CHAPTER 1 – INTRODUCTION TO LAW

What is Law?

LAW

 is a set of rules and principles used to govern conduct of society

 They are applied and enforced by the government
 promotes goals of peace, order and governance
 must be written: if laws are not in written form, there is a risk of unfairness in application
 laws are adopted by the government (lawmakers)

THE LAW OF THE LAND

Origins of Law

 Specialization of skills over time forced greater interaction and dependency between people.
 This greater interaction required rules and regulations to maintain order within a community by
providing:
o Security for each member
o Certainty for future planning
 In some communities, these rules developed as customs or traditions
 In other communities, they were written down (EX: Code of Hammurabi engraved in a stone
column, an eye for an eye concepts)
 Early homogenous communities needed simple laws
 Over time, laws needed to be more complex because
o Population increased
o Technological advances
o Immigration patterns

Role of Law in Society Today

 Ensure security
 Enforces Standards of Conduct
 Maintain Status Quo

LAW & JUSTICE

Law is a set of rules to maintain order and provide fair treatment to all. Justice is a process of
applying the law.

Why do we respect the law: Faith in lawmakers or fear in punishment?

  Law is enforced by the courts (judges)
 Judges need to be respected in order for people to have faith in their decisions
 Justice has to be perceived by the public as rendered fairly. Is the law always
perceived as fair? Are people who cannot afford a lawyer treated under the law?

LAW & ETHICS

 Ethics are moral values, personal views on what is right and wrong
 Ethical principles are not decided by lawmakers. Society’s ethical views on appropriate
behaviour and acceptable conduct changes over time
 Changes in ethical beliefs will help foster changes to the law. Laws adopted 50 years
ago may no longer be appropriate. Laws will change to reflect societal views.
 Laws are often slow to chance since lawmakers must deal with conflicting ethical views
of their constituents
 Laws set out defined standards and are enforced by the courts
ex. Legal minimum wage rate
 Ethical principles on the other hand are subjective in nature and are not enforced by the
courts
ex. Is the minimum wage rate fair?

PRIVATE VS. PUBLIC LAW

Private law: deals with the relationships between persons

- Contractual responsibility
- Non-contractual responsibility

 Does not involve the government acting in its official capacity. Private law does
cover the action of government where the government is acting in a commercial
capacity
ex. Government is an employer or is purchasing goods and services
 Breach of private law: injured person can claim compensation for bodily, moral and
material injury (actual and direct damage you have suffered). Puts you back in
position you were in before the breach occurred.

Public law: deals with the relationship between the government acting in an official capacity and
its citizens
  Enforcement of citizen’s duties to the state
ex. Criminal law and Income tax
 Breach of public law: punishment (not compensation). Government has the power to
punish those who do not respect the law and sets an example for others by doing this.

ONLY DEALING WITH PRIVATE LAW IN THIS COURSE

CIVIL VS. COMMON LAW

Civil law: deals with matters under Quebec provincial jurisdiction

 Historically based on the private law use in France prior to the 1760s
 French law continues to apply after the colonies were ceded to Britain
 All general principles of law are collected and codified into one rule book known as the
Civil Code (of Quebec)

When faced with legal questions, lawyers and judges refer to:

1. The Civil Code: in order to find legislation applicable to their legal problem
2. Jurisprudence: previous court cases

Common law: deals with the federal laws that have common application all across Canada, also
applies in all other Canadian provinces for matters under provincial jurisdiction

 Historically based on the British law system (not the French legal system)
 Under the British system, general principles of law were not codified into a Civil Code

When faced with legal questions, lawyers and judges refer to:

1. Jurisprudence: previous court cases, in order to determine how judges treated similar
situations in the past
2. Statutes: statutes law would be examined if they are unable to find court cases dealing
with the issue. They would look for specific statutes (specific laws) to determine if these
laws in fact set out some principles dealing with the issues in question

SUBSTANTIVE VS. ADJECTIVAL (PROCEDURAL) LAW

Substantive law: sets out specific rights and responsibilities that a person is bound by
ex. Civil Code

Adjectival/Procedural law: rules set out on how substantive laws should be applied
ex. Code of Civil Procedure sets out the steps to take and the order to file
documents when instituting a lawsuit

ONLY DEALING WITH SUBSTANTIVE LAW IN THIS COURSE

LITIGATION

Litigation: formal procedure by which a person takes a court action against another person to
claim damages/recover a debt/enforce an obligation (litigation is also referred to as a lawsuit)

Important terms

 Creditor: the person to whom a debt is owed

 Debtor: the person who owes the debt /obligation to another
 Plaintiff: the person who initiates a lawsuit (litigation) against his/her debtor (plaintiff is
usually the creditor)
 Defendant: person who is being sued (the debtor of a claim)

Class Action: multiple persons having a similar claim against a common defendant, proof of one
person’s claim will be sufficient to prove the damages suffered by all plaintiffs
ex. Purchasers of a new automobile with a defect in the brake system
The cost of repairing the defect in each car is sufficiently similar, to allow a judge
to render a decision compensating a large number of plaintiffs, without each
plaintiff having to get their own garage estimate of the repair costs and
present this evidence to the judge

Benefits of a Class Action

 Saves on court time - one lawyer for all plaintiffs which will help get to court quicker
 Save legal costs to plaintiffs - facilitate access to court for those who may not otherwise
be able to afford a lawyer on their own

Where to institute a lawsuit

 General rule: the plaintiff (creditor) sues the defendant (debtor) in the city in which the
defendant is domiciled
 What if the plaintiff and the defendant live in different cities/provinces/countries? If the
lawsuit is based on breach of contract then:
- The parties can stipulate in the contract which court (city) will be competent to
hear the case. This clause is called Choice of Venue (Forum).
- The parties can stipulate in the contract which law will apply to govern the
contract. This clause is called Choice of Law. Can be very relevant.
Ex. if you live in Quebec and entering a contract with someone from the
State of Washington, which law will apply? Laws of Quebec OR laws of
the state of Washington OR even the laws of another province/state can
apply (this is agreed upon in the contract)

PRESCRIPTION
Prescription: specific delay that you have to institute a lawsuit. After a certain lapse of time,
from the date that the obligation was due or from the date that the damage was caused, a creditor
will not be permitted to take a lawsuit to enforce his/her rights. (Just because you have a legal
recourse against somebody, doesn’t mean that you can institute the lawsuit at any time that you
want). Under common law this is referred to as a limitation period.

