Bye bye Law, Hello Germany

Some time ago, I moved to Germany with my family, and quit the Barreau du Québec so I’m officially not a lawyer anymore!

I have been learning German, and for fun made a bunch of little graphs about German that I have been posting on Twitter and will be posting here in the upcoming days.

Bonus: I don’t even need to change the website’s name!

Words! Graphs! Lexagraph!

Flowchart: Canadian Supreme Court Determines Whether Text Messages Are Still Private After Reaching Recipient’s Phone

Ever wondered what a Supreme Court judgment says, but did not have the courage to read through one?

Well you’re in luck, because I’ve diagrammed a recent Supreme Court of Canada judgment which determined whether Canadians had a reasonable expectation of privacy over SMSs that have reached the recipient’s phone.

In this case, police arrested two suspects and illegally searched their phones. This meant the evidence from each phone couldn’t be used against the phones’ owners. At trial, the prosecutor used, against one of the suspects, the copy of the SMSs recovered from the accomplice’s phone, arguing that the suspect couldn’t contest the illegal search of someone else’s phone. The case was appealed all the way up to the Supreme Court.

Some notes, if you’re not a lawyer:

Civil rights are all about limiting State interference in people’s lives. The Supreme Court often defines civil rights principles in the context of a criminal case, as it is the most common situation where people and the State collide. As such, civil rights are often decided on cases where the defendants are not the most sympathetic ones and it is possible that criminals will be set free.

Cases that reach the Supreme Court are often very complex. Even when the question is not that complex, the ultimate ruling often depends on a chain of arguments, where any link in the chain may break the whole case. In the case below, for example, from a technical point of view, the actual ruling on privacy of SMSs is an accessory to the bigger question of whether a piece of evidence is admissible in court. Yet the reason this case went all the way up to the Supreme Court is exactly on this specific point.

If you do read the full judgment, which I recommend you do (the majority ruling is only 82 of the 200 paragraphs), you’ll notice that the Supreme Court does not take civil rights lightly. On the contrary, it adopts a point of view that tends towards broadening, rather than restricting, privacy rights. The following quote illustrates this point of view:

To accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent such disclosure. “[T]he regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words”: Duarte, at p. 44.

How much notice should you get if you’re fired?

One of the most frequent type of “BTW, since you’re a lawyer” questions I get is about notice when someone gets fired.

It’s not exactly the most difficult question, although like anything in law, there’s a simple answer and a complicated one.

The simple answer, for Quebec, according to the Labour Standards Act (LSA), can be found in the table below, also available on the CNESST website:

Length of uninterrupted service Notice
3 months to one year One week
1 to 5 years 2 weeks
5 to 10 years 4 weeks
10 years or more 8 week

The complicated answer takes into account things like:

  • whether your employer is under federal or provincial jurisdiction (the Labour Standards Act only applies to employers under provincial jurisdiction, which excludes banks, for example, but not the Caisses Populaire Desjardins)
  • what position you held (the notices in the LSA doesn’t apply to upper management)
  • whether you were unionized
  • what kind of work you were doing (there is a quite technical list of excluded workers)
  • whether any other exception applies

to determine that you should have at least X weeks of notice, but maybe more, it’s hard to tell…

At any rate, I’ve made a flowchart that’s somewhere between the easy answer and the complicated one, which should cover most of the situations out there…

Flowchart showing the length of notice an employee should get in case of dismissal.

What’s a Family Patrimony?

Every married couple in Quebec has a family patrimony.

What it is doesn’t really matter until they divorce.

The infographic below tells you what goes in a family patrimony, and how you calculate its value when you divorce.

Please note that the whole section on the Family Patrimony in the Civil Code of Québec is much longer, and this infographic only shows a small portion of it.

You can read the actual text of the law here: Quebec Civil Code, articles 414 to 418.

