Publications

Packed with valuable information, our publications help you stay in touch with the latest developments in the fields of law affecting you, whatever your sector of activity. Our professionals are committed to keeping you informed of breaking legal news through their analysis of recent judgments, amendments, laws, and regulations.

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  • Authorizations for treatment: the Court of Appeal rules on the legal representation of patients and hospitalization and re-hospitalization clauses

    In a decision rendered on September 1, 20221, the Court of Appeal of Quebec stated that a judge seized of an application for authorization for treatment must ensure that the patient in question can be heard and assert their rights. The Court also took the opportunity to analyze the indefinite hospitalization clauses and the re-hospitalization clauses made necessary following a subsequent deterioration in a patient’s health. Legal representation of patients The Court’s reasoning was based on the following elements: Article 90 C.C.P. allows the judge to appoint a lawyer ex officio to safeguard the rights and interests of an incapable person; A hearing on an application for authorization for treatment should not be held without the person who is the subject of the application being represented by a lawyer; The principle that such a person should be represented by a lawyer may have certain exceptions, but it can only be discarded after steps have been taken to offer the person involved the presence of a lawyer, following a close consideration of the stakes and circumstances of the case and of a decision expressly reasoned by the judge. As such, when an application for authorization for treatment is presented, the following analytical framework must be applied from the start of the hearing: The judge must assess whether the person concerned is incapable. To meet this first requirement, preliminary evidence of “likelihood of incapacity” must be provided2; The appointment of a lawyer must be necessary to safeguard the rights and interests of the person3 When these conditions are met, the judge must suspend the proceedings under article 160 C.C.P. for the period necessary for a lawyer to be appointed to represent the patient. The court may also issue a safeguard order. If the judge is not convinced that the second condition is met, they can withhold their decision and hear the evidence. Once the evidence has been adduced, they can decide to issue a safeguard order if the steps are met or decide on the merits of the application if this second criterion has not been met. In the latter case, they must expressly state the reasons which led them to this conclusion. The Court pointed out that prior to a hearing, a healthcare establishment must make sure that everything is done to ensure that the person concerned has the possibility of being represented by a lawyer. The bench is also of the view that the presence of an available lawyer at treatment hearings would be an ideal practice in order to allow the judge to appoint them ex officio. Hospitalization and re-hospitalization clauses In this case, the patient challenged the finding that they must remain hospitalized from the delivery of the judgment authorizing their treatment until their medical discharge. The court pointed out that in the absence of appropriate evidence, it is not up to the Court to usurp the role of the medical profession by setting a term for an ongoing hospitalization. The court maintained the order’s conclusion that the patient’s hospitalization should continue “until the attending physician deems [the patient’s] condition has sufficiently stabilized to allow them to be discharged safely.” Finally, the patient also challenged the conclusion of the judgment relating to their re-hospitalization in the event of non-collaboration with treatment. The Court of Appeal clarified that a clause of this nature should not be a sanction for non-compliance with the treatment plan. A re-hospitalization clause for non-collaboration depends on the circumstances of each case and must be substantiated by appropriate evidence. However, the court does not rule out that this eventuality may justify the re-hospitalization of a patient if evidence to this effect is presented. The members of Lavery’s Administrative Law team regularly represent healthcare establishments and remain available to advise you and answer your questions in connection with this new development in jurisprudence. A.N. c. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’Île-de-Montréal, 2022 QCCA 1167 Para. 33 et seq. Para. 49 et seq.

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  • The Supreme Court examines the notion of abuse of process in the case of inordinate delay in administrative and disciplinary proceedings

    The Supreme Court recently considered, in the Law Society of Saskatchewan v. Abrametz1 decision, the applicable test to determine whether a delay is inordinate and constitutes an abuse of process that could lead to a stay of administrative proceedings. In this case, a Saskatchewan lawyer requested that the disciplinary proceedings against him be terminated due to a delay that he claimed was inordinate and constituted an abuse of process. The Law Society of Saskatchewan’s inquiry had begun six years before his application was filed. After analysis, the Supreme Court concluded that there was no abuse of process. In its study of the question of delay, the Supreme Court recalled that the analytical framework for determining whether a delay constitutes an abuse of process remains that which was developed by the Supreme Court in the Blencoe2 decision rendered twenty years earlier. In this way, the majority rejected the idea of bringing a test akin to the Jordan3 decision regarding inordinate delay into the context of administrative proceedings. Here is the analysis grid for determining whether a delay constitutes an abuse of process: The delay must be inordinate. Contextual factors must be considered, such as the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and issues in the case. Moreover, if the party itself caused or waived the delay, then it cannot amount to an abuse of process. The delay must have caused significant prejudice directly. It could, for example, be psychological harm, a damaged reputation, sustained media attention or loss of business. If these first two conditions are met, the delay in question constitutes an abuse of process when it is manifestly unfair to a party or otherwise brings the administration of justice into disrepute. Thus, once the abuse of process has been established, several remedies are possible depending on the seriousness of the harm suffered. These can range, in particular, from the reduction of the sanction and the ruling against the organization at fault to pay all costs to the stay of the proceedings. The members of Lavery’s Administrative Law team regularly represent various professional orders and remain available to advise you and answer your questions in connection with this new development in jurisprudence. 2022 SCC 29, July 8, 2022. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44. R v. Jordan, 2016 SCC 27.

