To start with, we must first clarify whether immigration is regulated by the federal or provincial governments. Section 95 ofThe Constitution Act of 1867 attributes to the provincial Legislature, or provincial governments, the powers to enact laws in relation to immigration, subject to any laws adopted by the Parliament of Canada, or the federal government, in connection with the same. Essentially, provincial laws in the matter of immigration shall apply unless otherwise repugnant to any federal statutes adopted by the Parliament of Canada. In other words, what this means is that our constitution splits the powers and competence over immigration between the federal and provincial governments.
More specifically, as for the legal landscape in Quebec and as discussed earlier, both the federal and provincial statues are applicable: the Immigration and Refugee Protection Act, a federal Act, and an Act respecting immigration to Quebec, the provincial counterpart. Therefore, in the matter of immigration, one will need to consider the foregoing laws and all of its associated regulations to be able to paint a complete portrait of the Quebec immigration legal landscape.
Now, what are the desired objectives of both the federal and provincial government of Quebec in regulating immigration? Both the Immigration and Refugee Protection Act and Act respecting immigration to Quebec objectives are similar in nature. Section 3 of the former outlines several key goals sought by the Parliament of Canada which I textually reproduce herein:
(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;
(c) to support and assist the development of minority official languages communities in Canada;
(d) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
(e) to see that families are reunited in Canada;
(f) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
(g) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
(h) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;
(i) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(j) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and
(k) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.
As you can see, some of the aforementioned objectives have a political connotation and may as a result be driven by popular demand and pressures on our elected representatives. As for the Quebec Legislature, pursuant to Section 3 of the Act, reproduced integrally, the below shall guide the selection of foreign nationals in Quebec:
(a) to contribute to the enrichment of the socio-cultural heritage of Québec, to the stimulation of its economic development and to the pursuit of its demographic objectives;
(b) to facilitate the reuniting, in Québec, of Canadian citizens and permanent residents with their close relatives from abroad;
(c) to enable Québec to assume its share of responsibilities regarding the reception of refugees and other persons in a particularly distressful situation;
(d) to favour the coming, among foreign nationals who apply therefor, of persons who will be able to become successfully established in Québec;
(e) to facilitate the conditions of the stay in Québec of foreign nationals wishing to study, work temporarily or receive medical treatment, having regard to the reasons for their coming and the capacity of Québec to receive them.
Clearly, there are certain common guidelines that transpire from both the federal and provincial statues: (1) economic and social enrichment, (2) facilitate the reuniting of families, (3) strengthen the educational and scientific activities. One’s application may be more favorably treated if the applicant’s personal circumstances are in line with the above objectives as set forth in the subject immigration statues.
However, every three years, there is public consultation on the planning in respect of permanent immigration to Quebec allowing the opportunity to rebuild consensuses around the key objectives of the Quebec immigration policy. In 1990, the National Assembly unanimously adopted a policy statement further defining Quebec’s key immigration objectives: (1) recovery of its demographic situation, (2) economic enhancement, (3) protection and survival of its French character and (4) openness to the world. As a result, new wave of immigration to Quebec shall be analyzed and treated according to the immigration policy applicable at that point in time and a different weight may be given to each of the aforementioned policy objectives.
To sum up, for an applicant to be admitted to immigrate to Quebec, the society must benefit in the aggregate unless otherwise admitted for humanitarian reasons. In the event that it is viewed that an applicant may be a potential burden on the collectivity or will be unable to positively contribute to the provincial demographic recover or economic enhancement, the process may become more tedious and difficult.
I’ve briefly given you an overview of the objectives pursued by the federal and provincial government in the matter of immigration. Please remember that there are many other factors that are considered as for a legal standpoint in reviewing one’s application for immigration into Quebec. In the event you have any particular questions with respect to your own personal situation and circumstances, I highly recommend that you seek professional advice.
Wednesday, February 20, 2008
Sunday, February 3, 2008
Investing in China’s Economic Potential
I was recently at a very informative seminar on China's economic potential hosted by Clearsight Investment Program from Wellington West Capital. It is surprising to see the economic growth registered by China in the past few years and one wonders how fast and for how long would a country be able to sustain such growth.
Undoubtedly, in the past few years, there has been an immense market appreciation and as a result, many profited from such market movements. More concretely, the billionaire investor Warren Buffet, through his company Berkshire Hathaway Inc., recorded 64% increase in profits in the third-quarter of 2007 on an 800% gain on a stake in PetroChina Co. Furthermore, there are currently 106 billionaires in China, 700% higher than last year. This is just a testament to the rapidly growing economy of this country. My only question: is there a speculative bubble in the Chinese market; if so, are we anticipating a market correction?
