Publications
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Labour shortage: Revised ratios of qualified staff members in child care centres
At a time when the pandemic is continuing to have repercussions and we are experiencing a severe labour shortage, the educational childcare sector is facing unprecedented challenges. These circumstances have led to a reassessment of the standards relating to the presence of qualified childcare staff (…)
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An employer’s criminal negligence upheld on appeal
On August 11, 2023, the Court of Appeal of Quebec handed down a decision in CFG Construction inc. c. R.,1 dismissing the appeal of the guilty verdict against an employer, CFG Construction inc. (“CFG”), for criminal negligence having caused the death of one of its employees. This decision serves as (…)
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Serious Illness Insurance Coverage: An Applicant Hides His True Health Condition in Order to Deceive the Insurer
Recently,1 Justice Isabelle Germain of Quebec’s Superior Court ruled on a case involving insurance fraud in the matter of Paul-Hus v. Sun Life Canada, compagnie d’assurance-vie2. This ruling illustrates that applicants must answer the insurer’s questions honestly; should an applicant try to mislead (…)
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A possible workaround to the long processing times at the Bureau d’évaluation médicale
In recent years, the job market has changed considerably, especially further to the pandemic and the impacts it has had. Employers and employees in Quebec faced unprecedented situations, and these appear to have led to a significant increase in claims for recognition of psychological occupational (…)
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CNESST – Transfer of Costs Under Section 326 of the Act Respecting Industrial Accidents and Occupational Diseases: Important Decision from the Tribunal
Employers subject to the personalized rate or retrospective rate regime know how important it is to control the costs related to occupational injury cases in order to limit the impact on their annual premiums. One way to attain this objective is to apply for a transfer of costs under section 326 of (…)
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Single-Use Plastics Prohibition Regulations: Impact on Businesses
On June 20, 2022, the federal government registered regulations that, as the name implies, prohibit (or restrict, in some cases) the manufacture, import and sale of certain single-use plastics that pose a threat to the environment. The Regulations will come into force on December 20, 2022, with the (…)
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Confinement in an institution: a judge must intervene where evidence is insufficient
In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the (…)
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Managing Employment Injuries in the Age of COVID‑19
The management of employment injury claims has not halted due to the current pandemic. Not only are new employment injuries taking place and claims being filed, ongoing claims are still being processed. Managers must be vigilant in order to limit the financial impact of the pandemic with respect (…)
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Dr. Robot at your service: artificial intelligence in healthcare
Artificial intelligence technologies are extremely promising in healthcare.1 By examining, cross-referencing and comparing a phenomenal amount of data,2 AI lets researchers work more quickly at a lower cost3 and facilitates doctors’ decision-making with regard to diagnosis, treatment and choice of (…)
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Confinement in an establishment: establishments must exercise caution before making an application
In a decision rendered on March 13, 20181, the Court of Appeal reiterated that caution is in order when making an application for confinement. The Court also took the opportunity to review the topic of confinement orders and the supervision and safety requirements that healthcare establishments have (…)
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Itemized invoices: a new obligation for pharmacists
Since September 15, 2017, pharmacists have been obliged to provide itemized invoices not just to their clients but also to third parties such as insurers who are involved in the process of paying the cost of drugs. In response to this new obligation, the Association québécoise des pharmaciens (…)
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Freedom of association of physicians practising at a specialized medical centre: the Supreme Court of Canada declines to intervene
On February 8, 2019, the Supreme Court of Canada dismissed the application by the Fédération des médecins spécialistes du Québec for leave to appeal from the judgment of the Court of Appeal of Quebec1 in a case concerning the freedom of association of physicians practising at a specialized medical (…)
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Caron confirms that employers have a duty to accommodate workers with an employment injury
On February 1, 2018, the Supreme Court of Canada rendered an important decision in Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) v. Caron1 (“Caron”), confirming the position expressed by the Court of Appeal in 20152 as well as the state of the law regarding (…)
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Employers and emergency call centre workers: your liability for property damage is limited
In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the (…)
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Inappropriate conduct, lack of cooperation and insufficient availability
are sufficient grounds for a health institution’s to refuse to renew a physician’s practice privilegesOn May 31, 2017, the Superior Court of Québec1 (the “Court”) dismissed a urologist’s application for judicial review of a decision of the Administrative Tribunal of Québec2 (the “ATQ”) upholding a decision made by the Board of Directors of a health institution (the “Board”) not to renew the (…)
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Essential services in the health sector :
the Tribunal administratif du travail declares section 111.10
of the Labour Code unconstitutionalIn a decision rendered this past August 31st by Justice Pierre Flageole,1 the Tribunal administratif du travail (the “Tribunal”) declared section 111.10 of the Labour Code2 to be constitutionally inoperative. This provision requires that a set minimum percentage of employees must remain on the job (…)
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Victory for the managerial personnel of the Health and Social Services Network in Superior Court of Québec – What is the immediate takeaway?