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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 Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application.  In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.

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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 towards their users. The Court of Appeal’s reasoning is based on the following elements: where two doctors conclude on the need for confinement in an establishment, the user cannot be kept without his or her consent or the Court’s authorization for more than 48 hours; the hospital’s decision to make an application for confinement in an establishment does not constitute a simple blind or purely mechanical application of the conclusions presented in the psychiatric examinations conducted by the psychiatrists. It is the responsibility of the healthcare establishment in question to verify whether the legal obligations have been met prior to initiating the legal proceedings. Accordingly, the establishment must act with caution and transparency throughout this type of process, since the basic rights of the user subject to an application for confinement are at stake; the Civil Code of Québec, the Code of Civil Procedure and the Act Respecting the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others2impose very specific and strict provisions that must be complied with in connection with an application for confinement in an establishment; the establishment may likely be held liable if it neglects to verify and control compliance with the requisite conditions for confinement; failure to verify whether the two psychiatric examinations justifying the application for confinement comply with the legal requirements may also potentially engage the establishment’s civil liability; any incident or accident must be declared in good and due form in accordance with the Act respecting health services and social services3 to determine whether the establishment fulfilled its supervision and safety obligations as regards its confined users. It is therefore important to remember that healthcare establishments are obliged to demonstrate caution, transparency and verification when making an application for confinement and preparing such an application. G.D. v. Sir Mortimer B. Davis Jewish General Hospital, 2018 QCCA 379. CQLR, c. P-38.001. CQLR, c. S-4.2, Sec. 8 par.2 and 233.1.

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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 propriétaires (“AQPP”) petitioned the Superior Court of Quebec in an attempt to limit the distribution of itemized invoices only to individuals who are their customers. On February 26, 2018, the Court rejected each of the arguments made by the AQPP.1 New obligation On December 7, 2016, Bill 92, whose purpose was to extend the powers of the Régie de l’assurance maladie du Québec and to amend various legislative provisions,2 was passed. Another goal of this legislation was to amend the Act respecting prescription drug insurance3(“APDI”) and introduce section 8.1.1, which now requires owner pharmacists to provide an itemized invoice to the person paying when a prescription drug is sold or a pharmaceutical service is provided. The invoice must provide an itemized list of the following: -       The pharmacist’s professional fees for every service provided; -       The price paid by the basic plan for every medication or product supplied; -       The wholesaler’s profit margin; -       Any other information required by the relevant regulations. Pharmacists or wholesalers who violate this new provision face a fine of between $2,500 and $25,000.4 Consequences for individuals with private prescription drug insurance Controlling the cost of prescription drugs is a major issue when it comes to ensuring the sustainability of publicly funded prescription drug plans. This is why the Minister of Health and Social Services negotiates the prices and terms for prescription drugs and pharmaceutical supplies and services, based on the recommendations of the Régie de l’assurance maladie du Québec (“RAMQ”). The Minister is also responsible for negotiating with the AQPP to determine the fees that may be charged to patients covered by the public plan. There is also a regulation5 that requires pharmacists to provide the RAMQ with other information, including the cost of professional fees, when they request payment for a patient insured under the public plan.6 However, there is no similar oversight in respect of the fees that may be charged to individuals who have private prescription drug insurance, meaning that pharmacists have the discretion to charge fees that are different  from those negotiated by the Minister. These fees are added to the cost of the drugs. Positions of the parties The parties do not agree on the extent of pharmacists’ obligations regarding the itemized invoices. In the opinion of the AQPP, the obligation applies only to individuals (customers) who arrange for their own pharmaceutical services and does not include the insurers who pay. Meanwhile, the RAMQ believes that insurers that are required to pay must also be given a copy of the itemized invoices. The decision The Court did not agree with the AQPP’s arguments. In order to interpret section 8.1.1 APDI, the Court first examined the ordinary and grammatical meaning of the text and concluded that there was no difficulty, in the context of the provision requiring that itemized invoices be provided, in extending the obligation of pharmacists to include corporate persons. The Court rejected the AQPP’s second argument, which was that an insurance policy is a contract between the insurer and the client to which the pharmacist is not a party. A more thorough analysis of how insurance policies are applied, and how the claims made by pharmacists to third party payers work, may be more complex, since a client may believe that he or she is paying a portion of the invoice and the insurer is paying the other part. The Court then analyzed the object, spirit and purpose of the Act, recalling that the APDI is public social policy legislation, the purpose of which is to provide Quebeckers with reasonable and fair access to medications. More specifically, the aim of section 8.1.1 is to provide greater transparency so that payers are informed of the cost of medications and are then able to shop by comparing prices. The competition generated by this new provision means that in broad terms, it is easier to control costs, which is also beneficial for the viability of the prescription drug insurance plan. In the opinion of the Court, the transparency sought would be more likely to be achieved if more rather than fewer people received invoices, which is intrinsically more compatible with the purpose of the APDI. Finally, the Court considered the intention of the legislature by examining the legislative debates. In its opinion, there was no doubt as to the intention underlying the amendment, since the objectives of transparency, openness to competition and cost control were expressly stated in some of the remarks of the Minister of Health and Social Services during the consideration of Bill 92.7 The Court held that the new section 8.1.1 confirms the intention of the legislature to mandate that itemized invoices be provided to insurers that cover a portion of the payment, to enable them to perform a more effective cost comparison than an individual could. Conclusion Pharmacists must comply with section 8.1.1 APDI and provide members of the public, insurers and third-party payers with itemized invoices. Any failure to do so means that they will face fines.8 However, the debate is not over, because the AQPP has appealed this decision.9 Lavery will be watching this case closely and will keep you informed of developments.   Association québécoise des pharmaciens propriétaires v. Régie de l’assurance maladie du Québec, 2018 QCCS 806. An Act to extend the powers of the Régie de  l’assurance maladie du Québec, regulate commercial practices relating to prescription drugs and protect access to voluntary  termination of pregnancy services, Bill 92 (Assented to on December 7, 2016), 1st Sess., 41st Leg. (QC). CQLR c. A-29. Section 80.5 APDI. Regulation respecting forms and statements of fees under the Health Insurance Act, CQLR, c. A-29, r. 7. Id. s. 9. Supra, note 2. Supra, note 4. Association québécoise des pharmaciens propriétaires v. Régie de l'assurance maladie du Québec, 2018 QCCS 806, application for leave to appeal de bene esse, April 3, 2018, n°200-09-009737-187.  