Here are some websites you can visit for more information on this:
Economics: CEOs' confidence level
In the final quarter of 2007, the Conference Board Measure ("CBM") of CEO Confidence showed a decline to 39 points. This is the lowest measurement since the final quarter of 2000 when the CEO Confidence was registered to be 31 points. On this scale, a score above 50 reflects a more positive sentiment than a negative one. Clearly, at 39 points, the economic outlook by CEOs is not great, standing at a seven year low.
Some factors such as the housing market troubles, liquidity crisis associated with the Asset-Backed Commercial Paper, financial markets instability and energy prices have contributed to the decline in CEO Confidence level.
To read more about this interesting survey, you can visit: http://www.conference-board.org/utilities/pressDetail.cfm?press_ID=3303
Tuesday, January 29, 2008
Food & sanitation safety
Next time you do your groceries, I want you to reflect a little on what you are buying. Are you buying a Canadian product, imported product, is it organic, genetically modified? There are many questions that we could be faced with when considering food and the consumption safety thereof.
There are various risks associated with food: (1) chemical risks such as pesticides and antibiotic traces in food, (2) microbiological risks such as parasites found in food or various types of harmful bacteria and (3) nutritional risks associated with our own metabolism such as allergens.
Several organizations such as the World Health Organization ("WHO"), Canadian Food Inspection Agency ("CFIA") and Health Canada ("HC") monitor the food industry, within their own sphere of competence, and adopt measures and guidelines for the prevention of any form of health hazard caused by the introduction of imported food, new technological processes having an impact on food or any other factors influencing the food we consume.
HC is the Federal department responsible for the health of Canadians with a mission to prevent and reduce risks associated with the food we consume. On the other hand, the CFIA is responsible for the inspection and application of the guidelines set forth by the HC for the safeguarding of food, animals and plants consumed by Canadians. Here is a non-exhaustive list of laws within HC's jurisdiction:
There are various risks associated with food: (1) chemical risks such as pesticides and antibiotic traces in food, (2) microbiological risks such as parasites found in food or various types of harmful bacteria and (3) nutritional risks associated with our own metabolism such as allergens.
Several organizations such as the World Health Organization ("WHO"), Canadian Food Inspection Agency ("CFIA") and Health Canada ("HC") monitor the food industry, within their own sphere of competence, and adopt measures and guidelines for the prevention of any form of health hazard caused by the introduction of imported food, new technological processes having an impact on food or any other factors influencing the food we consume.
HC is the Federal department responsible for the health of Canadians with a mission to prevent and reduce risks associated with the food we consume. On the other hand, the CFIA is responsible for the inspection and application of the guidelines set forth by the HC for the safeguarding of food, animals and plants consumed by Canadians. Here is a non-exhaustive list of laws within HC's jurisdiction:
- Feeds Act;
- Food and Drugs Act;
- Consumer Packaging and Labelling Act;
- Fertilizers Act;
- Fish Inspection Act;
- Meat Inspection Act; and
- Canada Agricultural Products Act.
There are also certain other risks identified and ultimately studied: (1) the use of Recombinant Bovine Somatotropin, a synthetic version of the naturally occurring growth hormone, (2) genetically modified food and (3) cloned animals. HC prohibits the use of Recombinant Bovine Somatotropin in Canada but does not see any health risks associated with genetically modified food or any food directly coming from or resulting from the use of cloned animals.
For more information on this, you can visit HC's website. What's interesting particularly about HC's website is that you can see if there are any advisories, warnings or recalls issued on any type of food or product sold in Canada.
Concordia University ranked 33rd in the world
Ever wondered which Canadian universities best prepare its students for business leadership positions? According to a study conducted by the European École des Mines de Paris, anaylysing the development training programs of 338 universities accross the world, Concordia University ranked as the highest rated Canadian university on its world-wide ranking table.
It must be noted that Concordia University has produced the highest number of CEO's in a Fortune 500 company: André Desmarais of Power Corporation, Domenic D'Alessandro of Manulife Financial and Gerald T. McCaughey of the Canadian Imperial Bank of Commerce. Being a former graduate of Concordia University, this is something to be proud about! The world's top five universities with graduates occupying a Fortune 500 position are: (1) Harvard University, (2) Tokyo University, (3) Stanford University, (4) Ecole Polytechnique of France and (5) HEC of France.
