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  • The Superior Court of Québec rules on de facto spouses and the right to use a residence during legal proceedings

    In a judgment handed down on February 16, 2021, in a case involving former de facto spouses, the Superior Court dismissed an interlocutory injunction filed by the plaintiff seeking the eviction of the defendant from what had been their common residence. After having lived together in a de facto union for 32 years, the parties separated. The plaintiff, sole owner of the family residence, left the residence while the defendant continued to live there. The parties’ adult children were financially independent and no longer lived in the residence. After a few weeks of separation, the plaintiff decided to put the residence up for sale and asked the defendant to leave the residence in preparation for a buyer who had shown interest to take possession of it. The defendant refused, which led to the plaintiff’s application for an interlocutory injunction to evict the defendant from the residence. The defendant simultaneously instituted proceedings against the plaintiff for unjust enrichment. Prima facie case In the case of a mandatory interlocutory injunction, the burden of proof that the plaintiff must meet is what the Court describes as a “strong prima facie case.”01 One of the reasons for this is that there are few situations where a plaintiff will not obtain relief at a trial on the merits. TDhe significant consequences of a mandatory interlocutory injunction on the defendant do indeed require that the judge conduct such an analysis. In this regard, the plaintiff argued that he was the sole owner of the residence, as evidenced by the title. The defendant raised the issue of unjust enrichment resulting from the family obligations that she had had to bear, leaving her unable to work while the plaintiff was free to invest in his increasingly successful career. She also raised the financial arrangements that the parties had made during their life together. Defendant argued that since the beginning of their relationship, they had reached an agreement on the partition of accumulated assets. The defendant considered that the combining of the parties’ efforts and assets during their life together also applied to the residence from which the plaintiff was trying to evict her. According to the defendant, it had always been clear that she was a co-owner of the residence, although no title made mention of this. According to the Court, [translation] “the parties’ family arrangement as part of a long-term, traditional, de facto union”2 precluded the plaintiff’s claim to a unilateral right to make decisions about the family residence. Irreparable prejudice On the issue of irreparable prejudice, the Court found that it was not plausible that the residence would lose value simply because it could not be sold immediately. Moreover, should there be any prejudice, it could not be described as irreparable. On the contrary, for the Court, it was rather the defendant who would suffer serious and irreparable prejudice, and the sale of the house before the hearing on the merits would preclude her from proposing to acquire the plaintiff’s share in the house should the Court find that she was entitled to a portion of its value. Balance of convenience The Court concluded that the balance of convenience favoured the defendant. The only inconvenience for the plaintiff was a financial one. The inconvenience for the defendant, who has no assets or income and suffers from multiple sclerosis, would be much more serious, as she would have to move during winter, probably at a significant distance from the environment that she had become accustomed to living in for the past 30 years. Conclusion This Superior Court judgment dismissing the plaintiff’s injunction in the context of a de facto union will certainly be significant for the advancement of the rights of de facto spouses, as it allows a former de facto spouse without minor children to stay in a residence for which she has no title of ownership at the time of the interlocutory injunction. In 2013, the Supreme Court ruled on the much-publicized Eric and Lola case, and the majority opted to maintain the status quo; that is, no right to obtain support and no right to the partitioning of assets that a de facto spouse does not own.3 However, many de facto spouses may find themselves in precarious situations after a separation. What Laroche c. Couillard teaches is how important agreements made during de facto unions are, and that such agreements are valid even if the relationship ends. This decision on interlocutory injunction will certainly be useful for other former de facto spouses who find themselves in a similar situation after their separation. The residence that de facto spouses live in during their life together is often a substantial asset, and protecting it is advantageous. Thus, consulting a family law lawyer can help avoid ambiguous situations at the end of a relationship and protect the rights of the parties beforehand. Lavery’s Family, Estate and Personal Law team is at your disposal to assist you in your projects and in finding solutions to protect your rights.  We would be happy to discuss our legal service offerings with you to help you determine which one is best for you. R. v. Canadian Broadcasting Corp.,2018 SCC 5, para.  15. Laroche c. Couillard, 200-17-031680-200, February 16, 2021, para. 21. Quebec (Attorney General) v. A., 2013 SCC 5.; Caroline Harnois, “Eric and Lola: The Supreme Court rules on the rights of de facto spouses in Quebec” (2013), Lavery Lawyers – Publications

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  • Cyberattack: Superior Court dismisses application for authorization to institute a class action against Yahoo! Inc.