On July 27, 2017, the Superior Court of Québec rendered a decision in favour of the managerial personnel of the Health and Social Services Network, concluding that the changes made to some of their working conditions by the Minister of Health were null and void.1 Background The Association des (…)
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Practice in a specialized medical centre: limits to the freedom of association of physicians based on their status as participants or non participants
On June 1 of this year, the Québec Court of Appeal1 confirmed a decision of the Superior Court of Québec which had ruled that physicians who participate in the health insurance regime and physicians who do not cannot work together in a same specialized medical centre. In this case, the plaintiffs (…)
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Medical use claims not involving the professional skill of a physician are patent-eligible in Canada.
In a previous newsletter 1, we discussed a change in Canadian patent practice in respect of the patent-eligibility of claims relating to medical uses, further to a decision from the Federal Court 2. Following this decision, the Canadian Intellectual Property Office (CIPO) issued a revised Practice (…)
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A physician refusing to follow a professional training course constitutes sufficient ground for an establishment to refuse to renew the physician’s status and privileges – TAQ confirms its decision
On March 29, 2017, the Tribunal administratif du Québec issued a decision1 (the “TAQ2 decision”) reviewing one of its own judgments (the “TAQ1 judgment”)2 which had confirmed the decision of a health establishment not to renew the privileges of a physician who had refused to follow a professional (…)
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Artificial intelligence and its legal challenges
Is there a greater challenge than to write a legal article on an emerging technology that does not exist yet in its absolute form? Artificial intelligence, through a broad spectrum of branches and applications, will impact corporate and business integrity, corporate governance, distribution of (…)
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Artificial Intelligence and the 2017 Canadian Budget: is your business ready?
The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and (…)
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Authorizations of care and placement: the Québec Court of Appeal imposes parameters on requests for adjournment and reaffirms the admissibility of hearsay in expert evidence
On October 28, 2016, the Québec Court of Appeal1 affirmed a decision of the Superior Court of Québec granting an application for the authorization of care presented by the Centre intégré de santé et de services sociaux des Laurentides (the “CISSS”). Essentially, the patient submitted three grounds (…)
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Put that perimeter in your pipe and smoke it: the imminent broadening of the prohibition on smoking within a nine-meter radius
On November 26, 2016, the new provisions of the Tobacco Control Act1 (the “Act”) will come into force. One of these provisions will considerably expand the scope of the rule which currently prohibits smoking within a nine-meter radius of any door leading to an enclosed place governed by the Act. (…)
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End-of-life care (part 2 of 2)
In our newsletter No. 8, we discussed advance medical directives, which are restricted to three specific clinical situations and allow a person to consent to or refuse in advance five specific types of care in the event that the person in question becomes incapable of consenting to them. In (…)
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Health-care institutions: What is your responsibility when your are faced with a harassing and disruptive visitor?
Last June 16, the Superior Court of Québec1 rendered a safeguard order in an injunction proceeding in favour of a health-care institution the purpose of which was to set conditions for the visits of the daughter of a user of the institution who was an incapable person lodged there, as well as her (…)
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Advance Medical Directives (Part 1 of 2)
Consent to End-of-Life Care Article 11 of the Civil Code of Québec1 states that no one can be made to undergo care without his consent. The Act respecting end-of-life care2 (“the Act”), passed by the National Assembly of Québec, came into force on December 15, 2015. Since that date, a person can (…)
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Authorization of treatment and placement: The Québec Court of Appeal clarifies the meaning of article 393 C.C.P.
