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Legal Information/ Legal Briefs

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.


 


Legal Briefs 2010

  Month
Number
Legal brief
November
 18
Can I serve my sentence in the community? This hypelink opens a PDF file in a new window.

THE FACTS

After a night of partying during which the accused consumed some alcohol, the accused, an 18-year-old, decided to drive his friends home. He only had seven weeks of experience as a licensed driver and knew that his vehicle was not in good condition. According to the evidence, he dr
more
November
 17
Should you prepare a mandate in the event of incapacity? This hypelink opens a PDF file in a new window.
With our aging population and increasing life span, there is, unfortunately, a very real possibility that we will suffer an illness or accident. Should you prepare a mandate in the event of incapacity? more
October
 16
Do I have the right to see my grandchildren?This hypelink opens a PDF file in a new window.
I would like to see my grandchildren, but the mother of the children is against it. What are my recourses as a grandparent? more
October
 15
Am I entitled to a disability pensionThis hypelink opens a PDF file in a new window.
I have had serious health problems for years and I’m not 60 years old yet. I am unable to work. Am I entitled to a disability pension?

THE FACTS

The applicant appealed a review decision rendered by the Régie des rentes du Québec, in October 2008, refusing to grant her a disability pension within the meaning of section 95 of the Act respecting the Québec Pension Plan.


In July 2007, the Régie had received a claim for disability benefits from the applicant who was then 53 years old. She had stopped working on May 31, 1999 due to health reasons.


The medical report in support of her application had been signed by a general practitioner in August 2007. The physician had declared that the applicant suffered from severe fibromyalgia accompanied by tension headaches and tinnitus, a chronic condition. According to this physician, the applicant would not be able to eventually go back to work or take on any other paying work.

THE ISSUE

Did the applicant satisfy the definition of disability within the meaning of the Act respecting the Québec Pension Plan which applies to persons under the age of 60, as such term is defined in section 95 of the said Act:

“A person shall be considered to be disabled only if the Board declares him to be suffering from a severe and prolonged mental or physical disability. A disability is severe only if by reason thereof the person is incapable regularly of pursuing any substantially gainful occupation.
[…]

A disability is prolonged only if it is likely to result in death or to be of indefinite duration.”



THE DECISION

The Tribunal allowed the recourse and overturned the review decision rendered on October 31, 2008. It recognized that the applicant was disabled within the meaning of section 95 of the Act respecting the Québec Pension Plan and it declared that the disability should be recognized as of one year prior to the date of the application and that the pension was payable to her as of four months after the disability, in accordance with the Act.

THE GROUNDS

The applicant and her husband testified at the hearing, stating that the applicant had suffered pain for more than 25 years. Her condition had deteriorated over the past 10 to 12 years, notwithstanding the fact that she had stopped working in 1999.


It was not contested that the applicant had fibromyalgia or that this was a condition liable to result in a long-term disability. The parties clashed on the conclusion to the effect that the applicant’s disability was not serious enough to prevent her from doing any kind of work.


In matters of disability, the evidence must be of a medical nature and testimony must be taken into account to assess the entirety of the applicant’s condition as regards the perception she has of her condition, her motivation in seeking out relief and the extent to which she has sought out relief.


The medical evidence was straightforward: The applicant had been monitored since 1990 and the diagnosis of fibromyalgia had been made as of 1995. There were no other clinical opinions in the file contradicting that of the applicant’s general physician.


As for the applicant, she had delivered a very clear message. She showed an uncommon sense of self-awareness. She demonstrated a high degree of autonomy in terms of managing her health problems and being vigilant and pro-active in seeking out solutions. The Tribunal found the applicant’s testimony to be credible. It was also conclusive.