    The Superior Court of Québec dismissed an application for authorization to institute a class action against Yahoo! Inc.1 (hereinafter “Yahoo!”) seeking damages as a result of cyberattacks that compromised the confidentiality of user data. Context In September 2016, Yahoo! issued a press release announcing that nearly 500 million users were reportedly victims of a cyberattack in 2014. In December 2016, the company informed its users of another cyberattack that it claims took place in 2013. In February 2017, users were informed that the use of cookies apparently allowed a third party to access information contained in their accounts between 2015 and 2016. While a class action was brought in Ontario in December 2016, an application for authorization to institute a class action was filed in Québec the following month seeking compensation for users who were victims of one or more of these cyberattacks. The decision No arguable case After limiting the class to Québec residents whose information was lost and/or stolen between 2013 and 2019, the Court addressed the test set forth in paragraph 2 of article 575 of the Code of Civil Procedure. According to this criterion, the plaintiff must demonstrate that the alleged facts appear to justify the conclusions sought. The Court must distinguish factual allegations from arguments, opinions, unsupported inferences and hypotheses, as well as assertions that are implausible or false. This analysis is carried out in light of the plaintiff’s cause of action. In this case, the plaintiff had a Yahoo! email account. She alleged having suffered harm because her account may have been hacked during the 2013 cyberattack, although the nature of the compromised information is not yet known. She added that she suffered additional harm due to the “imminent” and “certainly impending” threat of identity theft and fraud resulting from the sale of her information on the black market and its use by criminals. She was also embarrassed because some of her friends received spam emails from her account in her name. As a result, she must now take steps to protect her personal and financial information. Building on the principles set out in the Sofio2 and Mustapha3 decisions, the Court reiterated that the demonstration of an alleged fault does not presuppose the existence of prejudice and that the latter must be serious and prolonged. Embarrassment and temporary inconveniences of an ordinary nature do not constitute compensable damages. Contrary to the allegations in the application, the Court considered that the plaintiff’s answers during her examination demonstrated that she has no reason to believe that she was a victim of identity theft or fraud, since she did not identify any suspicious charges and did not receive a poor credit report. In addition, she continued to use her Yahoo! account and admitted that she did not purchase any identity protection services, such as credit monitoring. Thus, the only prejudice the plaintiff suffered is the fact that she had to change her passwords for all of the accounts associated with her Yahoo! email address and the embarrassment she suffered because of the spam emails that were sent to her friends. On this point, the Court noted that none of the spam emails were filed into the Court record and that none of the recipients of the spam emails suffered harm. Consequently, the Court concluded that the plaintiff had not demonstrated the existence of an arguable cause. The Court distinguished the facts in this case from those in Zuckerman4 and Belley5, in which the plaintiffs had incurred expenses to protect their information or had been victims of fraud or identity theft. Inadequate representation Adequate representation implies that the representative plaintiff has a valid personal cause of action. However, a civil liability action requires the demonstration of a legal basis for the claim of damages, which was not achieved in this case. To summarize: It is not enough to claim the existence of a fault: damage must result therefrom. The notion of “compensable harm” must go beyond mere annoyance. Conclusion Legal action brought as a result of data breaches has increased exponentially in recent years. Cybercrime has become the second most common type of financial fraud. Any company that retains client data should be aware of the risks associated with cyberattacks and the potential lawsuits. To minimize risks, several measures can be implemented, such as adopting a response plan for cyberattacks, training employees and regularly updating security measures. For example, the PCI DSS (Payment Card Industry Data Security Standard) provides a detailed framework that allows companies to implement secure transaction processes. It is recommended that companies consult an IT specialist or hire an internal expert for guidance. It is also recommended that companies contact their insurers to verify their insurance policy coverage and, if necessary, obtain cyber risk insurance coverage. For class action practitioners, this decision once again demonstrates the importance of bearing in mind the impact that the examination of the representative plaintiff could have on the outcome of a case.   Bourbonnière v. Yahoo! Inc., 2019 QCCS 2624. Sofio c. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27. Zukerman v. Target Corporation, 2015 QCCA 1809. Belley v. TD Auto Finance Services Inc./Services de financement auto TD inc., 2015 QCCS 168/2015 QCCA 1255.

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