 A general rule under the Civil Code of Quebec (for breach of contract and for non-
contractual liability), the prescription to institute a lawsuit is 3 years or less (have to
check before suing someone to make sure your right to sue has not been prescribed)

FEDERAL & PROVINCIAL AUTHORITY

 In Canada the power to pass laws is divided between these two authorities, some areas
are shared
ex. Income Taxes

Federal laws: criminal, currency/banking, immigration, university and intellectual property

matters. Apply the same way all across Canada.

Provincial laws: property, ownership, civil rights, contracts, employment law, non-contractual
responsibility (civil responsibility). The Civil Code of Quebec deals with issues that are under
the authority of the Government of Quebec.

Sources of laws: Sources of law available to assist judges in rendering a decision. There are 4
sources of law.

1. Statutes: written laws adopted by either government (most common)

2. Jurisprudence (Case Law): court judgements/decisions rendered by judges interpreting
statutes or making new law if the statutes are silent (are historical decisions judges have
already made in previous cases)
3. Doctrine: articles and essays written by legal experts analyzing particular areas of legal
concern - especially relevant in areas of law which are new and emerging
ex. Internet transactions (duties, responsibilities, jurisdiction), liability for
defamation on social media, cyber-bullying
4. Custom and Usage (Tradition): commonly accepted historical practices used in a
particular community or pattern of previous activity can be indicative on how a
transaction should be interpreted today

CHAPTER 2 – THE QUEBEC LEGAL SYSTEM

 ONLY DEALING WITH CIVIL COURT SYSTEM IN THIS COURSE

3 Distinct levels:

1. Trial Court (Court of First Instance) - Court of Quebec and Quebec Superior Court
2. Quebec Court of Appeal
3. Supreme Court of Canada

Trial Court
Characteristics:

 All lawsuits start at this level

 Cases are heard by 1 judge
 In Quebec, Civil Law court cases (not criminal) have no trial by jury, only by judge alone
(unlike everywhere else)
 Plaintiff vs. defendant – parties involved in this court
 Takes approx. 4 years from the date the lawsuit is filed until the judgement is rendered –
making it a long time consuming process

Division of authority between Trial Courts:

 Court of Quebec: judges appointed by provincial government, handles all monetary

claims over $15 000 but less than $85 000
Small Claims Court: a branch of the Court of Quebec, hears claims for $15 000 or less,
plaintiffs must be an individual or a company with 5 or less employees, cannot be
appealed, no lawyers, judge effectively acts as arbitrator
 Quebec Superior Court: judges appointed by federal government, claims for an amount
equal or greater than $85 000

Quebec Court of Appeal

Characteristics:

 Hears appeals from the Court of Quebec and from the Quebec Superior Court
 Cases heard by 3 judges, decision by majority not by unanimity
 Appellant (the party who is appealing the Trial Court decision) vs. Respondent – Usually
the Appellant is the one not happy with the decision and lost the case (could be plaintiff
or defendant)
 Approx. 3 year time frame from the date the Trial Court rendered its judgment
 Just because you’re not happy with the decision doesn’t mean you can appeal

2 Factors to appeal
 1. Ground for appeal: have to prove that the Trial Court judge made a material error in
interpreting the facts or applying the law to those facts
2. Right to appeal:
 Automatic right of appeal: where the object in dispute in the Trial Court is equal
or greater than $60 000
 Permission to appeal: permission from the Quebec Court of Appeal in all other
cases (less than $60 000) might be granted, but it’s rare

Supreme Court of Canada

Characteristics:

 Highest court in the land, no appeal beyond Supreme Court of Canada, back in the day
there used to be an appeal to the British House of Lords, but it ended over 50 years ago
 Hears appeals all of the provincial courts of appeal and Canadian territories
 9 judges that will all sit on the case, decision by majority and not by unanimity
 Appellant (the party who is appealing the Quebec Court of Appeal decision) vs.
Respondent – same as Quebec Court of Appeal
 Approx. 3 year time frame from the date the Quebec Court of Appeal rendered its
judgement
 Approx. 10 years to work through the whole court system – there are special cases; the
Supreme Court of Canada can render its decision very quickly
 Can modify Court of Appeal or Trial Court decision, final judgement
 Grounds for appeal: (same and Quebec Court of Appeal) Trial judge or Court of Appeal
judge made a material error in interpreting the facts or the law
 Right to appeal: in all cases only with permission from the Supreme Court of Canada
(NO automatic appeal), as a general rule the Supreme Court of Canada will respect the
decisions of the provincial Courts of Appeal
 Can agree to take on a case if there is a new law that the Supreme court of Canada has not
ruled on before or may agree to hear cases involving issues of public order and national
importance and those dealing with potential charter of human rights infringements
 The amount of money in dispute is not, in and of itself, a relevant factor in deciding if the
Supreme Court of Canada will hear a case

CHAPTER 3 – PERSONAL RIGHTS

INTRODUCTION TO CHARTER OF HUMAN RIGHTS

The Charter of Human Rights is a law with a special purpose. The goal of the Charter of Human
Rights is to balance the rights of individuals in relation to the rights of society.
  While the state should not overly control or repress its citizens, citizens cannot on the
other hand be totally free and do what they want – there needs to be a degree of balance
and order in place
 A Charter of Human Rights should therefore promote the principle of reasonable
accommodation

Canadian Charter of Rights and Freedoms: Federal Charter of Human Rights, deals with certain
areas where the federal government has exclusive jurisdiction
ex. Rights of First Nations communities

ONLY DEALING WITH THE QUEBEC CHARTER OF HUMAN RIGHTS IN THIS

COURSE

QUEBEC CHARTER OF HUMAN RIGHTS

The Quebec Charter of Human Rights applies to all human beings physically in Quebec. It does
not just apply to Quebec residents or Canadian citizens living in Quebec, it applies to everybody
in the province of Quebec, including visitors.

