Law in Quebec

News about Quebec legal developments

  • Bastarache commission: Respected counsel caught in the maelstrom

    The lead counsel who resigned from the Bastarache Commission after being caught in a maelstrom that raised doubts over his impartiality “deeply regrets” missing the opportunity to leave at the twilight of his career his imprimatur on the inquiry into alleged political interference in the nomination of judges.

    Barely a week after being appointed as the chief prosecutor by former Supreme Court justice Michel Bastarache, Quebec City lawyer Pierre Cimon bitterly submitted his resignation after becoming the target of intense scrutiny from the media and opposition in the legislature following revelations that he had regularly contributed to the Quebec Liberal Party. Between 2002 and 2007, Cimon made five donations ranging from $250 to $500 – far less than what he gives to the Barreau du Québec’s Foundation or his local parish.

    “I donate to the local parish even though I am not a churchgoer,” said Cimon. “I donate because I believe churches play an important social role. It doesn’t mean that I practice and believe in the church’s dogma or agree with Cardinal Marc Ouellet’s position that abortion should be criminalized. The same holds true for the donations I made to the Liberals. I am a federalist, and that was the only place I could donate.”

    (more…)

    Categories: , , , ,
    Tags: ,

  • Bastarache Commission’s report published

    The jury is out. Now that the Bastarache Commission’s 290-page report on Quebec’s judicial nomination system has been published (including a 34-page English summary), political spinning is in full grind. The report exonerates Quebec Premier Jean Charest, dismisses allegations made by former justice minister Marc Bellemare that the judicial appointment process in Quebec was tainted six years ago, and makes 46 recommendations to address weaknesses in the Quebec judicial selection and appointment process.

    Bellemare dismissed the report, Quebec’s opposition parties claim the report was a farce, and editorials weighed in with their observations.

    Bellemare is sticking to his story. The former minister believes that the public at large will believe his version of events, regardless of the findings of the report. He may have a point. A poll taken by CROP, taken on the Internet, says that 66 per cent still believe Bellemare’s allegations, that is, that he faced undue pressure from Quebec Liberal Party fundraisers (with the consent of Premier Charest) to nominate two judges of the Court of Quebec and promote a third during his tenure as justice minister from April 2003 until April 2004.

    Parti Quebecois leader Pauline Marois accused the Bastarache commission of ignoring reality while the right-wing party ADQ deplored the gapping omissions.

    In its editorial the Montreal Gazette said that the commission report’s recommendations for improving the appointment process and “enhancing the composition of the provincial judiciary are pertinent.”

    The well-respected French-language Montreal newspaper La Presse has several opinion pieces on the Bastarache, all worth reading, beginning with legal columnist Yves Boisvert who notes that the “prudent” report has made worthwhile recommendations to improve the judicial nomination process.

    Alain Dubuc says that the provincial government has no choice but to act quickly to implement the changes recommended by the former Supreme Court justice while political columnist Vincent Marisal states that lost Premier Charest lost his bet – the findings of the Bastarache report will do nothing to alleviate the pressure on the highly unpopular Premier to hold an inquiry into the construction industry. Rumours of corruption and illicit political ties with the governing party have been growing over the past year.

    The Globe and Mail editorial holds that Premier Charest was “unjustly made to wear the failings of the judicial appointments system,” while the influential French-language paper Le Devoir does not seem to hold much hope that things will change.

    Some pertinent background material I wrote. It focuses on inquiries, immunity within the context of inquiries and recommendations to improve the judicial nomination system made by a panel of experts commissioned by the Bastarache inquiry, recommendations that the Bastarache paid heed to.

    A lot of links, a lot of reading, but all worthwhile as it provides a unique glimpse on how the judicial nomination system has surprisingly captured the attention of Quebecers.

    Categories: ,
    Tags:

  • News roundup – Kirpans, Norbourg & pay equity complaints

    Quebec’s National Assembly raises controversy after barring Sikhs for carrying kirpans, prompting questions surrounding reasonable accommodation of religious minorities.

    Court of Quebec rules that order to stop 2007 demonstration during  a North American leader’s summit in Montebello contravened the Canadian Charter of Rights and Freedoms.