Infographic on the rules of family patrimoniy division in Quebec law

Terms of service: not everything that is written is automatically valid

As a follow-up to my last post (from 4 years ago!), here’s the result of the eBay lawsuit, where two users were suing eBay for cancelling their auction, which had reached $98,000.

The ruling is from december last year (which goes to show how long it takes for a case to go to trial these days) and offers a really interesting look at how Quebec law approaches Terms of Services.

The case is pretty simple: plaintiffs put a pair of limited edition Nike shoes on eBay, the auction reached $98,000 when eBay cancelled it. Plaintiffs re-posted the ad, but the bidding only reached $1,500, so they cancelled the sale and sued eBay for damages.

To justify cancelling the auction, eBay claimed multiple Terms of Service (TOS) violations by the plaintiffs, none of which were accepted by the court, so we won’t discuss them here.

eBay’s last defense was that their TOS had a clause allowing them to suspend service, as well as a limitation of liability clause, that would prevent them from being liable for damages in this case.

We note here that the judge does not just go ahead and apply the clause, but rather, takes the time to examine its validity. This is because the contract between the plaintiffs and eBay (the TOS) was a “contract of adhesion” as well as a “consumer contract”. In these types of contracts, abusive clauses are forbidden and courts will not apply them.

“A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.[…]” (1379, Civil Code of Quebec)

“A consumer contract is a contract whose field of application is delimited by legislation respecting consumer protection whereby one of the parties, being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property or services as part of an enterprise which he carries on.[…]” (1384, Civil Code of Quebec)

The Court found that the wording of the service suspension clause was too broad, allowing eBay to cancel service withought justification. The Court therefore deemed this clause abusive and refused to apply it.

Now, if eBay is not allowed to cancel a sale without justification, they may still cancel it if the action is justified by a serious reason. This is based on general contracts rules:

“The contractor or the provider of services may not resiliate the contract unilaterally except for a serious reason, and never at an inopportune moment; otherwise, he is bound to make reparation for injury caused to the client as a result of the resiliation.

Where the contractor or the provider of services resiliates the contract, he is bound to do all that is immediately necessary to prevent any loss.” (2126, Civil Code of Quebec)

The Court analyzed the various reasons brought up by eBay to justify the termination, but concluded that none of them were valid. Moreover, the Court also points out the lack of notice before the cancellation (the law says “never at an inopportune moment”). Therefore, eBay is liable for damages.

How does the court award damages?

Plaintiffs are asking for $98,000, which is the last bid, whereas eBay claims the shoes are only worth about $1,200.

The “loss of a future gain” may be compensated if the gain was certain or probable.

In this case, the court accepted the $98,000 valuation, which represented the last bid, rejecting eBay’s various claims that the buyers may not have honored their bids, as well as the claims that the shoes were worth between $170 and $3,200 based on other transactions.

However, just because the shoes could have been sold for $98,000 does not mean this is the amount that will be compensated. Various amounts may be deducted, and whether the Court will allow these deductions depends on the proof presented at trial.

For example, eBay claimed that the top bidder may have pulled out of the deal, but did not have proof to back that claim.

On the other hand, the judge did allow a 10% deduction, which represents the fee that would have been paid to eBay. The actual amount the plaintiffs would have received is therefore $88,200 (98,000 – 9,800).

Another issue is that plaintiffs must seek to minimize their own damages. In this case, plaintiffs should have sold the shoes for $1,500, and since they can still sell the shoes, the judge deducted the $1,500 from the damamges, for a final amount of $86,700 (98,000 – 9,800 – 1,500).

* * *

As an aside, I’d like to point out, regarding that last deduction, that many amounts were mentioned in the judgment:
– eBay valued the shoes at $1,200
– eBay sales of the same shoes went between $170 and $3,200
– plaintiffs’ second ad reached $1,500

The judge could have picked any of these numbers, and it is up to the parties to present arguments on the best number to pick.

eBay valued the shoes at $1,200, which is actually less than the value granted by the judge in the end. Tactically, this seemed strange to me, as a higher valuation would’ve given more deduction, but made sense when I thought about it: there’s no knowing which way the judge would lean, and eBay was hoping all along to only reimburse the market value of the shoes. In this context, it makes sense to hedge their bets and put forward a reasonable, middle-ground amount.

I also noticed that the judge did not deduct the 10% eBay fee on the $1,500 like it was done for the $98,000, possibly because nobody asked for it.

Quebec Court Invalidates Jurisdiction Clause in Ebay TOS

Two Quebec students with what is probably the most badass names recently won a small victory in Quebec Courts.

In Mofo Moko c. Ebay Canada Ltd. (French, but worth reading in its entirety), Plaintiffs are suing Ebay for loss of profit, or loss of opportunity, after Ebay’s untimely cancellation of their auction, which was nearing $50,000.

Plaintiffs filed their lawsuit in Montreal, which was promptly opposed by Ebay on the grounds that their user agreement specifies any litigation must be carried out in California.

The Court, however, points out that the User Agreement is 6 and a half pages when printed, written in a hardly understandable language.

The Agreement specifies that the law applicable to the contract is the law of Ontario and applicable Federal laws, meaning any lawsuit will have to be not only in California, but based on Canadian and Ontarian laws.

The Court concluded that the intention behind such a condition was to discourage lawsuits, and is excessive, unreasonable, and abusive, and, when found in a “contrat d’adhésion”, is null and void.

The present ruling only concerns Ebay’s Motion to Dismiss, which they lost. It will be interesting to see if the main suit ever gets carried to term.

Small Claims Sunday #5

Apologies for the hiatus. I have been unusually busy the last month due to starting an internship. I might only have time to cover one decision every Sunday for now.

Membrane de PVC Duradek Québec inc. c. Lévesque, 2012 QCCQ 12094 (payment for construction work)
Plaintiff is suing for payment of the balance on a sales & installation contract of membranes to cover 3 “galeries”. The contract was concluded in May 2011, and Defendant paid $2015,90 deposit. However, by July 2011, only 2 of the 3 “galeries” were completed. Plaintiff refused to finish the work until a second instalment was paid. Defendant contests the amount, and claims Plaintiff did not have the proper construction registrations.
Result: The Court had to answer many questions before reaching a verdict:
Is the contract valid?
Articles 46 and 50 of the Loi sur le bâtiment state that constructors must be registered, and a contract with a non-registered constructor may be nullified.

46. Nul ne peut exercer les fonctions d’entrepreneur de construction, en prendre le titre, ni donner lieu de croire qu’il est entrepreneur de construction, s’il n’est titulaire d’une licence en vigueur à cette fin.

Aucun entrepreneur ne peut utiliser, pour l’exécution de travaux de construction, les services d’un autre entrepreneur qui n’est pas titulaire d’une licence à cette fin.

50. La personne qui n’est pas elle-même un entrepreneur qui a conclu un contrat pour l’exécution de travaux de construction avec un entrepreneur qui n’est pas titulaire de la licence appropriée peut en demander l’annulation. […]

However, the court did not consider the installation of the membrane to be “construction work”, and declined to apply the principles above.

When does the work have to be paid?
2111 CCQ states the client does not have to pay until the work is delivered; so did the Defendant’s contract. Plaintiff was wrong in asking Defendant to pay before the work was completed.

Given the behaviour of the parties, should the contract be terminated (résilié)?

1604. Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. […]

Yes. The Court will not order the complete cancellation of the contract, as substantial work has been done, but only resiliation, which is valid for the future.

Amount owed to Plaintiff
Duradek claims: $4 064.51
Court deducts: $750 for corrective work defendant will have to have done.
Court deducts: $2 015.90 for the deposit
Court adds: $604.20 for the third membrane specifically ordered for the job.

Amount owed to Defendant
Court awarded $500 to compensate for loss of profit from the sale of the building.
Court also awarded $600 for inconveniences to Defendant, including having to find a new contractor to correct the work, having to answer to the buyer about the work, and hassles dealing with Plaintiff.

Since when are interests owed?
For Plaintiffs, from the date the action was filed at court, given the lack of formal notice.
For Defendants, from the date the counter-claim was filed.

Brace yourselves, copyright shakedowns are coming!

News have been going around lately that Voltage Pictures is targeting thousands of IP addresses belonging to TekSavvy users for alleged copyright enforcement. Voltage is seeking a court order to force TekSavvy to disclose the identities of the users behind these IP addresses.

Unfortunately, TekSavvy has so far refused to oppose the motion, as opposed to the ISPs targeted last time someone tried to get a similar motion.

Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case. Our place is to ensure that we provide adequate notice and also to make known to others that these requests have occurred and that the best way to make sure to avoid being involved is to simply not engage in such activities. If somehow you end up involved and you feel its not right, the place to voice your concern is the hearing on Monday. If you intend to appear, please let us know also.

Now, I don’t think this is a particularly good response, although I see where this is coming from. You have here an independent ISP whose position in the market is catering to tech-savvy people. One might suppose that a larger proportion of its users engage in file sharing, compared to other mainstream ISPs. It would then be understandable that TekSavvy feels it needs to take position against illegal filesharing, as opposed to fighting for its users, so as to not seem like it condones the activities of its users.

That being said, I do think this position is misguided. TekSavvy doesn’t have to comment on the merits of the case. Last time around, in 2005, a similar disclosure request was rejected by the Court after the ISPs fought for their users. Ultimately, the argument retained by the Court was one of privacy: there had been too much time elapsed between the moment the rightholders obtained the IP addresses and the moment it asked for disclosure.

[43]If there is a lengthy delay between the time the request for the identities is made by the plaintiffs and the time the plaintiffs collect their information, there is a risk that the information as to identity may be inaccurate. Apparently this is because an IP address may not be associated with the same individual for long periods of time. Therefore it is possible that the privacy rights of innocent persons would be infringed and legal proceedings against such persons would be without justification. Thus the greatest care should be taken to avoid delay between the investigation and the request for information. Failure to take such care might well justify a court in refusing to make a disclosure order.

Apart from that, the Federal Court of Appeals pretty much overruled the other arguments of the lower court, which were based on the actual substance, or merits of the case.

The current case is set to resume in January, so one can hope that there is enough pressure for TekSavvy to reconsider its position. Ultimately, it is up to the company to look at the facts of the case and make a good legal and PR decision.

Small Claims Sunday #4

Lots of new decisions this week, but not a lot of interesting ones, so I’ve only picked 4.

Legault c. Opris (insurance, car repairs)
Plaintiff is suing for damages from the repairs (or lack thereof) to his vehicle, and cost of car rental during the time of the repairs. Plaintiff brought the vehicle to Defendant’s garage for repairs after an accident. Plaintiff’s insurance company sent an agent to the garage to assess damages, after which the agent issued a check to Defendant to cover repair costs. The car was only given back to Plaintiff over a month later, with some repairs omitted. Defendant claims the insurance company signed off on the repairs, so Plaintiff should complain to his insurer.
Result: The judge rejected the damages regarding rental of a car during the repairs. The document used to prove the costs has been drafted by a friend of Plaintiff. However, testimony showed the car had been lent to Plaintiff in exchange of services rendered. Moreover, the receipt said taxes were included, thought the friend had no authorisation to levy taxes. The Court concluded the deal was against tax laws, and Courts will not honour such agreements.
As for the damages regarding repairs, Plantiff should have sued his insurer, as it was the insurance company who had the obligation to return the car in the state it was before the accident.

Arama c. Azoulay (copyright violation)
Plaintiff is asking for $5000 over damages after Defendant used a photo taken by Plaintiff, without compensation or attribution. Plaintiff had posted a low-resolution version of the photo to a website. Defendant used the photo on the cover of his book. Plaintiff attended the book’s launching and confronted Defendant. He claims having found the image on a website, with no source or attribution. He claims having used the image in good faith. He also demands $999 from Plaintiff for spoiling his book launch.
Result: The usage of the image infringes on Plaintiff’s copyright, and causes her prejudice as she is a professional photographer. The Court grants Plaintiff $2000 in damages.
On the other hand, The Court rejected the $999 counter-suit since Plaintiff’s behaviour was caused by Defendant’s infringement.
Note: the court didn’t consider being rude as illegal or, at least in this case, as warranting damages. We also note that the Court does sometimes “arbitrarily” set damages. In this case, we can’t tell if Plaintiff testified on the cost of a license for her pictures. One could imagine the defendant could have reduced his damages if he could prove Plaintiff usually licences her images at a lower rate.

Dumont c. Dépanneur Yun Wang (damages to car due to gas quality)
Plaintiff is asking for $1 240,73 over damages to his car caused by the poor quality of gas bought at Defendant’s gas station. Plaintiff filled up his car at defendant’s gas station, then notices his motor emitting smoke later that day. He decides to bring his car to the garage the next week, but the car does not even start. However, after replacing the diesel by new fuel, the car starts normally, and Plaintiff has not had a problem since.
Result: Claim is rejected. Plaintiff never formally notified Defendants as required by law (CCQ 1595, 1738). Moreover, Plaintiff has not proven that the gas was tainted or unfit for use (nobody kept a sample for analysis), and defendant never got any complaint from anyone else.

St-Pierre c. Bell Mobilité cellulaire inc. (damages from change in cell phone plan)
Plaintiff is suing Bell for $4950 worth of damages after Defendant made changes to Plaintiff’s cell phone plan. Plaintiff was a long term customer of Defendant’s. In 2010, Defendant offered Plaintiff a new cell phone should he sign up for a 3-year contract. Shortly thereafter, Plaintiff saw some of his services cut, and his voicemail erased. Defendant also charged him for more service fees. Being a consultant, Plaintiff claims the changes affected his business.
Result: The Court awarded Plaintiff $2000 for partial damages. Plaintiff claimed expenses to produce new supplies with a different phone number, but had no invoice to prove them. However, since Defendant was at fault for not disclosing the changes in their service plans, and Plaintiff did suffer damages, the Court decided on the amount of $2000.

New diagrams: confinement & psych evaluations

English follows.

La section sur la garde en établissement et les évaluations psychiatriques s’appliquent dans le cas où une personne (habituallement majeure) est emmenée dans un établissement pour y recevoir des soins psychiatriques, malgré son désaccord. Pour la protection du patient et du public, le code civil va permettre, sous certaines conditions, à l’établissement de garder le patient, même contre son gré.

Pour ce faire, le patient doit représenter un danger pour lui-même ou pour autrui. Une garde préventie est permise si le danger est grave et imminent, mais l’autorisation du tribunal sera nécessaire pour lui faire subir un examen psychiatrique.

Les articles 26 à 31 prévoient les règles relatives à la garde, à l’examen, ainsi qu’aux rapports d’évaluation psychiatriques. Ci-dessous, la version réarrangée.


The section on confinement and psych evaluations applies when a person (usually of full age) is brought into a institution to receive psychiatric care, in spite of his opposition. To protect the patient and the public, the Civil code will allow, under certain conditions, the institution to keep the patient, even against his will.

To do so, the patient must be a danger to himself or others. Preventive confinement is permitted if the danger is serious and imminent, but authorisation of the court will be necessary to make him undergo a psychiatric assessment.

Articles 26 to 31 sets out the rules applicable to confinement, assessment, and psych assessment reports. Below is the re-arranged version.