As I like to compare Concordia to McGill, according to the above report, Concordia is ranked 33rd followed on this world-wide ranking out of 338 universities and McGill is ranked.....roll the drums..... 318th!!! This reconfirms my firm belief that Concordia's business faculty is a exemplary school of business and undoubtedly among the elite in Canada.
To view the report, you can visit: http://www.ensmp.fr/Actualites/PR/EMP-ranking.pdf
Sunday, January 27, 2008
Business etiquette & protocol
We all know that the first impression, whether on clients, business partners, family members etc., is crucial in establishing one's credibility. We must, therefore, make an effort to ensure that we leave a positive first impression on our clients or otherwise by adopting an appropriate business etiquette.
To know more about (1) how to shake one's hands, (2) choosing wine but within your budget without looking cheap, (3) sitting at the dinner table, (4) politely leaving, (5) working on your visual contact, (6) memorizing one's name, (7) conversing with someone we do not know etc., you can use the services of Chantal Lacasse who's an expert in this field. It would cost you about $1,500 for one hour of her time, not considering hall, meal and other expenses, but I believe that it is worth the investment.
For more information, you can visit: http://www.chantallacasse.com/index.html.
Homo consumericus: evolution & consumption
I've had the pleasure to attend, recently, a conference at the John Molson School of Business where Dr. Gad Saad presented his latest research and findings in connection with the consumer behaviour, the so called "Homo consumericus" theory.
Dr. Saad's objective, unique in its approach, is the attempt to explain our consumption behaviour using the Darwinian evolutionary theory. His postulate, transcending all cultures, ethnicities and racial diversities, attempts to identify a set of universal variables influencing the our consumption pattern and behaviour. According to Dr. Saad, as humans, our consumption behaviour has been shaped, on the one part, by our social and cultural influences and background, and, on the other part, by our biological and genetic framework resulting from thousands of years of evolution.
Interestingly, further to some empirical research conducted by Dr. Saad, it has been demonstrated, very creatively I might add, that, to a certain extent, men and women's consumption behaviour, irrespective of social influences and cultural background, is strongly correlated with a man and woman's biological instincts universal across the human specie.
Dr. Saad has recently published a very interesting book discussing at large and length his theory of humans' consumption pattern as shaped by our genetic and biological makeup titled "The Evolutionary Bases of Consumption", which I shall purchase very shortly and strongly recommend that you read as well. Some of the interesting topics discussed therein are (1) the Darwinian gastronomy, (2) salt consumption (consumption behaviour depending on the weather), (3) situational hunger and food shopping (our purchasing behaviour when we are hungry) and (4) gift-giving to kin (protection and passing of our genes).
For more information on the foregoing, please visit Dr. Saad's website at: http://jmsb.concordia.ca/~GadSaad/home.html.
Tuesday, January 22, 2008
Abortion: Anniversary of Roe v. Wade
On January 22, 1973, the US Supreme Court legalized abortion further to its decision in Roe v. Wade. In its decision, the Supreme Court layed out the foundation for the "trimester analysis" whereby in the first three months of pregnancy, no government regulation can restrict abortion; in the following trimester, the government may regulate only for the purpose of protecting women's health and preserving her safety; and last, allowing the government to fully regulate and ban abortions in the final trimester of the pregnancy. This decision was a crucial at the time as many women died every year in trying to get abortion through channels other than clinical as a result of the prohibition imposed.
Roe v. Wade was a heavy blow to the anti-abortionist groups who have attempted, in the following years, to have it overthrown but with little success. CNN's article discussing such subsequent events is very enlighting and I would recommend that you read through it. You can visit the below sites for more:
CNN's "35 years after Roe: A legacy of law and morality":
http://www.cnn.com/2008/US/01/21/scotus.roevwade/
ROE v. WADE, 410 U.S. 113 (1973) - U.S. Supreme Court :
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113
R. v. MORGENTALER [1988] 1 S.C.R.:
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html
Roe v. Wade was a heavy blow to the anti-abortionist groups who have attempted, in the following years, to have it overthrown but with little success. CNN's article discussing such subsequent events is very enlighting and I would recommend that you read through it. You can visit the below sites for more:
CNN's "35 years after Roe: A legacy of law and morality":
http://www.cnn.com/2008/US/01/21/scotus.roevwade/
ROE v. WADE, 410 U.S. 113 (1973) - U.S. Supreme Court :
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113
R. v. MORGENTALER [1988] 1 S.C.R.:
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html
Monday, January 21, 2008
The fall of the All Mighty
The markets today, on January 21, 2008, showed signs of fear and anxiety about the impending US recession. The TSX lost 604.99 points at the close of business representing a downfall of 4.75%. Why are investors so worried? What caused this selling frenzy? Who is behind this market volatility? The short answer to that is: the United States.
