Legal Briefs

Until 2010, these legal briefs provide examples of judgments pertaining to everyday situations. Beginning in 2012, they deal with various topics of general interest, such as rental issues, family law, human rights, civil liability, insurance, dealings between spouses and social aid. They are intended to inform and to prevent undesirable situations.

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Legal Briefs 2013

  Month

Number

Legal brief

December

 17

Same-sex spouses, a reality... know your rights!

MARRIAGE

In Québec, since March 19, 2004, it has been possible for same-sex couples to marry or enter into a civil union.

As a result, in the event of a separation or divorce, same-sex couples who are married or in a civil union benefit from the various types of protection provi more

November

 16

What is child pornography?

Perhaps you sometimes visit porn sites. So as not to commit an offence associated with child pornography, you must avoid accessing images or films that show a person who is or is depicted as being under the age of 18.

Child pornography is a crime that was added to the Criminal Code fai more

October

 15

HAS - Homologation assistance service for agreements

The HAS is intended for parties who wish, for whatever reason, to modify arrangements pertaining to child custody or access rights or to support involving a child or a child and a former spouse, where the parties have previously obtained a judgment with respect to child custody or support. Only peop more

September

 14

Why is social assistance forcing me to institute proceedings for support?

Marie is a single mother; Simon has been separated from his wife for five years; Paul has been divorced for a few years; Chantale is an 18-year-old who could not get along with her parents, left school and the city of Chicoutimi, where she was born, and moved to Montreal to look for work. All of the more

September

 13

How can a decision of the Régie du logement be executed?

Martin sued his landlord before the Régie du logement for damages and to force him to make repairs to his dwelling. After a lengthy legal battle, Martin obtained a judgment in his favour granting him $1,500 in damages.

Now, Martin is wondering what to do in order to collect the sums owed to h more

June

 12

Who will receive the Canada child tax benefit in the event of a breakup?

The Canada Child Tax Benefit (the “CCTB”) is a tax-free monthly payment made to eligible families to help them with the cost of raising children under the age of 18.

To be eligible for the CCTB, you must meet each of the following conditions:

1. You must live with the child and th more

June

 11

Can I be compensated by the IVAC and also sue my attacker?

Joëlle was the victim of a violent crime that caused her serious injuries, some of which will never heal. Her attacker was caught and she is therefore thinking about taking him to court in order to be compensated for the harm she suffered. In addition, Joëlle was informed by the investigators in cha more

May

 10

Misconduct and employment insurance

Section 30 of the Employment Insurance Act¹ stipulates that a person cannot receive employment insurance benefits if they lose their job because of their misconduct or if they voluntarily leave their job without just cause. The notion of misconduct has been defined in the case law over the years, because it is not defined in the act or the regulations.

Acts or omissions considered to be misconduct can be classified into five broad categories:

1) Illegal union activitiesFor example, this may involve participating in an illegal strike.

2) Absences from workThe fact that an employee is often late can constitute misconduct. The same is true of absences, if the employee does not inform the employer of the absence as soon as possible, does not give the employer reasons for his absence² or does not obtain the employer’s prior authorization to be absent or late.³

3) InsubordinationThis primarily involves an employee refusing to comply with the employer’s orders, instructions or rules, or disobeying them. For example, an employee who refuses to perform a task that usually forms part of his functions⁴ or refuses to work reasonable and properly paid overtime may be guilty of misconduct in certain circumstances.

4) Hostile conductEvery employee must act towards his employer, his colleagues, clients and the general public in such a manner as to avoid improper behaviour that may be perceived as an insult, harassment or provocation.

A lack of respect, rude behaviour, insolence, insults, threats and harassment may, if they constitute offensive behaviour that is incompatible with the performance of the functions for which their perpetrator was hired, constitute misconduct.

An assault obviously constitutes misconduct, unless the employee was provoked and had to defend himself.
5) Failure to comply with rules established by the employerThis may involve rules dealing with the following matters:

• clothing or appearance (wearing a uniform, hair length, etc.)
• safety (wearing protective eyewear or boots, etc.)
• consumption of alcohol⁵ or drugs⁶ (consuming alcohol on the work premises or coming to work drunk)
• serious professional lapses (sleeping on the job,⁷ using supplies for personal purposes, taking petty cash without authorization, etc.)
• the commission of a criminal offence, insofar as an essential condition of employment is no longer met.⁸

These are examples of the many possible situations that could be considered to be misconduct and exclude a claimant from receiving employment insurance benefits.