 The Charter covers fundamental freedoms and rights

 There is no Charter protection for corporations (legal persons) or animals (property)
 The Charter is referred to as a law of public order

Law of public order: An individual cannot voluntarily give up (waive) their rights under the
Charter
ex. Cannot sign a contract that says “the Charter of Human Rights does not apply to me
in this situation”, this would go against public order and the contract will be invalid

 The Charter (and other laws) often refers to persons only in the male gender (he, him,
his); this is only a drafting technique – under the rules of interpretation, the masculine
gender include the feminine and the neutral (corporations) gender and references to a
singular person also include the plural

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 1

Section 1 (Juridical Personality): States that every human being has a right to life, and to
personal security, inviolability and freedom. He also possesses juridical personality.

Juridical personality: A concept where everybody is recognized by the law and has the same
rights and responsibilities (no additional protection to the rich, famous etc.)

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 2

Section 2 (Assistance): States that every human being whose life is in peril has a right to
assistance. Every person must come to the aid of anyone whose life is in peril, either personally
or calling for aid, by giving him the necessary and immediate physical assistance, unless it
involves danger to himself or a third person, or he has another valid reason.

 This obligation is not absolute

Good Samaritan legislation (section 1471 Civil Code of Quebec): Exists to prevent an injured
person from suing the person coming to his aid, unless the injured person can prove gross
negligence or intentional fault.

3 Degrees of Fault

1. Negligence (simple negligence): carelessness, breached duty to act in a reasonable

fashion
2. Gross negligence: a reckless disregard for the safety of the people around you
3. Intentional fault: it can be shown where you intended to assault the person in question,
intentional act

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 3

Section 3 (Fundamental Freedoms): Every person is a possessor of the fundamental freedoms.

Including the following (this list is not exhaustive):

- Freedom of conscience (beliefs)

- Freedom of religion – right to practice religion openly
- Freedom of opinion
- Freedom of expression – does not give you the right to defame (liable and slander)
another person
- Freedom of peaceful assembly
- Freedom of association – could have restrictions
ex. A person just got out of prison on parole, restriction from associating with
convicted felons

 There ARE limitations on your freedoms. You cannot exercise your fundamental
freedoms in such a way as to unjustly impair the rights of society

QUEBEC CHARTER OF HUMAN RIGHTS – SECTIONS 4 & 5

Section 4 (Dignity, Honour, and Reputation): Everyone has the right to the safeguard of their
dignity, honour and reputation.

Defamation of character: one cannot say, print or distribute information about people that is
untrue and will damage their reputation.
ex. Blogging falsehoods on social media
Section 5 (Private Life): Every person has a right to respect for his private life

Court case example – one may not take a photograph of an identifiable person in a public place
and distribute/sell the photograph without the subject person’s consent

Some exceptions – crowd pictures at sporting events etc.

QUEBEC CHARTER OF HUMAN RIGHTS – SECTIONS 6 & 7

Section 6 (Property): Every person has the right to the peaceful enjoyment and free disposition
of their property except to the extent provided by law.

 You can do what you want with your property

 You can own property (house, car) and no one can take it without your consent
– Exceptions: expropriation by government (but must pay you fair value), gun ownership
(you need legal permits to own and can only sell to someone with permits), zoning (need
legal permission to build, make use of real estate)

Section 7 (Home): Nobody can enter you home without your consent (you do not have to own
your home for this to apply, you can be renting)

Reasonable Grounds: Emergency responders (firefighters, police) can enter you home without
permission if they deem it an emergency

 If they find anything illegal in plain sight they can charge you with a crime (need search
warrant to investigate further)
 Search warrant: when granted by a judge, police can enter your home without your
permission and search the premises

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 9

Section 9 (Confidential Information): Every person has the right to the non-disclosure of
confidential information.
ex. Medical records, employment records, academic records, bank records, personal
information such as age, religion and marital status

 The purpose of this section is to prevent persons who are in possession of confidential
information to other people without your consent
 In certain situations third parties are entitled to request some confidential information
from you in order to assess you eligibility or suitability
ex. Employers who wish to assess skills, educational qualifications and residential
landlords financial solvency etc. If you refuse to give out this information, you
will not get the job/apartment. Also, law enforcement can request your ID
anytime.
Section 9 (Professional Secrecy): No person bound to professional secrecy by law, nor priest or
minister of religion, may release, even in a court proceeding, confidential information revealed to
them by reason of their position or profession, unless the person who confided this information
authorizes it or unless an express provision of law authorizes the release.
ex. Your relationship with your lawyer; have to divulge all information in order for them
to prepare a proper defense

 Exceptions: hospital/health care professionals are required to report gunshot wounds or

suspicious injuries to an infant, a judge will stop a witness from divulging confidential
information during one’s testimony

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 9.1

Section 9.1 (Reasonable Limits/Accommodation): in exercising their fundamental freedoms and

rights, a person should maintain a proper regard for the democratic values, public order, and
general well-being of the citizens of Quebec

 In this respect, the scope of the freedoms and limits to their exercise may be fixed by law
 The rights of the individual are not absolute and an individual cannot exercise his/her
rights in such a fashion as to cause unreasonable inconvenience to the community
 In the same manner, the rights of the community are not absolute and the community
cannot exercise their rights in such a fashion as to cause unreasonable inconvenience to
the rights of the individual
 The principle of balancing the rights of the individual with the rights of the community is
referred to as reasonable accommodation – we do not give preference to either, always a
question for the courts to determine the appropriate action in a particular situation