Some say that the US economy is heading towards a recession, some say this is in fact the start of a recession and some other say that we are already in a recssion. Quite frankly, at this stage, this determination, in my view, is more theoretical than anything else. Whether we are in a recession or not, the economy's vital signs are demonstrating hints of fatigue and slowdown and we have already experienced, in concrete and quantifiable terms, some form of a economic setback.
In todays economic global village, several other countries have graduated to the big leagues and now playing with the big boys: China, India, and others such as Russia. The US economy, the once feared and the All Mighty, has been crippled over the past few years further to several major events, inter alia, September 11, Irak war, liquidity crisis, astronomical deficit and the outlook is not very promising. One interesting twist in today's economic juncture is that the purchasing power of Americans has dropped and will continue to drop but most likely the oil prices will remain at the current levels, because it is no longer the US who's sustaining the oil consumption of the world but countries such as China and India. China and India will keep the oil prices sky high and this will have a very devastating impact on the US economy.
What this means is that if I was George Bush, I would ensure that I take a few introduction courses on economics and implement policies and programs designed to immediately mitigate some of the economic damages. It is quite tragic to see a country, such as the United States, showing off record surpluses and economic strength not even a decade ago but now struggling to prevent a recession, or to make it theoretical again, get out of a recession already in motion.
As for our poor Canada, there's good news and bad news. The good news is that there are other countries with great economic prospect and potential hungry for our products worth capitalizing upon but the bad news is that all the industries closely tied to the United States will either disappear in some cases and shrink in others. Bottom line: Canada, in the aggregate, will not be as badly punished as anticipated as a result of the US economic slowdown because we now have other big players to play with. We can now afford to sell our products to other economies able and willing to purchase our goods and services. On the long run, our industries will adapt themselves to this new global economy and rely less on the United States. If I remember correctly from business school, this is what we call "diversification"! Let's hope that Canada can land safe in this economic turmoil...
Some say that the US economy is heading towards a recession, some say this is in fact the start of a recession and some other say that we are already in a recssion. Quite frankly, at this stage, this determination, in my view, is more theoretical than anything else. Whether we are in a recession or not, the economy's vital signs are demonstrating hints of fatigue and slowdown and we have already experienced, in concrete and quantifiable terms, some form of a economic setback.
In todays economic global village, several other countries have graduated to the big leagues and now playing with the big boys: China, India, and others such as Russia. The US economy, the once feared and the All Mighty, has been crippled over the past few years further to several major events, inter alia, September 11, Irak war, liquidity crisis, astronomical deficit and the outlook is not very promising. One interesting twist in today's economic juncture is that the purchasing power of Americans has dropped and will continue to drop but most likely the oil prices will remain at the current levels, because it is no longer the US who's sustaining the oil consumption of the world but countries such as China and India. China and India will keep the oil prices sky high and this will have a very devastating impact on the US economy.
What this means is that if I was George Bush, I would ensure that I take a few introduction courses on economics and implement policies and programs designed to immediately mitigate some of the economic damages. It is quite tragic to see a country, such as the United States, showing off record surpluses and economic strength not even a decade ago but now struggling to prevent a recession, or to make it theoretical again, get out of a recession already in motion.
As for our poor Canada, there's good news and bad news. The good news is that there are other countries with great economic prospect and potential hungry for our products worth capitalizing upon but the bad news is that all the industries closely tied to the United States will either disappear in some cases and shrink in others. Bottom line: Canada, in the aggregate, will not be as badly punished as anticipated as a result of the US economic slowdown because we now have other big players to play with. We can now afford to sell our products to other economies able and willing to purchase our goods and services. On the long run, our industries will adapt themselves to this new global economy and rely less on the United States. If I remember correctly from business school, this is what we call "diversification"! Let's hope that Canada can land safe in this economic turmoil...
Saturday, January 19, 2008
The status on law firms
Jordan Furlong makes a very interesting statistical analysis on lawyers practicing in firms, size of law firms etc. I recommend that you read through this very informative synopsis of where the industry is heading at http://law21.ca/2008/01/11/law-firm-size-past-present-and-future/#more-53.
Lawyers Without Borders
For lawyers who would like to make a difference in the community and contribute a little time for the greater common good, one organization suitable for you is Lawyers Without Borders ("LWB").