It should be noted that in order to constitute misconduct, the alleged act or omission must be wilful or deliberate or so reckless as to approach wilfulness.

The purpose of the provisions of the Employment Insurance Act is to provide financial support to employees who lose their job through no fault of their own and to encourage their reintegration into the job market.
Note: The decisions cited below are available on the website of the Federal Court of Appeal at: http://decisions.fca-caf.gc.ca/en/index.html.
¹ S.C. 1996, c. 23.
² Canada (Attorney General) v. Bergeron, 2011 FCA 284.
³ Canada (Attorney General) v. Caron, 2009 FCA 141.
⁴ Canada (Attorney General) v. Jolin, 2009 FCA 303.
⁵ Canada (Attorney General) v. Doucet, 2012 FCA 105.
⁶ Lepretre v. Canada (Attorney General), 2011 FCA 30.
⁷ Canada (Attorney General) v. Roberge, 2009 FCA 336.
⁸ Canada (Attorney General) v. Levesque, 2010 FCA 238.

Legal brief *
May  2013
Number  10
Text prepared by   Me Karine L. Ruel,avocate au bureau d’aide juridique de Montréal-Nord
 
* The information set out in this document is not a legal interpretation.
The masculine is used to designate persons solely in order to simplify the text.

May

 09

The obligation of support for spouses

Marie and Robert have been married for 25 years. During their marriage, Robert worked as an engineer in a well-known company and, on average, earned $150,000 a year. Marie stayed home to look after their three children and their home. During this time, Marie never held a paying job, because she was more

April

 08

Wasting of property : Consequences during the partition of the Family Patrimony

You have been married to Pierre for 20 years. You left him due to his gambling problem. He admitted to you that he was going to the Montreal Casino on a daily basis. Two months before your separation, you noticed that Pierre had withdrawn everything from his RRSP, an amount of $20,000. As for you, y more

April

 07

The IVAC says I’m the author of my own misfortune – What can I do?

Pierre-Olivier occasionally uses illegal drugs. One day, he asks a friend to get him some drugs for a party he is organizing at his home that weekend. During a meeting a few hours after the transaction, the two men get into a verbal argument about an old love feud that goes back several years. While more

March

 06

Repossession of the dwelling by the landlord

Marc and Claudia have been tenants in the same dwelling for the past 10 years. Two days ago, they received a notice of repossession of the dwelling from their landlord.

The landlord informed them that he will repossess their dwelling at the end of the lease, so his 18-year-old son, who is a f more

March

 05

I was injured at work - What should I do?

Nowadays, people are quite familiar with the program of the CSST (Commission de la santé et de la sécurité du travail) and know that they can claim benefits from this agency if they are injured at work. However, when filing an application, many people approach the process rather clumsily, both as re more

February

 04

Child support

Arthur and Marine had been living together for 5 years. They had two children, Philippe and Frédéric.

For some time, things between them had not been going well and they decided to separate. They therefore each found a new place to live and agreed that Marine would have custody of the childre more

February

 03

I am being refused CSST benefits because I allegedly have a 'pre-existing condition'... Do I have a recourse?

Brigitte had worked for the same employer for several years as a maintenance employee. She had never had health problems and even led a very active lifestyle. One morning, her employer asked her to clean premises that were particularly dirty after a party.

She and a co-worker began to clean t more

January

 02

My neighbours are too noisy.What are my rights?

You've been living for a short while in an apartment that seemed to be a peaceful haven when you visited the premises before signing the lease. Now, however, you are being disturbed by neighbours who have little respect for your peace and quiet. They turn up the music, even late at night, slam doors more

January

 01

Psychosocial assessments in family matters:Part of the Evidence

A psychosocial assessment is an assessment performed by a specialist in social sciences. It is a complete and unbiased assessment of the family and social situation of a child about whom there is a court dispute involving custody or visitation rights.

The purpose of the expert assessment is t more