QUEBEC CHARTER OF HUMAN RIGHTS – SECTIONS 10, 10.1, 11

Section 10 (Discrimination): The right to full and equal recognition and exercise of one’s human
right and freedoms without distinction, exclusion, or preference based on – race, colour, sex,
pregnancy, sexual orientation, civil status, age (except as provided by law, law provides a lot of
exceptions which are age provided), religion, political convictions, language, ethic or national
origin, social condition, a handicap or the use of any means to palliate a handicap (ex. Guide
dogs, cannot be prohibited)

 Discrimination exists where such a distinction, exclusion or preference has the effect of
nullifying or impairing such right (referring to the list of factors)
 Closed list: only those factors listed are to be considered (not open to include factors not
listed)
ex. Weight and height
  Unless there is another provision in the Charter that prevents distinctions being made on
weight and height then these distinctions per say would not be prohibited by the Charter
 No presumption of discrimination under the Charter – so the burden of proof is on you to
prove that you have been discriminated against (you have to prove discrimination, there
is no presumption because you say you were discriminated against, won’t automatically
believe you)

Section 10.1 (Harassment): Expansion from section 10 – Nobody can harass you based on the
grounds listed in section 10
ex. Verbal, electronic harassment (emails, blogs)

Section 11 (Signs/Symbols/Notice): Expansion from section 10 & 10.1 – Nobody can distribute,
publish, or display pictures, signs or symbols involving discrimination or authorize anyone to do
so

 Anyone authorizing to do so is referring to ex. an editor of a publication

 Graffiti, tags etc.
 While one has the freedom to express oneself, one cannot use this freedom to justify
discrimination

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 12, 13 & 15

Section 12 (Good and Services): No one may, through discrimination, refuse to make a juridical
act (a contract) concerning good and services ordinarily offered to the public (cannot refuse to do
business with you or sell you something for discriminatory reasons – refer back to the list in
section 10)

 Cannot refuse to serve someone in a store due to the fact that they look “poor” (social
condition)
 Accepted forms of payment vs. the ability to pay – ex. Debit/credit card declined, would
you accept a personal cheque? If not, is this discrimination? (Probably not, they have
already displayed the fact that they have no money in their bank account/over limit credit
card)

Section 13 (Contractual Clauses): No one may in a juridical act (contract) stipulate a clause
involving discrimination; such a clause is deemed without effect

 A clause is a paragraph or sentence in the contract

 ex. Your landlord has written into the residential lease contract that you cannot have a
baby living in the apartment. This clause is invalid/null but the rest if the lease remains
valid. (If you sign the lease and have a baby living in the apartment, the landlord cannot
say you’re in violation of the lease – because even though you signed the contract, this
clause is deemed unwritten)
  A landlord can, however, have a clause forbidding dogs in an apartment – animals do not
have protection under the Quebec Charter of Human Rights (dogs are considered
property, babies are human beings)

Section 15 (Public Place): No one may through discrimination inhibit access of another to public
transportation or a public space, such as a commercial establishment, hotel, restaurant, theatre,
cinema, park, camping ground or trailer park, or his obtaining the goods and services available
there

 ex. No one can refuse you from going to a fancy restaurant on a Friday night simply
because you have 3 children with you that may be noisy/problematic
 However, restaurants could refuse to serve someone for health and safety related reasons
ex. intoxicated/dirty apparel – not because you look “poor” but because you are
physically not clean (this is a grey area)
 Loitering – a shopping centre invited the public to come in and shop, it is not simply a
place where you go to spend the day to stay warm in the winter and stay cool in the
summer (if you are going there just to hangout, security has the right to ask you to leave,
this would not be discrimination)
 Your activities in a public place are covered by other forms of legislation. For instance,
under the Civil Code, there are provisions dealing with nuisance
 Nuisance: obligation not to cause undo disturbance to others (you have a duty to act
reasonably at all times and not to annoy the people around you)
ex. Parents of a crying baby can be asking by the movie theatre management to
take their baby and leave – but you cannot put up a sign in the movie theatre that
says no babies allowed
 Something to think about – must a very large/tall passenger purchase two airline tickets?
Referring back to the closed list in section 10, weight and height are not factors
considered as discriminatory. However, every airline has different policies. Air Canada
has a policy that states “one person, one fare” and other airlines (usually outside of
Canada) might make a very large/tall person purchase 2 tickets
 Important concept – just because someone says no to you, doesn’t mean it’s
discrimination

QUEBEC CHARTER OF HUMAN RIGHTS – SECTIONS 16, 18, 18.1, 18.2, 19 & 20

Section 16, 18.1, 20 (Employment) – Meant to be read together

Section 16 (Employment): No one may practice discrimination in respect of the hiring,

apprenticeship, duration of probationary period, vocational training, promotion, transfer,
displacement, laying off, suspension, dismissal or conditions of employment of a person or in the
establishment of categories or classes of employment
Section 18.1 (Employment): No one may in an employment application form or employment
interview require a person to give information regarding any ground mentioned in section 10,
unless: a) the information is useful for the application of section 20, or b) is useful for the
implementation of an affirmative action program in existence at the time of the application

 An affirmative action program is discussed in section 86 of the Charter and gives

preference to those groups who have been historically discriminated against in the past
(especially women and members of visible minorities)

Section 20 (Employment): A distinction, exclusion or preference based on the aptitudes or

qualifications required for an employment is deemed non-discriminatory

 Refer back to section 10 list – are there any aptitudes listed there that could be considered
aptitudes required for employment?
ex. Language is one of the factors in the section 10 list. You are not to use
language in making a distinction when it comes to employment, however, under
section 20, if language is a relevant aptitude required for employment, you can
use language as grounds to refuse somebody a job – speaking French is a relevant
aptitude required for employment in the province of Quebec
 Section 20 also creates exceptions for charitable, religious and non-profit institutions,
which we will not focus on in this course
 Being asked to provide a photograph of you as part of a job application – If the
photograph is being asked for to pre-select/pre-reject candidates (determined by
sex/ethnicity/age) it would be considered a violation of the Charter. But, if the
photograph is being used as an administrative tool (used for reasons of convenience, to
better classify files when a lot of people are interviewing for the job) it may not be a
violation, but it is a grey area