This non-governmental international organization provides legal assistance to individuals and groups in third-world countries who require such assistance. As an example, LWB just recently issued a report on the status of lawyers and the justice system in Columbia.
For more information, you can visit their website at: http://www.asfquebec.com.
This non-governmental international organization provides legal assistance to individuals and groups in third-world countries who require such assistance. As an example, LWB just recently issued a report on the status of lawyers and the justice system in Columbia.
For more information, you can visit their website at: http://www.asfquebec.com.
Tuesday, January 15, 2008
Mergermarket's 2007 league tables
Please visit Mergermarket's 2007 league tables of legal advisors to global mergers and acquisitions: http://www.mergermarket.com/pdf/Press-Release-for-Legal-Advisers-Q4-2007-Global-Final.pdf
iPod levy quashed
The Federal Court of Appeal ("FCA") quashed a levy imposed by the Copyright Board, which would have been introduced sometime in 2008, on MP3 players, mobile phones, computers and other digital recorders. Such levy would have resulted in increased prices paid by consumers, depending on the capacity of storage, in purchasing digital recorders.
The FCA indicated that the "Copyright Board erred in law when it concluded that it has the legal authority to certify the tariff that CPCC has proposed for 2008-2009 on digital audio recorders".
Read also: http://www.cbc.ca/consumer/story/2008/01/11/levy-recorders.html
Passport Attestations: recent developments
New requirements in the matter of passport attestation (1) requires the passport attestors to confirm their date of birth and passport number when attesting to an applicant's identity and (2) has broadened the category of persons who can attest thereto.
Visist the following: http://www.cma.ca/index.cfm/ci_id/10042146/la_id/1.htm
Visist the following: http://www.cma.ca/index.cfm/ci_id/10042146/la_id/1.htm
Monday, January 14, 2008
Quebec's legal system: Civil & Common Law
Numerous laws and regulations shape our daily lives and help preserve the crucial balance between our individual and our collective rights and freedoms. To allow every person to exercise his or her natural and inherent freedoms within the confines and limit of every other person’s natural and inherent freedom, we, as individuals living collectively, must forgo and restrict to a certain extent our own personal autonomy for the benefit of the collective good. We have thus collectively entered into an implicit contract, a social contract, comprised of the aforementioned laws and regulations offering us the required protection and fostering our development within the social framework.
There are two major of legal systems upon which the social contract nourishes itself from: the Common Law and the Civil Law. Firstly, the British Common Law is a legal system based upon jurisprudence, going back to the Norman Conquest in 1066. Such decisions are referred to as “precedents” where the ratio decidendi, the rationale of the decision, is applied to future cases similar in nature. On a long run, the decisions or precedents thus establish and dictate the legal framework applicable to persons within the Common Law jurisdictions. Precedents can, however, only be overruled by Statutes or new laws adopted by the government, essentially keeping in check the powers vested upon the judicial system.
Secondly, the Civil Law, rather than primarily basing itself on decisions or precedents, is based upon a strict and general codification of the legal parameters applicable in the jurisdiction. This set of “written” laws are more commonly referred to as a “code” which is comprised of a logical and structured sequence of provisions governing the people. A judge need not base his or her ruling on precedents of cases presenting circumstantial similarities but must interpret the facts as evidenced before the court of law in accordance with the Statutes and the written laws of the land.
Specifically, the Civil Law, taking roots in the Roman tradition, is a written codification of the laws governing persons, their relationships and their property. France adopted, further to the French Revolution in 1789, the Code Napoléon, covering matters such as the legal attributes of a person, relationship among individuals, property and institutions governing the relationships thereof.
As mentioned previously, we have collectively entered into a “social contract” where we are individually, living in a given society, a party to this contract and therefore subject to the provisions thereof, consisting of all applicable laws adopted by our elected representatives. The social contract, from the moment of our conception, birth, our childhood, adulthood and ultimately to our death, even in the handling of our bodies upon passing, provides for and establishes guidelines, some imperative, serving as pillars to the societal foundation.
In Quebec, the Civil Code of Quebec ("C.C.Q.") is an essential component to our social contract, dictating, in some cases, or suggesting, in others, logically and in a structured manner, the legal parameters among persons, relations among persons and their property. However, there is a bijural legal system in Quebec based upon the English Common Law and the French Civil Law. This unique legal structure is found in only two jurisdictions in North America mainly due to their colonial history: the state of Louisiana and the province of Quebec. Thus, our social contract is an amalgamation or merger of both the English Common Law and French Civil Law traditions, having distinct origin and approach, resulting in Quebec’s unique legal landscape.