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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 centre (“SMC”). In that decision, dated June 1, 2017, the Court of Appeal unanimously concluded that physicians’ right to associate was not violated by section 333.3 of the Act respecting health services and social services2 (“AHSSS”). The effect of that section is to prevent participating and non-participating physicians under Quebec’s public health insurance plan from practising together at an SMC. In accordance with its usual practice, the Supreme Court stated no reasons in its judgment on the leave application. However, based on that decision, the decision of the Court of Appeal can now be said to be settled law on this point. At this point, the law is clear on the question of physicians’ freedom of association: it is not absolute and physicians’ practice at SMCs remains subject to the statutory constraints imposed by the AHSSS. We would note that the applicants claimed that the restrictions imposed by the section in question and the provisions adopted under it infringed their fundamental rights and freedoms and should be declared to be unconstitutional. More specifically, the applicants argued that their right of association and their right to choose their colleagues were violated by those provisions. It must be noted that section 333.3 of the AHSSS provides that an SMC may be operated in only two forms: either exclusively by physicians who participate in the health insurance plan and are paid under the agreement entered into pursuant to section 19 of the Health Insurance Act3 or only by physicians who do not participate in that plan. The result is that participating physicians may not offer their services at an SMC where non-participating physicians practise. At trial, the Superior Court4 had concluded that the practice of medicine at an SMC was not protected by freedom of association. [TRANSLATION] [102] The guarantee of freedom of association given to members of a profession is not jeopardized by the mere fact that they are regulated by a statutory scheme. Physicians are free to join together, but they simply do not have the constitutional right to do so without being subject to the restrictions on SMCs established by the AHSSS. The Superior Court had further found that the effect of section 333.3 of the AHSSS is to regulate the SMC’s operating activity and not to prohibit, prevent or interfere with the formation of an association. Accordingly, a person cannot claim a constitutional right to do a job the way he or she wishes, outside of any organized framework; that is not protected by the charters. A physician may therefore not claim the right to create business relationships with the persons of his or her choice, for that reason. The Court of Appeal adopted the same position. As had the Superior Court, the Court of Appeal held: [TRANSLATION] [35] The appellants may not rely on freedom of association to claim absolute and unconditional freedom to associate as they choose and to practise medicine on the terms that suit them, on the ground that they want to practise medicine with others ….5 The Court of Appeal therefore adopted the reasons stated by the trial judge and unanimously held that the impugned provisions did not violate freedom of association. Physicians may choose their status and associate for the purpose of practising medicine on the terms set out in section 333.3 of the AHSSS but may not claim a constitutional right to do so as they wish.   Fédération des médecins spécialistes du Québec v. Bolduc 2017 QCCA 860 CQLR, c. S-4.2 CQLR, c. A-29 Fédération des médecins spécialistes du Québec v. Bolduc 2015 QCCS 2680 Supra, note 1    

