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 recently 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.

Weekend reading – 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.

No less than 95 new class actions were filed across the country last year, 47 alone in Quebec, a trend that shows no signs of abating as 17 new class actions were launched in the first three months of this year, according to the Canadian Bar Association’s National Class Action Database. In 2005, only 29 class actions were filed, prompting some legal observers to speculate that the Canadian class action legal landscape is beginning to follow in the footsteps of the United States where a staggering 30 per cent of U.S. companies had a class action filed against them in 2009, revealed a report published in the legal publication L.A. Daily Journal. Statistics from the U.S. Federal Judicial Center suggest that new class action cases filed in or removed to federal court increased 72 per cent between 2001 and 2007, reaching approximately 4,000 to 5,000 annually as of mid-2007 (the last period for which data are available). “What we’re seeing is an extension of what’s been happening in the U.S. for decades,” remarked Adrian Lang, a partner specializing in class actions at Stikeman Elliott in Toronto. Indeed, class actions are now stretching their reach beyond traditional areas such as consumer protection and product liability, and have begun targeting, with growing success, areas once deemed unassailable such as securities, competition law and employment law as well as franchisors and polluters. “All we’re seeing is the evolution of a healthy and robust plaintiff class action bar, and so an increase in the types of claims we see,” added Lang.

Face of the profession will change 10 years from now, predicts Quebec law society

"I'll be happy to give you innovative thinking. What are the guidelines?"

Quebec’s legal landscape, spurred by an ageing population, globalization and rapid advances in information technology, is expected to dramatically change by the turn of the decade, with white male baby-boomers making way for women and minorities battling over an increasingly specialized legal services marketplace, forecasts the province’s legal society in a revealing portrait of the profession.

Over the next 10 years more than 6,100 new lawyers are expected to join the ranks of the Barreau du Québec for a total of 30,381, up from the current 24,225, representing a 2.3 per cent increase, according to a recently published 122-page report entitled “Lawyers in Private Practice in 2021” (available in French only).

70 Quebec lawyers disbarred for failing to complete refresher courses

When the Quebec law society introduced a mandatory legal education program two years ago, even noted Montreal lawyer Gérald Tremblay and head of the Barreau du Québec at the time admitted that “it was not a natural reflex for me to contemplate sitting behind a school desk.”

Nor was it for 70 lawyers, more than half based in Montreal, who failed to complete the required training between April 1, 2009 and March 31, 2011. All were disbarred recently, including Montreal-based lawyer  Brent Tyler, best known for his various high-profile legal challenges to Bill 101, Quebec’s French Language Charter.

Following in the footsteps of the Law Society of British Columbia, the Barreau du Québec introduced the continuing professional development program in April 2009, compelling all of its 23,000 practising lawyers to take no fewer than 30 hours of approved continuing legal education courses every two calendar years to remain in good standing.

“Law is an evolving discipline, and it is important that people stay up-to-date,” Stuart Cobbett of Stikeman Elliott told me at the time the program was launched. “But life being what it is, some people just don’t pay attention to it. Therefore it is a good idea for any self-regulatory body to establish certain minimum continuing education requirements.”

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.

Class actions seemingly alive and well in Quebec

Class actions appear to be thriving in Quebec. A series of suits launched recently seem to enhance the province’s reputation as a have for class action suits. But that may be illusory.

Yesterday FTQ-Construction, the largest construction union in Quebec, was slapped with a class action following an illegal strike that paralyzed much of the industry in late October.

Launched by two entrepreneurs, Turenne Briques et Pierres and Maçonnerie Magloire Gosselinon, the suit is seeking to recoup approximately $10,000 in damages that they claim they suffered during three days of wildcat strikes. The suit is also seeking damages suffered by construction workers who were not paid during the walkout.

In late October, unionized workers demonstrated at dozens of sites across the province in protest over the Liberal government’s proposed reforms for construction union rules. Bill 33 would limit the unions’ power to choose who works on which sites and compel them to open their books to the public.

In another class action development, The Gazette revealed that a class action launched against convicted sex offender Renwick Spence and the English Montreal School Board will go to trial on May 2013, nearly seven years after the motion to institute the lawsuit was first filed in court. Twenty days have been set aside for the trial.

Spence, 82, a former Montreal West High School teacher, pleaded guilty to abusing eight male students between 1967 and 1981. He was sentenced four years ago to 30 months in prison.

And then there’s the class action that caught the atttention of the business community worldwide. A Montreal law firm launched a class action against Research in Motion Ltd. (RIM) on behalf of individuals who lost the use of their BlackBerry devices during a service outage in October. The system-wide failure of the service left tens of millions of frustrated Blackberry users on five continents without email, instant messaging and browsing. The suit alleges that failed to compensate BlackBerry users with refunds for loss of service and must “take full responsibility for these damages.”

But while the latest spate of suits give rise to the impression that Quebec is a class action haven, that is far from the case.

”The jurisprudence in Quebec has evolved, and it can no longer be said that Quebec is a class action haven,” said Jean Saint-Onge, a class action expert with Lavery, de Billy in Montreal.  “Even if it is easier to launch class actions in Quebec, making it more accessible to consumers and by reducing the procedural barriers, the Quebec Court of Appeal has adopted a more rigorous approach to certification.”