The C.C.Q. came into effect on January 1, 1994 replacing the former Civil Code of Lower Canada (“C.C.L.C.”) enacted by the Legislative Assembly of the Province of Canada in 1865, which came into effect as of July 1, 1866. Over the years, and further to numerous modifications and amendments, the provisions of the C.C.L.C. became outdated and needed reform; it was was no longer as logically structured and coherent as it first used to be. Major societal changes and breakthroughs, since the adoption of the C.C.L.C., over the course of the following century, completely altered the social and legal scenery in Quebec and the C.C.L.C., more and more liberally interpreted by the judicial bodies, was in a desperate need for modernization.
In 1955, the Government of Quebec embarked on a reform of the C.C.L.C by establishing the Civil Code Revision Office where consultations were held, reports produced, subsequently leading to the Draft Civil Code, tabled in the Quebec National Assembly, some twenty-three years later, in 1978. Progressively, in the following decade, the Draft Civil Code slowly but surely took shape and paved the way for the adoption of the C.C.Q. as a law on December 18, 1991, taking effect as of January 1, 1994.
Undoubtedly, the reform of the C.C.L.C. and adoption of the C.C.Q. was, within the civil law jurisdictions around the world, one of the largest and most complete recodification undertakings. Remarkably, the C.C.Q. was, in 1994, a complete restatement of the civil law of Quebec, which included judicial interpretations of the provisions of the C.C.L.C., where applicable. The C.C.Q. very nicely summarizes its purpose in the Preliminary Provision:
“The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”
The C.C.Q. today is the fruit of centuries of evolution and plays a central role in our daily lives. It is this Code that offers every person the civil protection necessary and imposes upon the same restrictions and obligations allowing peaceful interaction among all. “Every human being possesses juridical personality and has the full enjoyment of civil rights” (art. 3 C.C.Q.) and “every person is fully able to exercise his civil rights” (art. 4 C.C.Q.). However, “no right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith” (art. 7 C.C.Q.).
The history and evolution of every legal system is rich and fascinating; that of Quebec is no exception.
There are two major of legal systems upon which the social contract nourishes itself from: the Common Law and the Civil Law. Firstly, the British Common Law is a legal system based upon jurisprudence, going back to the Norman Conquest in 1066. Such decisions are referred to as “precedents” where the ratio decidendi, the rationale of the decision, is applied to future cases similar in nature. On a long run, the decisions or precedents thus establish and dictate the legal framework applicable to persons within the Common Law jurisdictions. Precedents can, however, only be overruled by Statutes or new laws adopted by the government, essentially keeping in check the powers vested upon the judicial system.
Secondly, the Civil Law, rather than primarily basing itself on decisions or precedents, is based upon a strict and general codification of the legal parameters applicable in the jurisdiction. This set of “written” laws are more commonly referred to as a “code” which is comprised of a logical and structured sequence of provisions governing the people. A judge need not base his or her ruling on precedents of cases presenting circumstantial similarities but must interpret the facts as evidenced before the court of law in accordance with the Statutes and the written laws of the land.
Specifically, the Civil Law, taking roots in the Roman tradition, is a written codification of the laws governing persons, their relationships and their property. France adopted, further to the French Revolution in 1789, the Code Napoléon, covering matters such as the legal attributes of a person, relationship among individuals, property and institutions governing the relationships thereof.
As mentioned previously, we have collectively entered into a “social contract” where we are individually, living in a given society, a party to this contract and therefore subject to the provisions thereof, consisting of all applicable laws adopted by our elected representatives. The social contract, from the moment of our conception, birth, our childhood, adulthood and ultimately to our death, even in the handling of our bodies upon passing, provides for and establishes guidelines, some imperative, serving as pillars to the societal foundation.
In Quebec, the Civil Code of Quebec ("C.C.Q.") is an essential component to our social contract, dictating, in some cases, or suggesting, in others, logically and in a structured manner, the legal parameters among persons, relations among persons and their property. However, there is a bijural legal system in Quebec based upon the English Common Law and the French Civil Law. This unique legal structure is found in only two jurisdictions in North America mainly due to their colonial history: the state of Louisiana and the province of Quebec. Thus, our social contract is an amalgamation or merger of both the English Common Law and French Civil Law traditions, having distinct origin and approach, resulting in Quebec’s unique legal landscape.