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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 were seeking to have section 333.3 of the Act respecting Health Services and Social Services2 (“ARHSSS”), which prevents physicians who participate in the health insurance regime from practicing together with physicians who do not in a specialized medical centre (“SMC“) declared null and void. The plaintiffs were maintaining that the restrictions imposed on them by the above referenced section and related sections undermined their fundamental rights and liberties and should be declared unconstitutional. More precisely, the plaintiffs were arguing that their right of association and to choose colleagues of their choice was violated by these provisions. It must be noted that section 333.3 ARHSSS provides that a SMC can only be operated under two forms, namely, either exclusively by physicians who participate in the health insurance regime and are compensated on the basis of the agreement entered into pursuant to section 9 of the Health Insurance Act3, or exclusively by physicians who do not participate in the regime. This provision results in participating physicians not being allowed to offer their services in a SMC where non participating physicians practice. In the first instance, the Superior Court4 had concluded that the practice of medicine in a SMC was not protected by freedom of association. [Translation]“[102] The guarantee of freedom of association conferred on members of a profession is not compromised only because they are governed by a legislative regime. Physicians are free to associate, but they simply have not the constitutional right to do so without being subject to the restrictions on SMCs established pursuant to the ARHSSS.” Furthermore, the Superior Court had noted that section 333.3 ARHSSS regulates the functioning of SMCs but does not prohibit or hinder the establishment of an association, so a person cannot claim the constitutional right to work as he or she pleases, outside of any organized framework, which is not protected under the charters. Accordingly, a physician cannot claim the right to establish business relations with persons of his or her choice for the same reason. The Court of Appeal took the same stance. As the Superior Court did, it acknowledged that: [Translation]“[35] The appellants cannot, under the cover of freedom of association, claim absolute and unconditional liberty to associate as they please and practice medicine under the conditions of exercise which suit them on the grounds that they wish to practice medicine with others […]5. The Court of Appeal thus agreed with the reasons of the trial judge and unanimously considered that the contested provisions do not violate the liberty of association. Physicians can choose their status and associate with others to practice medecine according to the terms set out in section 333.3 ARHSSS without being able to claim an absolute right to do so as they wish, without complying with the legal provisions governing SMCs. Fédération des médecins spécialistes du Québec c. Bolduc 2017 QCCA 860. CQLR, c. S-4.2. CQLR, c. A-29. Fédération des médecins spécialistes du Québec c. Bolduc 2015 QCCS 2680. See above, note 1.

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  • Authorization of care and placement: the Québec Court of Appeal rules on alternative therapies, the duration of orders and provisional enforcement notwithstanding appeal

    On February 17, 2017, the Québec Court of Appeal1 upheld a decision of the Superior Court of Québec granting an application for authorization of care presented by the Centre intégré de santé et de services sociaux du Bas-Saint-Laurent. In this case, the patient attempted to assert the following grounds of appeal, each of which were unanimously dismissed by the Court of Appeal. First, the patient argued that the judge in first instance could not conclude that there had been a categorical refusal by the patient without first ensuring that he had received all the necessary information to make a free and informed decision. Moreover, the duration of the order obtained had to be as short as possible. Finally, based on the decision in M.M.Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M.2 the immediate enforcement of the order ought not to have been ordered. In this case, it was admitted that only the treatment that was initially planned had been considered and discussed with the patient, and he had not been provided with any additional explanation with respect to the proposed second and third alternative treatments. However, during the hearing before the Superior Court, the treating psychiatrist provided the Court with explanations regarding the alternative treatments. On this point, the Court of Appeal found that the explanations provided during the hearing met the requirements and that the patient had had the opportunity to request an adjournment of the hearing to obtain additional information, which he had not done. Therefore, while the information discussed with the patient regarding the alternative treatments being considered was incomplete, the Court of Appeal held that the judge in first instance could infer that there had been a categorical refusal by the patient, because it was clear that any discussion with him about medication was doomed to fail. In addition, the Court of Appeal took the opportunity to distinguish an authorization of care which is purely preventative in nature from the presentation of a full plan of care which includes alternative therapies based on the evolution of the patient’s specific situation. The Court noted that there is a real difficulty in determining which medication is more suitable for treating a patient. The difficulty is, in fact, compounded where the patient refuses to grant access to his medical files, therefore resulting in a lack of information on the medicinal trials attempted in the past. Regarding the duration of the care order, the Court noted that the D.A.case3 did not stand for the proposition that the duration of such an order must be as short as possible, but rather, [translation] “[…] the shortest possible duration that is reasonably feasible 4 and, in the case of F.D.5, the Court instead defined the duration as [translation] “a sufficient period to ensure that the treatment produces the beneficial effects that are expected.”6 For these reasons, the Court did not modify the duration of the order set by the Superior Court at three years, particularly in light of the complex and resistant nature of the illness, as well as the patient’s lack of diligence in taking his medication. In closing, the Court of Appeal noted that, in matters involving care orders, immediate enforcement must be explicitly requested, and respect for the dignity of the patient requires that there be proof in each case of a grave and imminent risk to the patient’s health for such an order can be issued. However, in fact, the Court found that this burden had been met because any delay in administering the medication was likely to increase the patient’s resistance to the proposed treatment plan.   C.R. c. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent, 2017 QCCA 328. Centre intégré de santé et de services sociaux du Bas-Saint-Laurent c. M.M., 2016 QCCS 5572. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734. Ibid., para. 31. F.D. c. Centre universitaire de santé McGill (Hôpital Royal-Victoria), 2015 QCCA 1139. Ibid., para. 54.