Section 19 (Equal Salary): Every employer must without discrimination grant equal salary and
wages to his personnel who perform equivalent work at the same place

 The law states “equivalent work=equal salary” as opposed to “equal work=equal salary”
because “equal work” is hard to define. Technically, every person is doing something
slightly different, and that may be why the government has chosen the words “equivalent
work”
ex. 10 people working at a call centre 8 hours a day answering questions on the
phone. 1 person is answering questions in English, another in French etc. This is
equivalent work (not equal work) because they are all answering the same type of
questions, but everyone is doing it in different languages
 The history of this provision/section came out of historical issues from the 1970s when
male telephone operators were being paid more than women telephone operators even
though they were doing equivalent work
Section 18.2 (Criminal Record): No one may dismiss, refuse to hire or otherwise penalize a
person in their employment owing to the mere fact that they were convicted of a penal
(provincial laws) or criminal offence, if the offence was in no way connected with the
employment or if the person has received a pardon for the offence

 If you have received a pardon, you are not required to disclose the fact that you have a
previous conviction in a job interview or application. Members of the public, such as
employers, will not be able to have access to your criminal record
 If you have received a pardon, you cannot be asked in an employment interview whether
you have ever been arrested. Being arrested does not mean that you have a criminal
record/were ever convicted
 Convicted means you pleaded guilty in front of a judge or the judge rendered a decision
that you were guilty after a trial
 When you sign a job application form there is usually a printed paragraph on the page
which states that you authorize the employer or its agent/representative to verify all of the
facts and information that you have written on the form. You are therefore authorizing
the release of confidential information including a verification of your criminal record,
the right to contact former employers, your university, your bank etc.
 The second statement of section 18.2: “if the offence was in no way connected with the
employment” – is used to determine whether your criminal conviction is in any way
connected to you current employment or the job you are applying for
ex. You are convicted of shoplifting shampoo at a pharmacy and a year later, you
do not have a pardon, and are applying for a job at a shoe store. Would this
prevent you from getting the job? Yes, even though you were convicted of
shoplifting shampoo and this job involves a different product (shoes), they are
both considered retail/sales and, therefore, the theft would be connected to your
application
 The term “in no way connected” is very general and very broad. Convictions may not be
obviously related to a job – an assault conviction may not allow you to get a job at a bank
because it reflects undesired personality traits (ex. violent) of an employee to a bank
employer

QUEBEC CHARTER OF HUMAN RIGHTS – SECTION 20.1

Section 20.1 (Risk Determination Factors): In an insurance or pension contract, a social benefits
plan, a retirement, pension or insurance plan, or a public pension or public insurance plan, a
distinction, exclusion or preference based on age, sex or civil status is deemed non-
discriminatory where the use thereof is warranted and the basis thereof is a risk determination
factor based on actuarial data

 This means that insurance companies etc. can charge different premiums for men and
women
 ex. Women live longer than men, based on actual data collected, therefore, it is
not discriminatory for men to have a more expensive life insurance policy because
there is a higher risk that the insurance company will have to payout the men

ex. Young women drivers (under 25 years old) have better driving records than
young men in the same age group, therefore, it is not discriminatory to charge
men higher insurance premiums
 In such contracts of plans (insurance and pensions) the use of health as a risk of
determination factor also does not constitute discrimination within the meaning of section
10 – this was an addition to section 20.1 a few years ago
ex. Smokers – data shows that they have a higher risk of getting ill, therefore, they
will pay higher life and medical insurance premiums than non-smokers

QUEBEC CHARTER OF HUMAN RIGHTS: SPECIAL & INTERPRETIVE PREVISIONS –

SECTIONS 49, 52-55 & 86

Section 49 (Damages): Any unlawful interference with any rights or freedoms recognized by the
Charter entitles the victim to obtain the cessation of the interference (an order to make the
violation stop) and compensation for the moral and material prejudice (damages) resulting there
from

 When a complaint has been made with the Quebec Human Rights Commission, the
Commission, after investigation, has the authority to render a decision
 Two types of damages
1. Compensation (s.49 1st paragraph): for moral (dignity, humiliation) and
material (monetary) injury
2. Punitive (s.49 2nd paragraph): this is one of the few exceptions in Quebec law
where punitive damages are available (not many cases of this, only available
where a specific statute allows for it)
 Punitive (or Exemplary) damages serve two functions: 1) punishes the wrongdoer
financially, 2) set an example so that others in the community will not act in the same
fashion as did the wrongdoer who was punished

Interpretive sections of the Charter:

Section 52 (Other Laws): No provision of any Act (other Quebec laws) even subsequent to the
Charter may derogate from sections 1 to 38, except so far as provided by those sections, unless
such Act expressly states that it applies despite the Charter

 In other words, the laws of Quebec have to respect the Charter unless the government of
Quebec clearly says that a special law applies notwithstanding the Charter
  Normal legislative power – a government that passes a law can also repeal it or pass a
different law that will apply notwithstanding the Charter

Section 53 (Intent of Charter): If any doubt in the interpretation of a provision of the Act
(another Quebec law), it shall be resolved in keeping with the intent of the Charter

 The rationale of the Charter (the intent) is to protect human beings and to balance rights
between individuals and society.
 This principle should be taken into consideration when judges are interpreting other
Quebec laws

Section 54 (Binds the State): The Charter binds the government. The government is not
exempted from complying with the law