The C.C.Q. came into effect on January 1, 1994 replacing the former Civil Code of Lower Canada (“C.C.L.C.”) enacted by the Legislative Assembly of the Province of Canada in 1865, which came into effect as of July 1, 1866. Over the years, and further to numerous modifications and amendments, the provisions of the C.C.L.C. became outdated and needed reform; it was was no longer as logically structured and coherent as it first used to be. Major societal changes and breakthroughs, since the adoption of the C.C.L.C., over the course of the following century, completely altered the social and legal scenery in Quebec and the C.C.L.C., more and more liberally interpreted by the judicial bodies, was in a desperate need for modernization.
In 1955, the Government of Quebec embarked on a reform of the C.C.L.C by establishing the Civil Code Revision Office where consultations were held, reports produced, subsequently leading to the Draft Civil Code, tabled in the Quebec National Assembly, some twenty-three years later, in 1978. Progressively, in the following decade, the Draft Civil Code slowly but surely took shape and paved the way for the adoption of the C.C.Q. as a law on December 18, 1991, taking effect as of January 1, 1994.
Undoubtedly, the reform of the C.C.L.C. and adoption of the C.C.Q. was, within the civil law jurisdictions around the world, one of the largest and most complete recodification undertakings. Remarkably, the C.C.Q. was, in 1994, a complete restatement of the civil law of Quebec, which included judicial interpretations of the provisions of the C.C.L.C., where applicable. The C.C.Q. very nicely summarizes its purpose in the Preliminary Provision:
“The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.
The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”
The C.C.Q. today is the fruit of centuries of evolution and plays a central role in our daily lives. It is this Code that offers every person the civil protection necessary and imposes upon the same restrictions and obligations allowing peaceful interaction among all. “Every human being possesses juridical personality and has the full enjoyment of civil rights” (art. 3 C.C.Q.) and “every person is fully able to exercise his civil rights” (art. 4 C.C.Q.). However, “no right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith” (art. 7 C.C.Q.).
The history and evolution of every legal system is rich and fascinating; that of Quebec is no exception.
Thursday, January 10, 2008
General Statutory Holidays: Reasonable Accommodations
There is an article published in the January 2008 issue of the Barreau du Québec on Vol. 40 no. 1 relating to "reasonable accomodations" when it comes to an employee's work schedule that I would like to bring to your attention.
Employers must carefully establish internal policies relating to statutory general holidays and non-working day with pay entitlements in conformity with the Labour Standards Act (Québec) ("LSA"). Specific measures must be taken to avoid any type of discrimination against employees, whether religious or otherwise, as a result of inequitable treatment when consenting or refusing to consent to requested non-working day with pay.
Section 60 of the LSA (Quebec) provides for the statutory general holidays which is defined to be (1) January first ; (2) Good Friday or Easter Monday, at the option of the employer; (3) the Monday preceding 25th of May; (4) first of July, or second of July where the first falls on a Sunday; (5) the first Monday in September; (6) the second Monday in October; and (7) 25th of December.
Where it may get complicated is when dealing with employees who are part of a certain minority group. To avoid any unnecessary suits and actions, internal policies must explicitly layout the treatment of employees' work schedules, for religious reasons or not, on days other than the aforementioned statutory general holidays. The rule of thumb in handling such requests must be for employers to reasonabliy accommodate time-off requests without discrimination or perception of discrimination by ensuring that its decisions does not result in a an employee suffering from unreasonable loss of pay or non-working day with pay entitlement or suffer in any unreasonable fashion, depending on the circumstances.
Interesting case law to read is: Hayley Cole v. Bell Canada (2007) T1114/9505
Employers must carefully establish internal policies relating to statutory general holidays and non-working day with pay entitlements in conformity with the Labour Standards Act (Québec) ("LSA"). Specific measures must be taken to avoid any type of discrimination against employees, whether religious or otherwise, as a result of inequitable treatment when consenting or refusing to consent to requested non-working day with pay.
Section 60 of the LSA (Quebec) provides for the statutory general holidays which is defined to be (1) January first ; (2) Good Friday or Easter Monday, at the option of the employer; (3) the Monday preceding 25th of May; (4) first of July, or second of July where the first falls on a Sunday; (5) the first Monday in September; (6) the second Monday in October; and (7) 25th of December.
Where it may get complicated is when dealing with employees who are part of a certain minority group. To avoid any unnecessary suits and actions, internal policies must explicitly layout the treatment of employees' work schedules, for religious reasons or not, on days other than the aforementioned statutory general holidays. The rule of thumb in handling such requests must be for employers to reasonabliy accommodate time-off requests without discrimination or perception of discrimination by ensuring that its decisions does not result in a an employee suffering from unreasonable loss of pay or non-working day with pay entitlement or suffer in any unreasonable fashion, depending on the circumstances.