High-profile Montreal lawyer wins battle for reinstatement against legal society

In a decisive setback for Quebec’s law society, a renown Montreal divorce lawyer who was originally disbarred for seven years for professional misconduct was immediately reinstated after a ruling by the Quebec Court of Appeal reaffirmed the appellate powers of an administrative tribunal and clarified the role of the Barreau du Québec’s review committee.

In a unanimous ruling the appeal court castigated the law society’s review committee for exceeding its mandate and taking on the role of a disciplinary committee while failing to take into account evidence that demonstrated that Micheline Parizeau had the aptitude and qualities to be reinstated into the profession.

“The Court of Appeal has put the review committee on guard,” noted Alan Stein of Montreal-based law firm Stein & Stein Inc., who teamed up with Montreal litigator James Woods to represent Parizeau. “I hope now that it realizes its powers are restricted and that they cannot act as a disciplinary committee.”

Third Montreal defence lawyer beaten up in less than a year

A criminal defence lawyer who has represented members of organized crime in many high-profile cases, was assaulted outside his home last Friday, making it the third Montreal lawyer who has either been attacked or received death threats over the past year.

Gilles Doré uffered a serious head injury, and is now reported to be in stable condition, according to The Montreal Gazette.

Doré gained notoriety within Quebec’s legal community for writing a stinging personal letter to a judge, criticizing him for being pedant, cantankerous, and petty. The letter, replete with insults and personal attacks according to the Quebec Court of Appeal, was handed to Quebec Superior Court Chief Justice Lyse Lemieux, who forwarded it to the syndic (or investigating officer) of the Barreau du Québec. The syndic filed a complaint before the Barreau’s disciplinary committee, accusing  Doré  of writing an disrespectful letter, that lacked objectivity, moderation and dignity, thereby contravening s.2.03 of the Quebec Code of ethics of advocates (Code). The disciplinary committee found Doré guilty of the infraction, and suspended him from practicing for 21 days. Doré appealed the verdict before the Professions Tribunal and Quebec Superior Court, both of whom rejected the appeal.

In upholding the rulings by the lower courts, the Quebec Court of Appeal found that writing letters is a constitutional right, and that the disciplinary decision violated the appellant’s freedom of expression. “It remains now to determine whether this decision is a reasonable restriction that can be justified in a free and democratic society,” said Justice André Rochon in an 18-page ruling.

That case is now before the Supreme Court of Canada.

Last month, Thomas Kiriazis was the victim of a series of death threats and intimidation, with two vehicles parked in front of his home were firebombed.

Last December Joseph La Leggia, a well-respected lawyer,  was attacked and left badly injured in front of his home. His case too remains unsolved.

Class action authorized against three accounting firms in Mount Real financial scandal

Nearly six years after 1,600 investors were bilked, left holding an estimated $130-million of worthless promissory notes when Montreal financial group Mount Real Corp. was shut down by the Quebec securities regulator, a Quebec judge authorized a class action against two former executives, two financial service companies and three accounting firms.

In a ruling that appears to have lowered the bar for class action certification against accounting firms, Quebec Superior Court Justice Jean-François Buffoni held that the representative plaintiff demonstrated that the allegations she is trying to establish between the fault allegedly committed by the accounting firms and the harm suffered by the class does not “appear to be frivolous nor manifestly unfounded” and stands a reasonable chance of succeeding, even though the representative plaintiff admitted that she did not rely on the audited financial statements to make an investment decision.

Quebec Auditor General report questions usage of courthouses

More than a year after the Quebec auditor general revealed that courthouses in the province are underused and that the provincial ministry of justice fails to analyze readily available administrative and financial data that would help it become more efficient and cost-effective, the justice department is tightlipped over what, if any, progress it has made to remedy the situation.

Already under fire for its handling of the labour conflict with its Crown prosecutors and government lawyers and castigated by the Quebec law society for failing to provide sufficient judicial resources, legal observers are urging the Quebec government to address the findings made by the auditor general.

“The Ministry of Justice has not adopted a set of indicators that would help it evaluate the performance of the system as is the case elsewhere in Canada,” observed Gilles Ouimet, the head of the Barreau du Quebec. “It would be beneficial to heed the auditor general’s recommendations.”

Quebec first province to regulate money-services industry

A recently passed bill that made Quebec the first province to regulate the money-services industry has elicited mixed reactions, drawing praise by some who see it as a blessing for legitimate small businesses catering to ethnic communities, unease by others who are concerned about the potential broad reach of the law, and baffled some legal observers who wonder why the provincial government appears to be duplicating an already existing federal law.

Touted as part of an offensive against money laundering and tax evasion schemes, the Money-Services Businesses Act (Act) introduces a licensing regime for money-services businesses that will be administered and enforced by the Autorité des marchés financiers (AMF), Quebec’s securities regulator. Under the Act, entities or persons operating automated teller machines or offering such services as currency exchange, funds transfer, the issue or redemption of travelers’ cheques, money orders or bank drafts, or cheque cashing, must obtain a licence from the AMF. They must also disclose information about their directors, officers and associates as well as certain types of lenders they deal with.