 If the government is your employer, then they are bound by the Charter

Section 55 (Jurisdiction of Quebec): The Quebec Charter only applies within the boundaries of
the province of Quebec

 This is a normal, recognized legal concept

Section 86 (Affirmative Action Programs): (with reference to Employment Law) The goal of an
affirmative action program is to improve the situation of persons belonging to groups historically
and systematically discriminated against in the past

CIVIL CODE OF QUEBEC (CCQ) – SECTIONS 6, 7 & 8, 9

 The Civil Code of Quebec (CCQ) is a collection of laws that deals with property,
ownership and civil rights
 Introductory provisions of the CCQ: Enjoyment and exercise of civil rights

CCQ Section 6 (Good Faith) & Section 7 (Reasonable Manner): Every person is bound to
exercise his civil right in good faith. No right may be exercised with the intent of injuring
another or in an excessive or unreasonable manner and therefore contrary to the requirements of
good faith

 The CCQ creates an obligation to act in good faith and in a reasonable manner but at the
same time the law creates provisions to deal with the reality of people not always
respecting those duties

CCQ Section 8 (Renouncing Rights) & Section 9 (Public Order): A person may only exercise his
civil rights to the extent consistent with public order. In the exercise of civil rights, derogations
may be made from those rules of this Code which supplement intention but not from those of
public order

 Public order: where a law is deemed in the best interest of society, all parties must respect
it and you can not voluntarily give up your rights under said law
 In a business-to-business situation, the contract is the law of the parties – you are allowed
to change the law voluntarily by agreement, but if the law is a public order, you cannot
change the law
 Laws of public order protect the weaker party who does not have bargaining power.
Examples of Quebec laws which are of public order: the Quebec Charter of Human
Rights, residential leasing legislation, Consumer Protection Act

LEGAL PRINCIPLES

Affirmative Action: a hiring program that provides an advantage to specific groups of persons
including women and members of visible minorities, who have historically been disadvantaged
in the job market

 Reasons for companies to adopt affirmative action programs:

- Ethical duty to help correct historical wrongs
- To ensure that the work force will better reflect the ethnic and social diversity of
the community
- Promotes the company’s public image
- Benefit from government incentive programs

Reverse Discrimination: a possible legal recourse where an affirmative action program has not
been properly applied

 An example of this is if a male candidate sees a less experienced female colleague

promoted above him. If the female colleague had the required skill set to perform the job
and if the employer has a formal affirmative action program in place and properly applied
it, then this situation should not be reverse discrimination. Just because the male
candidate may have stronger “objective skills and qualifications” does not guarantee him
the promotion where the company has an affirmative action program in place
 In order for an action of reverse discrimination to succeed, you would have to show that
the company did not properly apply its affirmative action program or the company did
not have an affirmative action program in place but were applying affirmative action
criteria in the process

CHAPTER 3 (CONT’D) – PERSONAL RIGHTS (CASES)

COMMISSION SCOLAIRE MARGUERITE BOURGEOYS V. SINGH MULTANI
Parties: C.S.M.B. (Appellant) & Singh Multani, in capacity as a tutor to his minor Gurjab Singh
Multani (Respondent)

Facts of the case:

 A 12 year old boy was carrying a sharp object (kirpan) at school that falls from his
clothing
 School official sees it and then boy is told he cannot bring the knife to school
 The boy says this is a kirpan which is an integral part of his religious heritage

Legal issue in dispute:

 Is the kirpan a religious artifact that would be protected under the Quebec Charter or is it
a dangerous item that the school can legitimately restrict

Position of each party:

 School says knife could be used as a dangerous weapon and they have the duty to ensure
that the school is a safe place
 Family claims that this is a religious artifact and freedom of religion is protected under
section 3 of the Quebec Charter
 School board take the initial decision to refuse to allow the kirpan – it is a knife
 School board proposes that he can wear a ceremonial kirpan around his neck
 Is it a knife or a religious artifact? Or both?
 The kirpan is part of a religious practice (Sikh men wear religious attire that includes the
kirpan)
 It is also a 20cm steel knife – it cut its way out of the clothing in the first place
 Boy in question is not a trouble maker, but does that allow him to carry one at school
 The wearing of the kirpan is a recognized religious practice, although not every Sikh man
does so
 The exercise of fundamental freedoms does not enjoy absolute protection
 A public organization cannot accept requests or actions that go against public order and
the well-being of the community. There is a greater likelihood that the enjoyment of a
freedom that contains within it an actual threat to the security of others will rightly be
restrained because it may represent an infringement on the fundamental liberties of others
(This is an example of section 9.1 of the Charter being applied – rights of an individual
vs. the rights of the community)

Court judgement:
  Court of Appeal judgement was that the kirpan is a religious artifact that would be
protected under the Quebec Charter, however it is potentially a very dangerous item and
therefore may not be worn in school
 The Court of Appeal discusses the earlier judgements of the Superior Court and that of
the school board
 The school board decided that the kirpan was not allowed in school
 The Quebec Superior Court overturned school board ruling – the boy can wear the kirpan
as long as he complies with 6 conditions:

1. Worn under clothing

2. Carried in a sheath of wood not metal
3. Kirpan in sheath must be wrapped in fabric and sewn under the clothing
4. The school is authorized to verify, in a reasonable manner, that the boy complies with
the conditions
5. The kirpan must be in the boy’s possession at all times and if lost, he must report it
6. If the boy breaches any of the above conditions he can no longer bring the kirpan to
school
 The Court of Appeal decides no kirpan in school
 School board’s decision was based on removing weapons from school, not based on
religious discrimination
 Wearing kirpans in courts and on airplanes have already been prohibited by court – a
reasonable line must be drawn and an inherently dangerous object is beyond this line
 Reasonable accommodation: section 9.1 of the Quebec Charter, balances the right to
religious freedom with the right of the community to keep students safe
 Supreme Court of Canada overturns the Quebec Court of Appeal decision saying it
infringes on the boy’s freedom of religion
 School board and the boy were both acting in good faith
 Other objects more available at school could be used as a weapon; especially if kirpan
properly carried as per Superior Court ruling
 Banning the kirpan sends the incorrect message that some religious practices do not merit
the same respect or value as others
 Supreme Court of Canada overturns Court of Appeal, but since the boy is now going to a
different school, the issue is moot – they had to address the issue but it is not a pressing
urgency that is prevents the boy from going to school
 Supreme Court of Canada states that they would support conditions similar to those
proposed by the Quebec Superior Court – good precedence for other cases
 SINGH MULTANI (RESPONDENT) WINS CASE