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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 for contesting the application. First, he argued that the refusal of the first instance judge to grant the patient’s request for an adjournment deprived him of his right to present expert evidence, thereby denying his right to a full answer and defence. Next, the patient claimed that the conditions prescribed by the legislation and case law for granting the CISSS’s application had not been met. Finally, he submitted that the duration of the order obtained was excessive and should be reduced to one year. As in the case of F.D. c. Centre universitaire de santé McGill,2 the Court held that the decision of whether or not to postpone a hearing is a matter of case management. The Court of Appeal must show great deference to the judge hearing the matter, who has broad discretionary powers to ensure the proper conduct of the proceeding of which they are seized.3 Therefore, a decision on a request for an adjournment can only be overturned if it is unreasonable given the circumstances of the case and if it is contrary to the best interests of justice.4 In this case, the patient, who at the time, was being held at the St-Jérôme Hospital, had already waited several months for a hearing before the Review Board for Mental Disorder (“RBMD”) at the time the CISSS filed its application for authorization of care with the Superior Court. Moreover, due to the patient’s level of agitation, it was necessary to adjourn the hearing before the RBMD and to keep the patient in detention until a decision was made by the Superior Court on the application for authorization of care, which was presentable on May 19, 2016. On that date, the patient made an initial request for an adjournment so that he could retain a lawyer, which was granted. Even at that time, the Court noted that the matter was an urgent one — to ensure the patient’s rights were respected. On May 26th, the Court adjourned the file for a second time and set a date for a hearing on the merits for July 21st, which was agreed to by the parties. Even before the file was heard, the patient’s lawyer asked that the case be postponed for a third time on the grounds that the psychologist he wanted to call as a witness was not available, without providing more information as to whether another expert could be called. After suggesting a one week adjournment, which was also refused by the patient’s lawyer, the first instance judge dismissed the third request for a postponement. In this context, the Court of Appeal held that this decision was not unreasonable, noting that applications dealing with personal integrity take priority over all others,5 which is indicative of their inherent urgency. Indeed, the Court stated as follows: [translation] “files dealing with the integrity of persons must proceed expeditiously and everyone is required to cooperate to this end, including the party who is the subject of the application”.6 Here, the urgency was even greater because the patient was being kept in detention at the St-Jérôme Hospital pending his hearing before the RBMD. Furthermore, the patient’s lawyer had not facilitated the progress of the patient’s file and admitted that he had only contacted one expert. The Court held that the context of an application for an adjournment requires more details from the person seeking it, who cannot simply satisfy himself by saying that other unidentified people could potentially be contacted, without providing more details. In short, the Court held that this application for a postponement was dilatory in nature. As to whether the Superior Court erred in granting the CISSS’s application for authorization of care, the Court of Appeal answered no. One could not necessarily conclude, based on the fact that the judge’s judgment was rather short, that he had ignored the criteria set out in the case law in his analysis. In his assessment of the criteria, the judge committed no error in law in accepting the expert’s testimony, which was in fact largely based on hearsay. Citing the authors, Royer and Lavallée,7 the Court held that the case law created an exception to the rule against hearsay in expert evidence in cases involving necessity and convenience. Expert witnesses are therefore permitted to provide an opinion based on facts that they have gathered out of court without requiring that such facts be established by evidence in court in order to add opinion probative value to their opinion. This was the sense in which the Court held that such evidence is admissible and relevant. Despite the appellant’s request to reduce the duration of the order to two years, the Court of Appeal kept the duration of the treatment at three years, noting that the time period requested in this type of file cannot be set based on general standards, but must instead be assessed and personalized according to the specific situation of each patient. Furthermore, the Court pointed out that there are two review mechanisms in such matters, namely, the bi-annual review by the council of physicians, dentists and pharmacists of the particular institution, and the review provided in article 322 of the Code of Civil Procedure, which permits the Superior Court to reassess a decision at any time upon the presentation of new facts. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734. F.D. c. Centre universitaire de santé McGill (Hôpital Royal Victoria), 2015 QCCA 1139. Ibid., para. 30. Code of Civil Procedure, CQLR, c. C-25.01, art. 9, para. 3, and 17-20 (hereinafter the “C.C.P.”). Art. 395 C.C.P. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, supra, note 1, para. 15. Jean-Claude Royer, La preuve civile, 4th ed., by Jean-Claude Royer and Sophie Lavallée, Cowansville, Éditions Yvon Blais, 2008, p. 339.