On May 10, 2016, the Québec Court of Appeal1 confirmed a Superior Court decision allowing an application for authorization of treatment and placement to a patient. The application had been brought by the Douglas Mental Health University Institute, commonly known as the Douglas, or the Douglas (…)
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Sale of Ophthalmic Lenses Online: the Québec Court of Appeal Decides
In a unanimous decision rendered on May 16, 2016,1 the Québec Court of Appeal confirmed that the delivery of ophthalmic lenses purchased online from suppliers who are not members of the Ordre des optométristes (Order of Optometrists) (“Order”), or the Ordre des opticiens d’ordonnances (Order of (…)
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Contracts by public entities: stay tuned on June 1, 2016
The regulation governing contracts of public bodies leaps into the digital age. The amendments, passed on April 13, 2016, and coming into force June 1, 2016, aim to clarify the rules pertaining to the results evaluation.1 Five key changes Tenders in electronic form are mandatory if so (…)
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Tobacco Control and E-cigarettes: New Challenges for Businesses
Bill 44 has been adopted in the context of a major expansion of electronic cigarette sales.1 Bringing with it significant legislative reforms, this Bill regulates the use of electronic cigarettes in much the same way as it does tobacco. It also amends the Tobacco Act,2 changing its name to the (…)
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Right to return to work: The jurisdiction of the arbitrator or of the CNESST and TAT?
On November 24, 2015, the Québec Court of Appeal rendered a much anticipated judgment in the case of Université McGill v. McGill University Non Academic Certified Association (MUNACA)1 (“McGill”). In this judgment, the Court dispelled the ambiguity that has existed for several years in the case law (…)
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Three important rulings rendered in 2015 by the Tribunal administratif du Québec regarding attending physicians
Over the past year, the Tribunal administratif du Québec (TAQ) has issued several rulings dealing with oversight of the medical practice of professionals working in health and social services institutions. Several of these rulings will be of interest to institutions since they set out principles (…)
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Beware If You Compare: Data Protection May Stop Approval Of A New Drug Submission
Sanofi-Aventis’s ELOXATIN® had been sold in Canada since 1999 under the Special Access Program (SAP) of Health Canada, which allows for sale of a drug in exceptional cases prior to receiving regular marketing approval, i.e. prior to the issuance of a Notice of Compliance (NOC). The active (…)
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A physician’s refusal to undergo refresher training is sufficient grounds for a health institution to deny the renewal of status and privileges
On August 18, 2015, the Tribunal administratif du Québec (TAQ) confirmed the decision of a health institution to not renew the status and privileges of one of its physicians after he refused to undergo refresher training to acquire skills that were necessary to perform his new duties.1 The (…)
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Education: Obligations of physicians practising in a university hospital centre
In a decision rendered on April 30, 20151, the Administrative Tribunal of Québec (the "ATQ") upheld a decision of the board of directors of a university hospital centre that refused to renew the status and privileges of a physician who failed to fulfill the obligations associated with the enjoyment (…)
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Confinement orders: Psychiatric examination reports not automatically excluded when a patient’s fundamental rights and freedoms are violated
In a judgment handed down on January 30, 2015, the Court of Québec held that the failure to respect the prescribed time limits or the violation of a patient’s fundamental rights and freedoms does not lead to the automatic exclusion of a psychiatric examination report concluding that the patient (…)
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Recent developments on patent-eligibility of medical use claims in Canada
Last December, the Federal Court of Canada overturned a decision of the Commissioner of Patents to refuse a patent claiming a fixed dosage regimen for the drug Humira® (Adalimunab) used in rheumatoid arthritis. The Court’s decision 1 is found here: 2014 FC 1251. This Court decision was an appeal of (…)
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Time limit for handling complaints from health care consumers: the Supreme Court of Canada refuses to intervene
On February 26, 2015, the Supreme Court of Canada dismissed Dr. Gilbert Liu's application for leave to appeal a Court of Appeal decision concerning the time limit for handling complaints from users of health institutions. In a unanimous decision rendered September 4, 2014, the Court of Appeal (…)
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The dismissal of an emergency room employee for breach of confidentiality is confirmed
In a decision rendered on December 30, 20141, arbitrator Nathalie Faucher concluded that the dismissal imposed by a hospital centre on an employee for breach of confidentiality was well-founded. The employee, an administrative agent at the emergency room of the hospital centre, was dismissed for (…)
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Dispositions ordering treatment for patients found unfit to stand trial: health institutions must provide prior consent to all components of the order, including the date of admission
On October 3, 2014, the Supreme Court of Canada, by a majority decision of 5 to 4,1 confirmed that a disposition ordering the treatment of an accused who is found unfit to stand trial requires the prior consent of the designated hospital to all the terms of the disposition order, inclusive of the (…)
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Processing Users Complaints in Health Institutions : the Court of Appeal Confirms that the 45-Day Time Limit Is Not Mandatory
In an unanimous decision dated September 4, 20141 , the Court of Appeal confirmed that the 45-day time limit under the Act Respecting Health Services and Social Services2 (ARHSSS) to allow the medical examiner and the local service quality and complaints commissioner to process a user complaint is (…)
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Serious breaches of the duty of loyalty by a human resources employee – Dismissal upheld by the C.R.T.