Interesting case law to read is: Hayley Cole v. Bell Canada (2007) T1114/9505
Monday, January 7, 2008
Amendments to the Highway Safety Code
In mid-december 2007, Bill 42 amending the Highway Safety Code hoping to limit deaths caused by reckless driving received Royal Assent. Such amendments include:
- the implementation of photographic radars;
- ban on cellular phones used behind the wheel;
- heavier sanctions for speed-limit violations;
- speed control for heavier vehicles;
- mandatory winter tires; and
- a ban on fast-car advertisement.
For more on this issue, you can read: http://www.ledevoir.com/2007/12/19/169178.html or http://www.canada.com/montrealgazette/news/story.html?id=0612c7c0-bf85-4043-a37e-e359e2bde8d7&k=93940
Technology's impact on our laws
With the lightning-speed development of technology, I wonder, how fast do our laws keep up with the changes.
Boiling everything down to the basics, what we’ve learned in our Introduction to Law lectures, laws are meant to protect the people living collectively in society; this reminds me of the “social contract”. One problem: our social contract seems to be lagging our social development and thus no longer offers either the protection or coherence necessary, as the case may be.
What should we do? The magic question. For laws to be effective, they must be “stable”; for laws to protect, they must be flexible and adaptable to our social realities. We must determine how much stability can we sacrifice for the sake of protection or how much protection can we forgoe for the sake of stability?
For example, there's another Facebook issue. Two youngsters charged with murder, their identity legally kept anonymous pursuant to the Youth Criminal Justice Act, but they have been perfectly identified on Facebook. Read Howard Elliott's post titled: "Facebook poses dilemma" at http://www.thespec.com/Opinions/article/305727. I am of the opinion that any legal incoherence must be rectified. But what do we do in a year, two years or three years down the road, when new online trends emerge? Do we go back to the drawing board and adopt new laws? Will we be, as citizens, fully cognizant of the applicable laws at any point in time if we allow such rapid changes? Are we cognizant of the laws applicable to us now?
We live with Internet and technology and so our laws need to carefully establish the legal parameters surrouding these activities. But how fast can our laws keep up? I table this question and I would like to get anyone’s feedback.
Tuesday, January 1, 2008
What to look for when hiring a lawyer?
It may be difficult for someone to find the right lawyer knowledgeable, willing and able to handle the legal issue that one may be faced with. So how do we chose? There are certain characteristics that you may want to find in a lawyer before you make your selection:
1- Experience is definitely on top of the list. Depending on the complexity of the legal issue, an experienced lawyer may be your safest bet;
2- With experience comes reputation. By asking around within or outside of the legal community, you may get a better sense of your lawyer's reputation;
3- Service provided by the lawyer. It is important for a lawyer to provide an adequate service to his or her clients such as returning promptly your calls, keeping you updated with any developments on a regular basis etc.;
4- Honesty and integrity. Your lawyer must inspire confidence, must deal with his or her clients in an honest fashion and not take advantage of anyone vulnerabilities.
Before you make your selection, the above characteristics are what I believe your lawyer must exhibit. You may associate more importance to one characteristic over another but the bottom line is that your lawyer delivers what he or she purports to deliver.
1- Experience is definitely on top of the list. Depending on the complexity of the legal issue, an experienced lawyer may be your safest bet;
2- With experience comes reputation. By asking around within or outside of the legal community, you may get a better sense of your lawyer's reputation;
3- Service provided by the lawyer. It is important for a lawyer to provide an adequate service to his or her clients such as returning promptly your calls, keeping you updated with any developments on a regular basis etc.;
4- Honesty and integrity. Your lawyer must inspire confidence, must deal with his or her clients in an honest fashion and not take advantage of anyone vulnerabilities.
Before you make your selection, the above characteristics are what I believe your lawyer must exhibit. You may associate more importance to one characteristic over another but the bottom line is that your lawyer delivers what he or she purports to deliver.
Dial 311...
If you need any additional municipal information, you can now dial 311 any day of the year.
Winter tires are now mandatory in Quebec
Here is an interesting update for you folks living in Quebec to consider. Pursuant to a new law recently adopted applicable in the province of Quebec, starting from November 15, 2008 through April 15, and on a yearly basis thereon, Quebec drivers must equip their vehicles with winter tires. Read more about this topic by visiting: http://www.cbc.ca/canada/montreal/story/2007/12/20/quebec-snowtires.html?ref=rss.
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