B.C. GOVERNMENT AND SERVICE EMPLOYEES’ UNION V. GOVERNMENT OF THE

PROVINCE OF B.C.
Parties: The B.C. Government Service Employees’ Union (Appellant) & Government of the
Province of B.C. (Respondent)

Facts of the case:

 Female forest firefighter Tawney Meiorin was fired

 Lost her job after 3 years of service after no complaints
 Fired because she failed a fitness test required to run 2.5km in 11 minutes – she ran it in
11 minutes and 49 seconds
 Union filed discrimination suit on her behalf against the Government of B.C.

Legal issue in dispute:

 Legal issue was the aerobic test imposed by the government a Bona Fide Occupational
Requirement (BFOR)
 The employer must prove that the test is a BFOR if they wish to fire her for failing to
pass the test
 To make this proof, the employer must show 3 things (BFOR)

1. The test is rationally connected to the job (Relates to the job as a firefighter – certainly
connected to the job)
2. The employer adopted the test in good faith and for a legitimate work related purpose
(the employer is concerned about the safety of the firefighters and their ability to protect
themselves/coworkers and the ability to do their job safely and protect the property of
citizens – this element has been met)
3. It would not be possible to employ anyone who could not meet these minimum skill sets
– could not pass the test – without the employer experiencing undue hardship (puts onus
on the employer to prove that this test is the absolute minimum requirement for someone
to safety perform the job and if they cannot meet this minimum requirement, it would be
virtually impossible to employ them)

Position of each party:

 Meiorin feels as though she was wrongfully terminated because she failed a test that
proved invalid
 The Government of B.C. says that since she failed the test, she can no longer be
employed as a forest firefighter (for safety reasons)

Court judgement:

 The aerobic test imposed by the government failed to meet the conditions of a Bona Fide
Occupational Requirement (BFOR)
  The Supreme Court of Canada ruled that she should get her job back because evidence
showed that men and women physically respond differently to aerobic training. Men
through practice and repetition can improve their aerobic performance greater than
women can. Since the test did not analyze the aerobic performance of men and women
separately, the test in inherently flawed and cannot be relied upon (test is invalid – data
was incorrectly collected)
 Interesting note: the Supreme Court of Canada refers back to the Court of Appeal of B.C.
decision, where they commented that allowing Ms. Meiorin to win her case might create
reverse discrimination, setting a lower standard for women than for men, and might
discriminate against meet who could meet the standards of women but not the standards
of men (but Supreme Court of Canada does not support this argument – where men and
women perform differently, they should benefit from different tests)
 B.C. GOVERNMENT AND SERVICE EMPLOYEES’ UNION (APPELLANT) WINS
CASE

THERRIEN V. MINISTER OF JUSTICE

Parties: Judge Richard Therrien (Appellant) & Minister of Justice – Government of Quebec
(Respondent)

Facts of the case:

 Judge Therrien was dismissed from his post

 Therrien, soon after being appointed judge, was dismissed after it was revealed that he
had been convicted of a criminal offence relating to the 1970 Front de Liberation du
Quebec October Crisis and served jail time
 After release from jail, he went to law school and was admitted to the Quebec Bar
Association to practice law
 In 1987 he applied for, and successfully received a pardon for this offence
 In 1991, and again in 1993, he applied to become a judge of the Court of Quebec. Both
times when interviewed for this position, he mentions his pardon and his troubles with
the law. In both instances, he was not appointed judge
 He applied a third time in 1996 and did not mention his criminal past in the appointment
interview process. He passed the interview and he was appointed judge
 After being appointed, his criminal past came to light and he was dismissed

Legal issue in dispute:

 Is a judge who received a pardon for a past criminal conviction entitled to rely on the
Quebec Charter prohibition on termination of employment
  Therrien protests being fired – section 18.2 of the Quebec Charter states that one cannot
be refused a job or fired because of a criminal conviction if one has received a pardon for
the offence (he therefore claims discrimination under section 18.2 of the Charter)

Position of each party:

 Therrien feels as though his dismissal was unjustified, referencing section 18.2 of the
Charter
 Minister of Canada feels as though Therrien’s dismissal is justified by failing to disclose
criminal record/pardon in his applications

Court judgement:

 A judge who has received a pardon for a past criminal conviction is not entitled to rely on
the Quebec Charter prohibition on termination of employment since the position of Judge
is an Office and is not considered as Employment
 The Supreme Court of Canada ruled that judges are not employees of the government, in
fact, judges are part of the Judiciary which is a separate branch of the government. The
position of Judge is therefore not a Job, but an Office – while government still pays the
judge’s salary, the judge is not an employee of the government and does not take orders
from the government (role of the Judiciary is to ensure that everybody – including the
rest of the government – respects the law)
 Since the position of judge is not a Job, but an Office, section 18.2 of the Charter does
not apply to a judge (section 18.2 talks about Employment)
 Supreme Court of Canada believes that his dismissal was the appropriate decision. The
Court states that judges are held to a higher standard than ordinary persons – and
therefore – it is correct to dismiss a judge who had problems in the past and failed to
reveal this information (if a judge appears to have not respected the law, this undermines
the public confidence in the court system)
 MINISTER OF JUSTICE (RESPONDENT) WINS CASE