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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 hospital. Essentially, the patient was claiming that the Douglas’s failure to serve a notice identical to the one prescribed by article 393, paragraph 2 of the Code of Civil Procedure2 along with the application seeking his hospitalization and treatment was fatal to the application. According to the patient, this mistake resulted with the proceedings being undertaken by the Douglas, necessarily ensuing in an invalid judgment. The notice referred to in article 393, para. 2 is a new legal requirement, resulting from the entry into force of Quebec’s new Code of Civil Procedure. Its purpose is to remind respondents of their rights, including their right to legal representation. Using a textual interpretation approach, the Court analyzed the terms “conforme au” and “in keeping with”, and found that the notice must be similar to the model notice established by the Minister of Justice, but not necessarily identical. The Court added that if the notice needed to be identical, the legislator would have said so in unequivocal terms. The Court held that in order to be in keeping with the provision, the notice must, in substance, meet the objective pursued by the legislator. That objective is to inform vulnerable people of their rights to enable them to exercise those rights and be heard. Thus, the notice is a protective procedural requirement and is of public order, and only the person in favour of whom it has been established can waive the notice. The notice sent to the patient in this case made reference to his right to be heard and to be represented by a lawyer, but it did not state that any judgment ultimately rendered in the matter could be appealed. Nonetheless, the Court found that the type of objection made by the patient was a preliminary objection, which should have been made earlier. Furthermore, since the patient was heard at the hearing in the Superior Court, it would not have been appropriate to allow the patient to invoke this procedural irregularity at this subsequent stage. N.C. c. Institut universitaire en santé mentale Douglas, 2016 QCCA 856. JUSTICE QUÉBEC. « Avis accompagnant une demande concernant un majeur ou un mineur de 14 ans et plus qui touche son intégrité, son état ou sa capacité : Demande présentée devant le tribunal », (consulted June 3, 2016). The English version of the form, “Notice accompanying an application to the court relating to the personal integrity, status or capacity of a minor 14 years of age or older”, (consulted June 28, 2016).

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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 Dispensing Opticians), does not violate the Optometry Act 2 (“OA”) or, by necessary extension, the Dispensing Opticians Act.3 This decision was the result of an appeal from a judgment issued on December 3, 20144 by the Superior Court, in which the Superior Court reached the same conclusion as the Court of Appeal. The facts in this case were as follows: Coastal Contacts Inc. (“Coastal”), now carrying on business as Clearly, is a company based in Vancouver with no establishment in Quebec, which sells ophthalmic lenses through its websites to purchasers in many Canadian provinces, including Quebec. Its operations are subject to and compliant with the legislation in force in British Columbia.5 Quebec purchasers can either deal directly with Coastal or instead with website operators who redirect potential customer requests directly to Coastal. Gestion Progex (“Progex”), one of the respondents in the litigation, was one such website operator. In this case, the Order contended that Coastal and Progex violated the OA by claiming they had the right to perform a professional activity that is reserved for the members of the Order of Optometrists of Quebec, or by acting in a manner that gave the impression they were authorized to do so. Essentially, the Order alleged that the sale of ophthalmic lenses in Quebec was an act reserved for optometrists under sections 16 and 25 of the OA, and for dispensing opticians under section 8 of the Dispensing Opticians Act. The Order put forward two main arguments in support of its claims. First, it claimed that section 16 of the OA should be read as follows: [translation] “The practice of optometry is an act which […] deals with […] the sale of ophthalmic lenses.” Based on this interpretation, and despite the fact that, according to the general rules of law, the contract was concluded in British Columbia, section 16 had been infringed because Coastal’s actions, including the placing of orders, payment, confirmation of the order, and delivery of the ophthalmic lenses, were performed in Quebec. On this point, the Court found that section 16 does not allow the sale of ophthalmic lenses to be broken down into various separate tangible or intangible acts so as to include them in the exclusive area of practice of optometrists. Secondly, the Order argued that the term “sale” used in section 16 of the OA should be interpreted more broadly than when it is used in the Civil Code of Québec. It contended that this broadening of the concept of “sale” was justified on the basis of the primary mission of the Order, which is to ensure the protection of the public. Therefore, according to the Order, the term “sale” must allow for the regulation of any conduct [translation] “[…] consisting of controlling the distribution of a regulated product to the public […]”.6 After reviewing the decisions in Eaton7, Celgene Corp8 and Meditrust 9, the Court held that it could not accept the interpretation put forward by the Order. The Court observed that the only act attributable to Coastal and which took place in Quebec was the delivery of the ophthalmic lenses, since the other acts identified by the Order related more to the freedom of action of the purchaser, over which the Order has no jurisdiction. As the Superior Court had also noted in a case between the Order of Optometrists and the Order of Dispensing Opticians,10 the Court of Appeal stated that the simple delivery of ophthalmic lenses is only incidental to, and not an inherent component of, the sale. In addition, the Court found that lenses are not a product whose manufacture, supply or sale are so regulated that this would justify a broad interpretation of the monopoly on sales claimed by the Order for the benefit of its members. Moreover, such an interpretation would be inconsistent with the principle that statutes which create professional monopolies should be interpreted narrowly. Following its analysis, the Court therefore held that [translation] “the mere delivery of ophthalmic lenses in Quebec […] cannot constitute either a violation of section 16 or the first paragraph of section 25, or the illegal exercise of optometry in Quebec.” 11 In light of this conclusion, the Court found that it was not necessary for it to rule on the territorial scope of section 16 of the OA. However, it reiterated the recognized legal principle that, in the absence of a contrary provision, whether express or implied, one must assume that the author of the OA intended it to apply only to individuals, places, actions and events located within the territory of Quebec. Coastal was represented in this file by members of Lavery’s Health law group. Lavery will keep you informed of any new developments in this case. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2016 QCCA 837. Optometry Act, CQLR, c. O-7. Dispensing Opticians Act, CQLR, c. O-6. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2014 QCCS 5886. Health Professions Act, [RSBC 1996] Chapter 183; Optometrists Regulation, B.C. Reg. 200/2012; Opticians Regulation, B.C. Reg. 118/2010. Excerpt from the factum of the Order, cited in para. [28] of the decision. Association pharmaceutique de la province de Québec c. T. Eaton Co. Ltd., (1931) 50 B.R. 482. Celgene Corp c. Canada (Attorney General), [2011] 1 S.C.R. 3. Ordre des pharmaciens du Québec c. Meditrust Pharmacy Services Inc., [1994] R.J.Q. 2833 (C.A.) (authorization for leave to appeal dismissed by the Supreme Court, [1995] 2 S.C.R. ix). Ordre des opticiens d’ordonnances du Québec c. Ordre des optométristes du Québec, 2013 QCCS 1532. Ordre des optométristes du Québec c. Coastal Contacts Inc., supra, note 1, cited in para. [71] of the decision.