    Victims of the multi-million-dollar Norbourg financial scandal have new hope they may recover all their money.

    Quebec workers eligible for pay equity urged to file complaints before  May 30, 2011. Employees who file a claim before the May deadline, and who win their cases, will be eligible to receive full retroactive payments from their employers, including interest and additional penalties. Workers who file after the deadline will only be eligible to receive retroactive payments for the previous five years.

    Categories: , ,

  • Wake-up call for children’s sports organizations

    A wake-up call has been served to organizations that supervise groups of children following a closely-watched ruling by the Quebec Court of Appeal that appears to have set a higher standard of care while emphasizing that non-pecuniary losses should be evaluated subjectively, without using a pre-established method of calculation or holding judges to be “prisoners of past findings.”

    In a 30-page judgment that examined in depth the principles of contractual civil liability, the Quebec Court of Appeal upheld a lower court ruling that awarded the parents of a nine-year old boy who developed a serious neurological disorder following a ski accident $2.4 million in their capacity as tutors for their child’s future losses of income, non-pecuniary losses and management fees as well as $340,000 to the parents in their personal capacity.

    (more…)

    Categories: , , , ,
    Tags: , , ,

  • News roundup: National securities regulator challenge, labour strife, Lt-Governor heads to court & Bastarache

    Hearing before the Quebec Court of Appeal on national securities regulator challenge by the Quebec government expected to last a full week.

    Quebec’s legal system may end up being crippled next week as crown prosecutors and lawyers step up their pressure tactics. Ninety per cent of membership representing Quebec government lawyers voted for a strike on Monday. Crown prosecutors are expected to vote on pressure tactics this Saturday. For more background, here’s a story I wrote about the grievances lodged by an organization representing provincial government lawyers.

    Lieutenant Governor of Quebec Lise Thibault heads to court on January 31, 2011 to face criminal charges, including fraud, forgery and breach of trust in connection with allegations of extravagant spending while in public office.

    Long-awaited Bastarache report on judicial nomination system to be released on Wednesday, January 18, 2011. Here are a couple of stories I wrote on the Bastarache inquiry, immunity in commissions of inquiry, and the nature of public inquiries.

    Categories: , ,

  • The art of writing judgments

    When the Associate Chief Justice of the Quebec Superior Court André Wery was nominated to the bench in 1997, he considered he knew how to write well. Admitted to the Quebec Bar in 1975, he practiced for nearly 23 years in general and commercial litigation at the firm Desjardins Ducharme, and felt that he had honed his skills by writing hundreds of opinions and just as many briefs. “I must admit that I had quite a bit of confidence in my talent to write law,” admitted Justice Wery before a packed audience.

    But shortly after being nominated, the chief justice handed Judge Wery a bunch of documents including a small handbook entitled “Ēcrire la decision” (Writing judgments). Penned by Louise Mailhot, a lawyer who served as a Quebec Superior Court judge and then for a nine-year spell from 1987 to 2006 served on the Quebec Court of Appeal, the handbook has become “a must-have” for judges writing judgments, says Wery.

    While leafing through the handbook, “I began to hold doubts about the way I wrote,” said Wery “The more I read this small book, the more I doubted myself. Up to them I took great care in using abstruse expressions, the most abstruse possible. Probably because in a subliminal way I was trying to justify the fabulous fees that I was charging my clients, saying to myself that if the client doesn’t understand it then the client would say to himself it must be worth the price I’m paying.”

    Judge Wery then realized that he basically had to “start from zero,” and learn how to write again, an exercise he begun by asking himself who was he writing for. “Who we write for determines how we do it, what words we choose and the style we choose,” observed Justice Wery.

    Categories: ,
    Tags: ,

  • Plain language making inroads in Quebec

    In what appears to be a clear sign that the Quebec legal profession has begun to embrace the plain language movement, a guide aimed at lawyers written and published by the Barreau du Québec has proven to be so popular that the law society ran out of copies two days after making it available. (more…)

    Categories: , , , ,
    Tags:

  • Inuit using land claims agreements to address the environmental challenges

    In the midst of grappling with the impact of global warming on the Arctic, with a seemingly growing list of nations laying competing claims to maritime access to the Northwest Passage and the riches lying beneath the forbidding landscape, the Inuit are turning towards land claims agreements reached with the Government of Canada to address the environmental challenges faced by their communities.

