commission counsel of the Charbonneau Commission, said that the sworn testimony of witnesses who testify during public inquiries cannot be used against them in criminal proceedings. But the same may not hold true for civil proceedings.

    He then backtracked after his team ostensibly examined the jurisprudence, and asserted that witnesses are protected from civil suits.

    Except that Lussier said nothing new.

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  • Open data: The value of openness

    When Bing Thom Architects set out to investigate the effects of rising sea levels in Vancouver, the firm decided to gather crucial information about the shoreline from the city’s open data web portal. The study ultimately painted a sobering view of the potential impact of climate change: more than $25-billion in Vancouver real estate would be “negatively affected” by a rise in the sea level in the 21st century, excluding infrastructure such as roads, sewers, and electrical facilities. But the research also underscored the value of open government data: information that is collected by government for its own purpose and made available to the public for its own use.

    Open data is essentially information that is free for anyone to use, reuse and redistribute. Proponents of making government data available to the public identify two main benefits: First, innovators of all kinds can use the information to build useful applications and services, and second, it promotes government transparency and accountability and encourages citizen participation in public policy debates. As Andy Yan, the urban planner involved in the Vancouver project observes, “when you have this type of transparency and governments release their databases to the public, you can have these kinds of discussions about public policy out in the open instead of being captured in little clubhouses.”

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  • Quebec’s law society takes bold positions while others remain mum

    Quebec’s law society has chutzpah.

    Over the past month, it has taken a stance on Bill C-10, the Conservative government’s “tough on crime” omnibus bill, flatly stating that it “does not respond to any real need of the justice system” and pointing out that the crime rate in Canada is at its lowest level since 1973.

    The Barreau du Québec took a firm position against the Harper government’s controversial decision to shelve the long-gun registry. It scolded the Conservative government for appointing a unilingual judge to the Supreme Court of Canada. And it is widely credited for forcing Quebec Premier Jean Charest’s hand to grant a public inquiry that will examine corruption in Quebec’s construction industry over a period of 15 years full powers of a public inquiry, including the power to subpoena witnesses and grant them immunity.

    “Our interventions were motivated by our resolve to uphold confidence in our institutions,” wrote Claude Provencher, the Barreau’s executive director. “We want to ensure that the means put in place can truly respond to the objectives sought by society.”

    Canada’s other law societies have remained silent. The Upper Law Society of Canada has over the past month issued press releases expressing its concern about the security of judges in Brazil and the human rights of lawyers in Iran. The Law Society of British Columbia celebrated excellence in legal journalism, the Law Society of Alberta honoured a lawyer for seventy years of service, the Law Society of Saskatchewan issued notices about the legal profession as did the Law Society of Manitoba. The Law Society of New Brunswick had nothing to say over the past few weeks, and the Law Society of Newfoundland and Labrador issued practice notes. The Nova Scotia Barristers’ Society highlighted Movember.

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  • Class action legal landscape in Canada is maturing

    Class action lawsuits appear to be an increasingly pervasive force in today’s business world, with organizations of all stripes, from top publicly-traded companies to small regional enterprises, looking over their shoulders, anxiously watching an ever-evolving legal landscape to see where things are heading next.

    And it’s not necessarily looking good as recent rulings appear to be favouring consumers, and not companies.When a deeply divided Supreme Court of Canada recently held that disgruntled customers in British Columbia can launch class action proceedings even though the fine print of their contracts calls for disputes to be settled through private and confidential mediation and arbitration, it seemed that the long-awaited decision in Seidel v. TELUS Communications Inc. 2011 SCC 15 was but the latest in a growing line of cases that highlights the growing exposure Corporate Canada faces over class action proceedings. (more…)

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Law in Quebec
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