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  • Honesty of financial advisors and discretion of the Autorité des marchés financiers: the Québec Court of Appeal rules

    In a decision issued last May 20,1 the Québec Court of Appeal affirmed a judgment2 of the Superior Court of Québec rendered on October 28, 2013, which dismissed the action in damages for more than $7 million brought by a former representative in insurance of persons and in group savings plan brokerage, Mr. Alan Murphy, against the Autorité des marchés financiers (“AMF”). Facts Mr. Murphy was convicted in 2007 by the Disciplinary Committee of the Chambre de la sécurité financière of 32 charges,3his registration was permanently cancelled, as well as being temporarily cancelled for three years and one year, in respect of his areas of practice, and he was fined a total of $20,000. He then obtained a stay of both the permanent cancellation and the payment of the fines.4 Upon review by the Court of Québec, his sentence was reduced to a temporary cancellation for one year as well as the payment of a $12,000 fine.5 Despite the revocation of his certificate and the numerous notices from the AMF, Mr. Murphy continued acting as a representative, thereby significantly worsening his disciplinary record. Upon the expiry of the period during which his registration was temporarily cancelled, the AMF refused to renew Mr. Murphy’s certificate of practice. Claiming that in doing so the AMF had acted excessively, unreasonably and contrary to the requirements of good faith by multiplying the administrative obstacles, inspections and investigations against him, he sued the AMF in the Superior Court, contending that their actions demonstrated the bad faith required to substantiate a claim for $7 million in damages. Among other things, Mr. Murphy cited the judgment of the Court of Québec which had changed the sanction imposed on him and criticized the AMF. In response, the AMF argued that its refusal to issue a new certificate to Mr. Murphy was justified because he lacked the necessary degree of honesty to practise as a representative in insurance of persons and in group savings plan brokerage. Essentially, the issue raised was whether the AMF was protected by the relative immunity conferred on it for acts performed in good faith in the exercise of its functions, as provided in section 32 of the Act respecting the Autorité des marchés financiers.6 Judgment of the Court of Appeal Firstly, the Court stated that the clause protecting the AMF is comparable to the clause that protects the Quebec professional orders. It then cited the leading decision of the Supreme Court of Canada on relative immunity clauses, the Finney case,7 which states that bad faith includes, among other things, intentional fault, which can constitute an abuse of power. This concept also includes serious carelessness or recklessness which “implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed.”8 Next, to determine whether Mr. Murphy had the necessary honesty to carry on his practice as an advisor in group insurance, the Court considered the numerous decisions which the AMF had rendered against him. It should be noted that Mr. Murphy took all the measures available to him to contest9 the decisions rendered against him, while choosing nonetheless to continue practising his profession, despite the fact he no longer had the certificate authorizing him to practice. As a result, several penal complaints10 were also lodged against him. The Court of Appeal found that the discretionary power conferred on the AMF under section 220 of the Act respecting the distribution of financial products and services11 (“ADFPS”) to assess the degree of honesty of persons applying for authorization to practise as a financial advisor, and to issue certificates based thereon, is within the exclusive jurisdiction of the AMF. The fact that Mr. Murphy had illegally engaged in activities reserved for representatives was a sufficient ground which allowed the AMF to conclude that he lacked a sufficient degree of honesty pursuant to sections 219 and 220 of the ADFPS. The Court found that the AMF had adequately assessed Mr. Murphy’s lack of honesty in refusing to issue his certificate. Accordingly, the Court of Appeal held that the AMF benefited from the immunity conferred by section 32 of the Act respecting the Autorité des marchés financiers against the action instituted by Mr. Murphy. It therefore upheld the judgment of the Superior Court dismissing his action. Murphy c. Autorité des marchés financiers, 2016 QCCA 878. Murphy c. Autorité des marchés financiers, 2013 QCCS 5764. Rioux c. Murphy, June 12, 2007, No. CD00-0404. Murphy c. Chambre de la sécurité financière, 2007 QCCQ 7950. Murphy c. Chambre de la sécurité financière, 2008 QCCQ 5427; Murphy c. Autorité des marchés financiers, 2010 QCCA 1078; application for leave to appeal to the Supreme Court of Canada dismissed (S.C. Can., 2011-01-27) 33860. Act respecting the Autorité des marchés financiers, CQLR, c. A-33.2. Finney v. Barreau du Québec, [2004] 2 S.C.R. 17. Ibid., para. 40. 2008-PDIS-0086 (July 25, 2008); 2008-DIST-0090 (September 19, 2008); 2009-PDIS- 0190 (July 23, 2009); Murphy c. Albert, 2009 QCCS 6366; Murphy c. Albert, 2011 QCCA 1147; 2011-PDIS-0249 (October 7, 2011); number unknown (January 10, 2012). Autorité des marchés financiers c. Murphy, 2010 QCCQ 11692; Murphy c. Autorité des marchés financiers, 2011 QCCS 3510; Murphy c. Autorité des marchés financiers, 2011 QCCA 1688; Autorité des marchés financiers c. Murphy, 2016 QCCQ 2992. CQLR, c. D-9.2.