    Faced with a way of life under siege, the Inuit have already begun testing the flexibility and fluidity of northern land claims agreements, having filed a $1-billion suit against the federal government in what may be a foreshadow of long drawn-out legal battles spurred in part by shifting environmental and climatic changes in the north. (more…)

    Categories: ,
    Tags: , ,

  • Quebec rulings declare rules on impaired driving unconstitutional

    Days before Canada’s toughest impaired driving laws came into effect in British Columbia, two partially-conflicting Court of Quebec judgments have thrown into doubt the fate of changes introduced two years ago by the federal government that strengthened drug-impaired driving rules.

    In a 160-page comprehensive ruling that provides a broad overview of impaired driving litigation in Canada, Court of Quebec Justice Pierre Lortie ruled that the new amendments dealing with impaired driving offenses introduced by Bill C-2, the Tackling Violent Crime Act, were unconstitutional as it infringed the presumption of innocence as guaranteed by the Canadian Charter of Rights and Freedoms (Charter). Judge Lortie also concluded that the provisions did not constitute reasonable limits as per s.1 of the Charter, and declared s. 258 c, d.01 and d.1 of the Criminal Code null and void.

    But in a separate recent ruling, another Court of Quebec judge ruled that the amendments were only partly unconstitutional. In a 51-page ruling, Justice Conrad Chapdelaine concluded that the presumptions of identity set out by s.258 (1)c) and s. 258 (1)d.1) of the Criminal Code infringe s.11(d) of the Charter. But unlike Judge Lortie, Justice Chapdelaine found that the presumption of accuracy foreseen in s.258 (1)c) of the Criminal Code did not violate the Charter. Nor did he find that the restrictions imposed by the legislator that precludes the use of evidence — such as the amount of alcohol the accused consumed and the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body —  to demonstrate that an approved breathalyzer instrument malfunctioned violated the Charter. (more…)

    Categories: , , , , ,
    Tags: ,

  • Popular works should enjoy narrower copyright protection, argue legal experts

    When Australian Federal Court judge Peter Jacobsen ruled that a famous flute riff from the hit Down Under by the pop group Men At Work plagiarized a popular nursery rhyme from the Girl Guides, it once again underscored divisions over the implicit and explicit role that popularity should play in the copyright debate.

    In a ruling that marked the end of a three-year legal battle, Judge Jacobsen held that the riff in the song, which topped the charts in the United Kingdom and America in early 1982, infringed on the copyright of Kookaburra “because it replicates a substantial part of the song” written by written by teacher Marion Sinclair.

    While the ruling held strong to the unstated position that popularity sometimes can and does actually increase the protection a work is afforded, not everyone is swayed that such views should be hold true in the digital age. (more…)

    Categories: , ,
    Tags: ,

  • Researcher awarded $700,000 in intellectual property rights case

    When the Quebec Court of Appeal recently condemned one of Canada’s leading engineering schools to pay a researcher more than a half a million dollars for his share of revenues generated by an invention he co-invented, it marked the fourth case in less than a year that the courts mulled over the rights and obligations of a university over inventions made by its academic staff.

    In an intellectual property case that will likely catch the attention of the Canadian IP and legal community, the Quebec appeal court held that Mohammed Ali Fardad was entitled to $715,000, plus interest, after it found that the intellectual property policy formulated by École Polytechnique de Montréal (EPM) applied not only to inventors who are its employees but also to inventors who use the school’s resources or services.

    “It’s an important case for university researchers and scientists who don’t necessarily deal with contracts and negotiations as it tells them that they do have rights and that they are entitled to financial benefits from the product of their work,” noted Robert Kugler of Kugler Kandestin, L.L.P. in Montreal who successfully represented Fardad. (more…)

    Categories: , , , ,
    Tags:

  • Growing trend of unrepresented litigants is disturbing, says judge

    The surging number of unrepresented litigants trying to navigate the complex demands of law and procedure may leave legislators with little choice but to review and enact simplified rules of practice to make justice more accessible, said the chief justice of Quebec’s Superior Court at a conference examining the disturbing trend.

