The Quebec Court of Appeal, handcuffed by the provincial government’s use of the notwithstanding clause, upheld a controversial secularism law that bans religious symbols from being worn by government employees, in a decision lauded by legal observers who endorse the so-called “parliamentary sovereignty clause” while bemoaned by others who deem it to be a “major retreat” from the fundamental principle of the rule of law.
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Employers’ obligation to protect psychological well-being of workers expanded by Quebec bill
The Quebec government, in an initiative welcomed by business and labour, is in the final stages of passing legislation that aims to further prevent and fight psychological harassment and sexual violence in the workplace by adding legal presumptions to make it easier to prove an employment injury or illness stemmed from violence at the hands of a co-worker or employer representative.
Bill 42, now before the Quebec National Assembly undergoing a clause-by-clause examination, introduces a definition that encompasses all speech and language of a sexual nature, extends the time limit for filing a claim, broadens the general duties of employers’ obligation to protect the psychological well-being of employers, and introduces harsher penalties for non-compliance. The bill also compels arbitrators who take on grievances dealing with psychological harassment to take mandatory training.
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Controversy erupts after Quebec Appeal Court grants asylum seekers access to subsidized daycare
Asylum seekers in Quebec, after waging a long legal battle, can now have access to subsidized daycare after the Quebec Court of Appeal found that a provincial policy was discriminatory in a decision hailed by legal experts but mired in political controversy.
The Quebec government will however seek leave to appeal before the nation’s highest court, and has filed a request to stay the unanimous decision by the Quebec Appeal Court until the Supreme Court of Canada renders judgment in order to maintain the ban on access to subsidized daycare for asylum seekers.
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McGill law professors stage one-day strike to spur productive negotiations
A newly certified bargaining unit representing McGill law professors staged a one-day strike after negotiations with the university administration over its first collective agreement stalled, the first time since the university’s founding two hundred years ago that professors erected picket lines on campus.
The Association of McGill Professors of Law (AMPL), handed a strike mandate for a maximum of five days by its members in mid-December, asserts that the university is negotiating in bad faith in spite of the intervention of a government-appointed conciliator by arriving at bargaining sessions unprepared, refusing to meet on a frequent and regular basis, and rebuffing attempts to acknowledge that conditions that have been agreed upon cannot be unilaterally changed by the university and applied to AMPL members without their consent.
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French Language Charter draft regulations provides more clarity but questions remain
Charter of the French Language sheds light on certain areas but raises additional questions, is more restrictive, has more onerous requirements and risks alienating some sectors of the business world, according to legal pundits.
The draft Regulation to amend mainly the Regulation respecting the language of commerce and business, released nearly 18 months after Bill 96 amendments to the French Charter received royal assent, mainly deals with the public display of trademarks and French language labelling of products, but also touches on adhesion contracts and commercial documents.
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Crown prosecutors taking Quebec government to court in wage dispute
Days after Quebec’s adjudicators issued an ultimatum due to a lack of “concrete proposals” over their demands for major pay hikes, Quebec Crown prosecutors, “dismayed and insulted” by the Quebec government’s “bad faith” during negotiations, filed a motion before Quebec Superior Court to invalidate a government decision that affects their working conditions, the latest labour conflict to surface between the Quebec government and leading legal actors.
The application for judicial review and motion, the second legal challenge the Quebec Association of Public Prosecutors for Criminal and Penal Prosecutions has mounted over the past three months, was launched after the Quebec government unilaterally rejected or modified recommendations made by an arbitrator appointed by both parties over normative conditions, including workload, family leave and remote working, said Guillaume Michaud, the organization’s president.
“The aim of this appeal is to get the government to follow the recommendations of an independently appointed arbitrator,” explained Michaud. “If it doesn’t, we end up with a useless mechanism. This means that on day one when I sit down with the government to negotiate, I know that in the end it can decide what it wants. It makes no sense for the other side to have a say at the end and then decide what it wants.”
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Quebec Judicial Council and provincial government still at odds
The Quebec Judicial Council and the Quebec Justice Minister still do not see eye-to-eye.
A month ago Justice Minister Simon Jolin-Barrette and Henri Richard, the new Chief Judge of the Court of Quebec reached an agreement over bilingualism requirements for new judicial appointments that seemingly put an end to an appeal for judicial review before Quebec Superior Court. The review seeks to declare unconstitutional and invalid certain legislative and regulatory provisions adopted in 2022 over selection criteria for candidates for the position of judge of the Court of Québec or of a municipal court.
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Strip search not discriminatory, rules Quebec Appeal Court
A Quebec Human Rights Tribunal that found that a prisoner had been discriminated against during a strip search because he had been viewed by a correctional services officer of the opposite sex was overturned by the Quebec Court of Appeal after it concluded that there was no evidence that the prisoner’s sex played any role in the differential treatment to which he was subjected.
The Tribunal found that the plaintiff suffered discriminatory treatment with respect to the rights enshrined in ss. 4 (but not 5), 24.1, 25 and 26 of the Québec Charter of Human Rights and Freedoms. It ordered the appellants solidarily to pay the plaintiff $6,000 for moral damages, and ordered a prison guard to pay $1,000 in punitive damages.
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Weekly recap – 20 Jan 2024
A company was ordered to pay $1.5 million to settle bid-rigging, a notice issued by the Federal Court over the use of AI, and smokers beware.