The Commission des relations du travail, both in its initial decision and on review, dismissed the complaints challenging the dismissal of an employee despite the absence of prior disciplinary measures. The complainant, who was hired in April 2011, held a position as an administration technician for (…)
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The Superior Court of Québec Authorizes the Continuation of Care on a Comatose Patient despite the Refusal of her Parents
On April 1, 2014, the Superior Court issued an interesting decision respecting consent to care1. The Quebec City CHU petitioned the Superior Court in order to be authorized to provide care for a 60-day period to a patient despite the refusal of her parents.On March 14, the 22 years old patient (…)
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The rise and fall of the “promise” attack – A sigh of relief for the pharmaceutical industry
Canada has recently seen a surge of patent validity challenges based on lack of utility. Utility is a legal requirement for patent validity; an “invention” must have some stated or implied practical use to fulfill the requirements of the Patent Act. Normally, a scintilla of usefulness is enough. (…)
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Francization – Bill No 14 amending the Charter of the French language
This publication was authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. The title of this newsletter gives a good summary of the explanatory notes that serve as an introduction to Bill 14, entitled An Act to amend (…)
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Legal newsletter for the health and social services network and health-care professionals, Number 1
Harmonization of Clinical Research Contracts in Quebec Recent Cases in the Quebec Court of Appeal on Authorization of Care
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The Mont Saint-Sauveur Case: Is the Court of Appeal Thinking Outside the Box in the Assessment of Damages?
On August 25th, the Court of Appeal, for the reasons of Justice Nicholas Kasirer, rendered a significant decision with regard to the duty of care required from ski instructors and the assessment of damages awarded to a victim who developed a serious neurological disorder resulting from a ski (…)
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Despite a Recent Judgment of the Superior Court Pertaining to Employees Hired Through an Employment Agency, the Agency may be the True Employer, Depending on the Circumstances
On December 2, 2009, The Superior Court upheld a decision of the Commission des relations de travail which concluded that nurses hired through an employment agency were employees of the health-care facility and, therefore, covered by the bargaining certificate of the union in question.However, the (…)
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Specialized Medical Centres: Newcomers in the Healthcare System
Since January 1, 2008, the “specialized medical centres” provided for in the Act to amend the Act respecting health and social services and other legislative provisions are part of our healthcare system. They were created in response to the Supreme Court’s decision in the (…)
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Gabriel Lessard v. Fernand Labrie et al. The Court of Appeal Confirms the Jurisdiction of the Committee on Discipline of the CHUQ
Gabriel Lessard v. Fernand Labrie et al. The Court of Appeal Confirms the Jurisdiction of the Committee on Discipline of the CHUQ
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Is a Hospital Shielded From Legal Proceedings When It Suspends or Withdraws a Physician's Privileges?
Is a Hospital Shielded From Legal Proceedings When It Suspends or Withdraws a Physician's Privileges?
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The dispute between l'Hôpital Laval and the cardiologists: the final outcome of ten years of legal wrangling
The dispute between l'Hôpital Laval and the cardiologists: the final outcome of ten years of legal wrangling
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The Duty to Defend Revisited... and the Right of a Party to Choose its own Lawyer
The Duty to Defend Revisited... and the Right of a Party to Choose its own Lawyer