    The figures are alarming, with an average of 37 per cent of parties representing themselves in civil matters before Quebec Superior Court, revealed Judge François Rolland. In divorce cases before Quebec Superior Court, 36 per cent of Quebecers are unrepresented litigants, a figure that rises to 42.1 per cent in family matters dealing with child custody and separation. Almost 42 per cent of parties appealing a sentence in criminal matters before Quebec Superior Court are unrepresented litigants while 38.8 per cent of individuals facing a motion that could authorize their psychiatric treatment do not have legal representation, prompting Justice Rolland to remark that if anybody “should be represented it seems to me it’s the treatment cases.”

    (more…)

    Categories: , , , ,
    Tags: ,

  • Appeal for broader access to legal aid snubbed

    A call by the Barreau du Québec to broaden access to legal aid by relaxing financial eligibility thresholds was quickly dismissed by Quebec Justice Minister Jean-Marc Fournier who declared that the provincial government can’t afford to inject more monies into the province’s government-funded legal aid program.

    Before considering reforms, the Quebec government intends to see through a five-year plan launched in 2005 that confers annual indexation coupled with marginal increases of legal aid eligibility thresholds, added Fournier, who articled at a Montreal legal aid office in 1982.

    “There are always requests for increased government assistance but that must be balanced with the capacity of the State and its citizens to pay,” said Fournier at a scrum shortly after the Barreau summoned the government to enact legal aid reforms. “So for the time being we are going to apply the play adopted five years ago.”

    (more…)

    Categories: , ,
    Tags: , ,

  • Law society urges improvements for people suffering from mental illness

    The figures are disturbing. Barely five per cent of individuals facing a motion ordering their psychiatric confinement were represented by a lawyer before the Court of Quebec in the small town of Alma in the Saguenay–Lac-Saint-Jean region. In neighbouring Chicoutimi, the figures over a ten-year stretch between 1998 and 2008 were just as appalling. The situation was not much better in Montreal, with less than 25 per cent of individuals facing the same fate even present at such hearings, and of those scarcely half had legal representation.

    Spurred by the wrongful conviction of an intellectually disabled Quebec City man who served six years in prison after confessing to a series of sexual assaults that a DNA test proved he did not commit, a sober report penned by a nine-member committee of the Barreau du Québec issued a slew of recommendations to improve the way the provincial justice system deals with people afflicted with mental illness or suffering from intellectual disabilities.

    “We must absolutely find ways to treat people with mental illness or the intellectually handicapped just like every other citizen,” remarked Jean-Pierre Ménard, a Montreal lawyer specializing in health and medical liability who was part of the committee. “People who are afflicted with mental health problems face atypical legal procedures that infringe fundamental rights. So it is unacceptable that the justice system allows these people to be treated without the right to defend their rights.” (more…)

    Categories: , , , , ,
    Tags: ,

  • Quebec to appeal ruling allowing common-law couples from seeking alimony

    Quebec will ask the country’s highest tribunal for permission to appeal a controversial court ruling that has opened the door for common-law couples in the province to seek alimony and may lead to a surge in co-habitation agreements, triggered deliberations over the definition of common-law couples, and spurred debate over the role of the judiciary.

    “The Quebec Court of Appeal is not giving choices to the legislator,” said Quebec Justice Minister Jean-Marc Fournier. “We have to see if we have more room to manoeuvre than what the court of appeal is saying, just to be sure to adapt the right solution for a situation lived by more than one million people.”

    In a ruling that touched off a storm of heated debate that is still raging in the province, the Quebec Court of Appeal declared that s. 585 of the Civil Code was unconstitutional because it discriminates against common-law couples by denying them the same recourse to spousal support as people who are married or in civil unions.

    (more…)

    Categories: , , , ,
    Tags: , , , , ,
Law in Quebec
Powered by  GDPR Cookie Compliance
Privacy Overview

This website uses cookies so that we can provide you with the best user experience possible. Cookie information is stored in your browser and performs functions such as recognizing you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful.