Canadian Lawyer

September 2021

The most widely read magazine for Canadian lawyers

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UPFRONT 8 www.canadianlawyermag.com QUEBEC UPDATE IN A 5/4 decision in June that relied on the "highly technical" language of Quebec's Civil Code of Procedure, the Supreme Court of Canada dismissed an application by a media outlet to access court records. "The majority interpretation is the fine print in an insurance contract," said Roger McConchie, a partner in McConchie Law in Vancouver, "a highly technical interpretation based on a literal meaning of the rules and … of the case law relating to the discontinuance of proceedings." In MediaQMI inc. v. Kamel, the Supreme Court found that the appellant media com- pany could not access court documents that had been filed and then removed from a civil Access to court documents denied after proceedings have ended, says Jonathan Pierre-Étienne, a partner in Grondin Savarese Legal Inc. in Montreal and lead counsel for the respondent in the case, a former employee of MediaQMI. This restriction gives a party a greater sense of control and privacy over their files, he says. Applying the Code of Civil Procedure strictly as it does, the decision provides "a good base … for the lawyers of Quebec," Pierre-Étienne adds. The decision reaffirms "the guiding prin- ciples of civil procedure," says the respondent's co-counsel Antoun Alsaoub. He highlights article 108 in the Code, which states that "Once the proceeding has ended, the parties must retrieve the exhibits they have filed; oth- erwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading ter- minating the proceeding." In dissenting reasons, Chief Justice Wagner and Justice Kasirer found the case should have been sent back to the Superior Court to be decided based on the analytical frame- work established in Dagenais v. Canadian Broadcasting Corp. and R. v. Mentuck. Media company's application for access was made before discontinuance was filed but after proceedings were terminated lawsuit once proceedings ended. Notably, two of the three Quebec judges on the high court — Chief Justice Richard Wagner and Justice Nicholas Kasirer — dis- sented in the judgment. Justice Suzanne Côté penned the reasons for the majority, finding that since the statute regarding access to court exhibits under the Code of Civil Procedure was clear, there was no need to interpret it to make it consistent with the Charter. The judgment enforces the concept that the plaintiff (the respondent in this case) is "dominus litis" or master of their suit. While a third party may have access to a file or exhibit, "they have to take access with what is in it at the time they are looking in it" and not NEWS BRIEFS Debate on Bill 96 to begin Sept. 21 The future of the French language in Quebec will be the subject of much debate from Sept. 21 to Oct. 7, during the major consultation phase for Bill 96, the long-awaited reform of Bill 101. During the nine days of hearings, 52 individuals and organizations will come to the National Assembly to identify the strengths and weaknesses of the vast linguistic reform proposed in May by the minister responsible for the file, Simon Jolin-Barrette, and try to convince him to amend it, if necessary. Bell Canada settles 'Fibe' lawsuit Bell Canada has agreed to pay $2 million following a class- action lawsuit launched in Quebec in March 2017. The plaintiffs — all Quebec residents and consumers — alleged that Bell Canada misled consumers by using the term Fibe or fibre optics when offering hybrid services (i.e., composed of fibre optics and copper), in violation of Quebec's Consumer Protection Act. Bell Canada will pay $2 million to fully and finally settle the class action, which amounts to a credit of about $8 per eligible customer. "The decision reaffirms the guiding principles of civil procedure, [with] some articles that were highlighted."

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