Law Times

Law timeS • September 23, 2013 COMMENT Page 7 Fight just beginning over constitutionality of Quebec values charter T he No. 1 goal of the Parti Québécois has always been sovereignty and the preservation of Quebec's identity. Everything else — the French language included — just ties in to it. The identity issue was there even before the PQ with the hanging of Louis Riel, the Manitoba schools question, the Victoria charter of 1970, and the quest to enact the Meech Lake Accord. Now with the PQ in a minority position in the national assembly and an election coming any time, it's the identity thing all over again. Things are already getting ugly. Earlier this month, hardline minister Bernard Drainville brought out a draft version of his charter of Quebec values. He challenged the federal government and Quebec's immigrant communities directly as the PQ hopes to provoke an all-out battle that will divide Quebec and keep it in power. The conflict will eventually end up before the courts as sure as the St. Lawrence River flows out to the sea. But by then, the PQ may have won re-election. The public service, courts, schools, and hospitals are the main targets. People working in those places will no longer be able to show conspicuous signs of their faith. They can do that at home but not at work. So the new charter will target people like Jewish doctors wearing kippahs while on their rounds in the hospitals, nurses with headscarves or veils, and cops wearing turbans. Even Christian quietly in favour of living crucifixes are off limits if they're too conspicuous. And The Hill together based on common rules. who judges that? Well, in most The fall session of the nacases it will be the "boards of tional assembly opened last directors," which can mean week in Quebec with veiled any supervising body for any women attending it to show of those people. their opposition to the charter. Ethnic communities are Every other party in the furious and Quebec anglonational assembly spoke phones have sided with them. But neither of these groups Richard Cleroux against the present version of the charter and so did all of votes for the PQ. Still, most of the people who live and work in Mon- the federalist parties in Ottawa. One hospital in Ontario has already treal are siding with them as well. Last week, the first poll came out from begun running ads in newspapers showForum Research with 43 per cent of re- ing nurses wearing headscarves under spondents in favour of the charter and 42 the headline: "We're interested in what's in your head, not what's on it." per cent against it. It makes an older generation think The PQ government says the debate back to the days when McGill Univerwill last three or four months until the final version of the charter goes to a vote sity's medical school required higher marks from Jews trying to get in. in the national assembly. In Montreal, home of most of those But even if the PQ minority loses the vote, it will still end up rallying its militants. who wear headscarves, kippahs, and turThe politicians themselves, of course, bans, some are asking whether there's a would be exempt from the charter. They place for them in Quebec and, in some can wear whatever they want. And some cases, where they fit into the indepenof the provisions in the charter wouldn't dence movement. This is, above all, a legal issue. take effect right away. Quebec Justice Minister Bertrand StFormer Bloc Québécois leader Gilles Duceppe would never have gone for this. Arnaud refused to say last week whether His idea was to bring everybody in Que- he got a legal opinion on the constitubec into the tent. But his approach didn't tionality of the present version of the work and he isn't running things anymore. charter. If he's going ahead without a Premier Pauline Marois is the boss of the valid legal opinion, what sort of a justice PQ in Quebec City, and Daniel Paillé, who minister is he? If he has an opinion, why runs the Bloc Québécois rump in Ottawa, keep it hidden? There was a leak from respected listens to her every word. Marois says Quebeckers must stand constitutional expert Henri Brun that seemed to say the Charter would stand a legal test. Brun sits on Marois' sovereignty committee. As the debate raged, the PQ cabinet minister for Montreal, Jean-François Lisée, came out to cool things down a bit by promising the government would show flexibility in applying the charter. As for the crucifix in the national assembly, it stays because that's part of Quebec's history and isn't a religious symbol even though some might argue it's rather conspicuous. Actually, then-premier Maurice Duplessis put up the crucifix in 1936 to thank the priests who had urged their faithful to vote for his Union Nationale party. Some clergy said from the pulpit: "Le ciel est bleu; l'enfer est rouge." (Heaven is blue; hell is red.) Kathleen Weil, a former Liberal cabinet minister, said she disagrees with the government's stance. The current version of the charter wouldn't pass the legal test, she said. "It's hogwash," she snapped. "I was justice minister from 2008 to 2010 and I know the lawyers in the department here. They are some of the best in the country. They are wonderful and of the highest calibre." She trusts their opinions, not what the government is saying. The fight is only just beginning. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His email address is richardcleroux@rogers. com. case highlights need to illuminate bright lines in limited retainers A large portion of my practice involves expert testimony on behalf of real estate and business solicitors accused of negligence. There's a real dearth of good case law directly on point mainly because the matters that get to trial are usually pretty fact specific. That said, every now and again a case comes along that alters the landscape of the law and provides the bar with guidance as to where to draw that liability line. The Ontario Court of Appeal decision in Outaouais Synergest Inc. v. Lang Michener LLP may be one such case. In Outaouais Synergest, a lawyer with a sophisticated client apportioned the due diligence on a commercial vacant land acquisition between himself and his client such that the client was to deal with the development and rezoning issues while the solicitor handled the traditional title matters. As it turns out, a 0.3-metre reserve separating the property from the seemingly adjoining public road rendered it legally landlocked. To make matters worse, the reserve was subject to rather onerous discharge terms that required the payment of development charges amounting to almost half of the purchase price. At trial, the court determined the solicitor was liable for failing to advise his client on the municipality's exact requirements for lifting the reserve and failing to clearly demarcate the lines of responsibility as between the law firm and the client regarding what So in Outawas a development issue ouais Synergest, the and what was a title matter. The Dirt solicitor would have to have It's this latter issue that advised the client clearly will have the most prothat he wasn't proposing to found impact on the pracinclude a review of the retising bar. Most lawyers, quirements for lifting the especially those practising reserve as part of his legal in the corporate commerretainer. He'd also have to cial sphere, will have clients have warned about the imof sufficient sophistication Jeffrey Lem plications of the reserve. to represent themselves for Although Outaouais certain aspects of the due Synergest is a real property diligence. Furthermore, there's a growing number of allied case, its ratio transcends well beyond professionals who now make up the its facts and actually applies very poimodern commercial acquisition team. gnantly to other areas of corporate They include surveyors, environmen- commercial practice. Commercial tal engineers, land-use planners, risk leasing and acquisitions and disposiconsultants, and others. It's not un- tions of businesses all lend themselves common to allocate due-diligence re- to limited retainers and mixed teams of professionals. While most solicitors sponsibilities accordingly. The Court of Appeal, citing with have now gotten the hang of the limitapproval the rule in Accurate Fasten- ed retainer, Outaouais Synergest adds a ers Ltd. v. Gray, stated that "'while the further wrinkle to warn about the risks lawyer is not required to act as a quar- outside of it. After-the-fact assertions terback, co-ordinating and directing of a limited retainer and apportioned the activities of the purchaser's team, due diligence without express limits the prudent solicitor must explain and warnings about the risks will now the clauses that require due diligence probably fall on deaf judicial ears. While the finding as to the soliciinquiries by the purchaser and ensure tor's liability in Outaouais Synergest the client understands the conseis itself probably not that surprising, quences of waiving the conditions.'" Accurate Fasteners is actually a the court's conclusion that questions twofold test: First, there needs to be "relating to ingress and egress affect that bright-line demarcation of re- whether the vendor can convey a good sponsibility; and, second, solicitors and marketable title" raised some eyehave to advise the client on the due- brows. This was an unfortunate statediligence hot buttons even if they're ment by the appeal court because, not the ones who will ultimately be frankly, it's wrong. Although access can affect the value dramatically, it's addressing them. www.lawtimesnews.com not and has never been a determinant of good and marketable title. One can own Blackacre in fee simple with a perfectly good and marketable title even if there's no legal access to it. Of course, the distinction probably would have made no difference to the outcome of Outaouais Synergest. Frankly, I believe, as did the solicitor in Outaouais Synergest, that reserves like the one at issue here are generally development issues handled by the person otherwise dealing with the development approvals. The client in Outaouais Synergest had agreed to deal with development issues and, therefore, the reserves probably fell on its side of the due-diligence allocation. As the Court of Appeal made clear, however, unless that retainer had expressly and clearly allocated access as a client responsibility and it was aware of the importance of the reserves, their exact nature as a title or a development issue is ultimately moot. In the end, there was arguably nothing wrong in what the solicitor did as part of his real estate closing retainer in Outaouais Synergest. His negligence, determined after the fact with the benefit of hindsight, was in the failure to draw the bright line before the engagement started and in failing to warn the client of the perils that lurked on the other side of that line. LT uJeffrey W. Lem is a partner in the real estate group at Miller Thomson LLP. His e-mail address is jlem@millerthomson. com.

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