SYNDICAT NORTHCREST V. AMSELEM & OTHERS

Parties: Amselem and Others (Appellant) & Syndicat Northcrest (Respondent)

Facts of the case:

 Some condominium owners wanted to build succahs on their balconies

 Succot (Sukkot) is a religious Jewish festival lasting nine days during which time men eat
and sleep in outdoor huts called succahs
 Since the appellants lived in a condominium complex, they needed to obtain permission
from the condominium co-owners association to build succahs on their individual
balconies
  The condominium co-owners association refused to allow the appellants to build succahs
on their balconies

Legal issue in dispute:

 Would the construction of succahs by several families unreasonably injure the rights of
the condominium owners as a whole
 Would celebrating Succot and building a succah, while a recognized religious practice,
unduly prejudice the rights of the condominium owners as a whole (rights of the
individual vs. The rights of the community – section 9.1 reasonable accommodation)
 Did the appellants give up their rights to build succahs by signing the co-ownership
agreement that gave the decision power over the use of exterior spaces to the
condominium association

Position of each party:

 The appellants believe their freedom of religion was interfered with by not allowing
them to build succahs for their holiday
 The condominium association believes that the appellants should comply with the clause
in the contract that states that they are not allowed any exterior alterations of the property
and by doing so would lower the value of the condominium

Court judgement:

 The construction of succahs by several families would not unreasonably injure the rights
of the condominium owners as a whole
 Quebec Superior Court: rules no succahs can be built on the balconies
 Quebec Court of Appeal: no succahs can be built on the balconies
 Supreme Court of Canada: This case deal with freedom of religion. The court must
balance the rights of the appellant under section 3 of the Charter, with the rights of the
condominium owners as a group under section 6 of the Charter (right to ownership of
property). This is an application of the principle of reasonable accommodation as set out
in section 9.1 of the Charter
 Is there proof that building a succah would lower the value of the condominium building?
No such proof was made by the condominium association
 Supreme Court of Canada: the potential annoyance of a few succahs for nine days a year
is trivial, especially if they are built in a way not to block doors, windows and fire
escapes
 Majority decision from the Supreme Court of Canada (5 of 9 judges): the building of a
succah is a religious practice protected under section 3 of the Charter. Under section 9.1
of the Charter, no proof has been made to show that building succahs will unduly
prejudice the rights of the larger community (all other condominium owners)
  Minority decision from the Supreme Court of Canada (4 of 9 judges): since the
condominium association would allow the appellants to build a communal succah in the
parking lot, this would be considered reasonable, and would respect the section 3 of the
Charter. They also said by signing the co-ownership agreement the appellants gave up
their rights to build succahs on their balconies
 The law is the majority decision, therefore, succahs are permitted under section 3 of the
Charter, and based on section 9.1 of the Charter, there is no unreasonable inconvenience
caused to the larger community
 AMSELEM & OTHERS (APPELLANT) WINS CASE

R. V. KAPP

Parties: Kapp – Non-Native B.C. salmon fishers (Appellant) & R. – Government of Canada
(Respondent)

Facts of the case:

 Fishers were charged with fishing without a licence

 Historically, members of First Nations Communities have always had the right to fish for
food for their own consumption (the rights of members is now entrenched in law)
 The Federal Government is actively promoting the principle that members of First
Nations Communities should have a stake in the commercial fishery market since Native
Communities have historically been economically disadvantaged (Government sees this
as a way to help First Nation Communities become more self-sufficient to generate
economic activity and revenue)
 To promote participation of First Nations Communities in the commercial fisheries
market, the government of B.C. granted Native fishers a 24hr exclusive right to fish in the
Fraser river estuary at the beginning of the salmon season
 Non-Native fishers were unhappy with what they felt was an unfair advantage given to
Native fishers. The non-Native fishers protested by fishing during the restricted, Native-
only, fishing period. The non-Native fishers were arrested and charged with breaking the
law

Legal issue in dispute:

 Does granting special fishing rights to aboriginal persons constitute reverse

discrimination against non-aboriginal fishers
 Non-native fishers claim reverse discrimination against them based on race
 First Nation matters fall under the authority of the Federal Government of Canada, so the
Canadian Charter applies
 Section 15 (subsection 1) of the Canadian Charter prohibits discrimination on grounds
similar to those mentioned in section 10 of the Quebec Charter
  Section 15 (subsection 2) of the Canadian Charter however states that subsection 1 does
not preclude any law, program or activity that has as its object the amelioration of
conditions of disadvantaged individuals or groups, including those disadvantaged because
of race, national or ethnic origin, colour, religion, sex, age, or mental or physical
disability
 Therefore, not all distinctions are discriminatory – an affirmative action program will
inevitably lead to a perceived disadvantage for a majority group, however if the
distinction is authorized under the appropriate law, then this distinction will not be
discriminatory against the majority group
 In this case, the government can therefore adopt a program that provides an advantage to
a specific disadvantaged group of persons, based on race or ethnicity, without this
program being considered reverse discrimination

Position of each party:

 Non-Native persons believed it to be unfair for Native persons to have the advantage of
having a Native-only fishing period
 The Government of Canada claims there is no reverse discrimination being made against
the non-Native persons because law allows them to adopt a program that provides the
ability to grant aboriginals special fishing rights

Court judgement:

 Granting special fishing rights to aboriginal persons does not constitute reverse
discrimination against non-aboriginal fishers
 Court of Appeal of B.C. held on non-natives were in breach because there was a
legitimate affirmative action program in place
 Supreme Court of Canada: held that there was legitimate affirmative action program in
place – since the government was able to prove that the special Native fishing program
falls properly under section 15 (subsection 2) of the Canadian Charter, the court will not
recognize the claim of non-native fishers for reverse discrimination (if the affirmative
action program is valid, the Court will not recognize the claim of the non-natives for
reverse discrimination)
 R. – GOVERNMENT OF CANADA (RESPONDENT) WINS CASE