Reference
D.N. v Régie des rentes du Québec, Administrative Tribunal of Québec (A.T.Q.) SAS-Q-150927-0811, 2009 QCTAQ 10832, October 28, 2009; Administrative judges: Jules Brodeur and Daniel Lagueux. (www.jugements.qc.ca)


Legal brief *
October  2010
Number  15
Text prepared by   Le jugement dont il est question dans cette chronique a été rendu en fonction des éléments de preuves soumis au tribunal. Chaque situation est particulière. Dans le doute, nous vous suggérons de consulter un avocat de l’aide juridique. / The jugement discussed in this article was rendered based on the evidence submitted to the court. Each situation is unique. If in doubt, we suggest you consult a legal aid lawyer.
Update by   Commission des services juridiques
* 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.
September
 14
I want to have my father's will annulledThis hypelink opens a PDF file in a new window.
Your father informs you that you are one of the legatees named in his will as an heir. Shortly before his death, he changes his will and bequeaths all his property to someone else. Can you have this will, which you believe is unfair, annulled? more
September
 13
I have to resiliate my lease due to my loss of autonony This hypelink opens a PDF file in a new window.
I have lost my autonomy and I have a medical document confirming that I have to move into premises adapted to my needs. What should I do? more
June
 12
My right to privacy has been violatedThis hypelink opens a PDF file in a new window.

THE FACTS

While helping lift an obese patient from her chair, a worker felt a fierce burning sensation and shooting pain in her back, on the left side, and experienced difficulty lifting her left arm. In May 2005 she was diagnosed with a cervicodorsal sprain which was consolidated in Nove more

June
 11
My property has been seizedThis hypelink opens a PDF file in a new window.
As a result of unpaid debts, can a creditor seize all the moveable property in a residence? more
May
 10
A court has ordered that I be placed in a detoxification centre This hypelink opens a PDF file in a new window.
In principle, every person is free to accept or refuse to submit to health care. Exceptionally, a hospital centre may go to court to compel an unfit person to receive treatment despite the person’s categorical refusal, that is, against the person’s will. When dealing with treatment against a person’ more
May
 09
A police officer has asked my child for his version of the facts This hypelink opens a PDF file in a new window.
A youngster has been arrested and the police officer has asked him for his version of the facts. What are his rights? more
April
 08
I am not dangerous: When will my confinement in an institution end? This hypelink opens a PDF file in a new window.
An individual suffering from mental illness may be placed in confinement in a health care institution if he presents a danger to himself or to others due to his mental state. However, if the individual in question opposes the confinement, a court authorization is required. In order to obtain such an more
April
 07
My youngster is guilty of roberyThis hypelink opens a PDF file in a new window.
An offender is convicted of robbery. What is the best judicial decision for this youngster? more
March
 06
For how long can I be obliged to remain in a residential facility? This hypelink opens a PDF file in a new window.
What is the maximum duration of a residential placement order forcing a person to live in a residential facility? more
March
 05
I refuse to let my child have a blood transfusion This hypelink opens a PDF file in a new window.
Can parents refuse to let a doctor give a blood transfusion to their minor child on religious grounds? more
February
 04
Is my confinement in an institution necessary? Am I dangerous? This hypelink opens a PDF file in a new window.
In matters of confinement in an institution, judges are called upon to decide on a person’s dangerousness to himself or to others due to his mental state. Dangerousness is the only criterion on which a court must base itself in order to confine an individual in a hospital against his will. How do ju more
Februay
 03
I lost my job due to family obligations This hypelink opens a PDF file in a new window.
You leave your job to go to Guinea to stay with your father who is seriously ill. In the meantime, you learn that he has died and you go to his funeral in Guinea, where you take care of your mother who is also seriously ill. Upon your return, you are refused employment insurance benefits on the grou more
January
 02
Can wearing tinted eye glasses at night reduce vision quality? This hypelink opens a PDF file in a new window.

THE FACTS

On May 24, 2007, at approximately 9:42 p.m., an individual was driving his automobile on an unlit road while wearing black-tinted eye glasses. A police officer followed him for a while and stopped him. The individual claimed that his glasses made him look “cool”. The police offi more

January
 01
I live in a dwelling in low-rental housing and am frequently away from home This hypelink opens a PDF file in a new window.
You live in a dwelling in low-rental housing and are often away from home in order to visit your family and friends. Can the lessor ask for the resiliation of the lease due to the unoccupancy of the dwelling? more
 
© Commission des services juridiques Création: Diane Laurin - 2017