Categories: News -
Human rights lawyers hail Quebec tribunal’s finding that pension provision is discriminatory
A legislative provision in the Act respecting the Quebec Pension Plan that financially penalizes disability claimants at age 65 was declared unconstitutional because it infringed the right to equality under the Canadian Charter, held the Administrative Tribunal of Quebec in a decision lauded by human rights advocates who say the ruling may ultimately affect thousands of people.
The long-awaited judgment demonstrates an openness by adjudicators to recognize economic and social rights, and is a clear signal that guidance from the Supreme Court of Canada, particularly in a series of 2020 decisions in Fraser v. Canada (Attorney General), 2020 SCC 28 and Ontario (Attorney General) v. G, 2020 SCC 38, over the notion of substantive equality as opposed to formal equality is making inroads in lower courts and administrative tribunals, according to human law experts. In Fraser, the Supreme Court underscores that substantive equality underpins the court’s equality jurisprudence, and is at its heart the recognition that identical treatment may frequently produce serious inequality.
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Montreal lawyer disqualified as representative counsel in proposed cryptocurrency class action
In a case that deals with the bounds of “entrepreneurial lawyering” and whether it exceeds the “proper limits of ethical rules,” Quebec Superior Court disqualified a Montreal lawyer as the representative’s counsel in a proposed class action suit seeking compensatory and punitive damages for individuals who bought or sold cryptocurrencies from Shakepay inc.
The proposed class action in essence alleges that Shakepay charged hidden commissions, contravening the Consumer Protection Act, Civil Code of Quebec, and the Competition Act.
Justice Lukasz Granosik said that disqualifying a lawyer requires a “great deal of circumspection.” But a combination of “minor transgressions” occurred in this case crossed the line, held Justice Granosik in Abicidan c. Shakepay inc., 2024 QCCS 11.
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New trend in case law emerges dealing with work-related psychological trauma
A new trend in case law dealing with work-related psychological trauma has emerged over the past year that both clarifies the test dealing with workplace mental injury and will likely lighten the burden for employees to make their case, according to legal pundits.
A series of decisions by the Quebec Administrative Labour Tribunal adjudicators have called into question the widely-held notion, fleshed out in the 1990s, that the event or series of events alleged to be the cause of the mental injury be objectively traumatic, a requirement that imposes a burden of proof that is higher than the balance of probabilities, noted employment and labour law experts.
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Quebec municipal court reforms draw mixed reactions from legal community
A comprehensive legislative reform of the municipal court system recently introduced by the Quebec government has drawn mixed reactions, with the legal community applauding the initiative but equally concerned that it may undermine judicial and institutional independence of municipal courts.
Bill 40, the most significant remodelling of municipal courts in more than two decades, establishes to the surprise of legal observers a management structure for municipal courts that is entirely independent of the Court of Québec; eliminates part-time municipal court judges; and places all municipal judges on an equal footing, allowing them to earn the same salary as current municipal judges who practise on an exclusive basis.
But to the consternation of legal actors, from judges to the Quebec bar, Bill 40 also grants the government, after consultation with the chief municipal judge, the power to designate a co-ordinating judge and determine the term of office. The bill also provides that co-ordinating judges and the chief municipal judge must send a report on their activities at least twice a year to the Quebec justice minister, and it requires the chief municipal judge to “meet the performance targets of municipal courts and consider the needs of municipalities and litigants.”
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Court’s approval of remediation agreement yields guidance but raises questions
A remediation agreement sanctioned by Quebec Superior Court, the second in Canada, sheds new guidance and fleshes out principles applicable to the unique regime but also raises concerns over the opaqueness of the process and the relatively hands-off approach by the court, according to legal experts.
The “important” decision, the first one involving the Public Prosecution Service of Canada (PPSC), reaffirms that courts must follow a deferential approach towards the terms of the agreement; rejected contentions that approval hearings should be in- camera; and held that in the absence of victim reparations — a “core value” of the regime — prosecutors must provide reasons why reparations are not appropriate.
Quebec Superior Court Justice Marc David also provides clarity over a victim’s standing to intervene in the proceedings and approvals of settlements, holding that the remediation agreement framework is not designed to resolve private civil law liability issues as it recognizes only two participants in the process, the prosecutor and the accused organization.
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French-language law faculties grappling with new breed of generative AI tools
A year after the emergence of a new breed of generative artificial intelligence tools were thrust into public consciousness, with the program ChatGPT leading the charge, French-language law faculties in Quebec, Ontario and New Brunswick are still grappling over its far-reaching potential impacts on teaching and learning in higher education.
The widespread availability of free and low-cost AI chatbots capable of generating sophisticated, human-like responses culled from heaps of data from open-web content has stirred debate and prompted deliberation within French-language law faculties over a host of issues, ranging from academic integrity or cheating, cognitive bias, privacy and security concerns, intellectual property rights, and the benefits and risks of implementing AI tools in teaching and learning.
Some law faculties, while they have not closed the door on implementing their own internal policies, have however opted to wait for their institution to forge an establishment-wide AI policy. Others such as the Université du Québec à Montréal see no need for a university-wide policy or formal departmental guidelines governing the use of AI, other than the stipulation that students respect academic integrity regulations.
“It’s clear that things are changing fast, which is why we need to work well,” said David Robitaille, vice-dean of studies at the Faculty of Law – Civil Law at the University of Ottawa. “It’s certainly a priority issue for faculties, at least for ours. But we shouldn’t rush into solutions too quickly.”