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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 of these privileges. Firstly, it should be noted that the applicant's clinical competence was not questioned in this case. Rather, it was his behaviour in relation with teaching that was problematic. In support of its decision, the board of directors of the hospital noted that the physician had breached his duty to provide supervision, guidance and availability to residents and external physicians to such an extent that the board had been forced to relieve him of his teaching duties and assign him to other functions. For several years prior to this, the physician had ceased to have the requisite skills and abilities to practise his profession in a university hospital centre, despite the institution’s numerous attempts to intervene and rectify the situation. The debate before the ATQ was centered on the interpretation of section 238, paragraph 4, of the Act Respecting Health Services and Social Services,2 namely the “criteria of qualifications, scientific competence or conduct of the physician”, with respect to “the specific requirements of the institution, and fulfilment of the obligations attached to the enjoyment of the privileges granted.” The ATQ decided that the decision not to renew the status and privileges was well founded and ought to be upheld given this physician’s obvious lack of interest in teaching, which was an essential component of his duties. Such a lack of interest was therefore found to be unacceptable considering the obligations associated with the enjoyment of the privileges of a physician practising in a university hospital centre. In an attempt to have the hospital’s decision annuled, the applicant alleged that the fact that his privileges had been renewed successively over the years showed that he must have been meeting the teaching requirements. However, the ATQ disagreed. Indeed, the evidence showed that, since 2006, despite the renewal of his privileges, this physician had received several notices from his superiors reminding him to fulfill his teaching obligations. According to the ATQ, these renewals of privileges ought rather to be seen as opportunities that were being afforded to the physician to remedy the shortcomings identified over the years. In its decision, the ATQ noted that the physician had always been informed of the complaints made against him relating to teaching, but that he had chosen to ignore them and deny their merits, and had refused to act upon the recommendations that were made to him, while visibly trying to blame others. Thus, despite having been given numerous chances, the physician had shown very little improvement or interest, giving the institution no other option but to decline his status and privilege renewal. In light of the evidence presented before the tribunal, particularly the contract of affiliation between the hospital centre and the university, it was clear that teaching was at the very heart of this institution’s medical activities and was a distinctive requirement of this university hospital centre. In this context, the ATQ agreed that such an obligation could be attached to the enjoyment of a physician’s status and privileges. Paraphrasing of its holding in the M.G. v. Centre Hospitalier A case,3, lthe ATQ held that to reinstate the physician’s privileges would be to restore him to a position in which it had been shown many times that he was incapable of fulfilling his teaching obligations because of his own choices.4 _________________________________________ 1 R.A. v. Centre Hospitalier A, 2015 QCTAQ 041038. 2 CQLR, c. S-4.2. 3 2012 QCTAQ 031173. 4 Id., par. 461.

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