June 10, 2004 - 2 — Le Protecteur du citoyen

34th Annual Report of the Protecteur du citoyen (2003-2004)

"For the citizen: building on common sense"

Here are examples of building on common sense

An unreasonable demand

1. A couple incurred a debt of $12,000 with the ministère de l'Emploi, de la Solidarité sociale et de la Famille for having unlawfully received assistance. They agreed on a payment schedule in the order of $130 a month. Upon renewing the agreement, the Ministère demanded payments of $340 a month, an increase of 160%. The couple tried to convince the Ministère of their inability to pay such an amount since their family income barely exceeded $15,000 annually, but to no avail. The case was brought to the attention of the Protecteur du citoyen , which concluded that the Administration's demand was clearly unreasonable when considering the precarious financial situation of the couple, and that it was therefore unlikely that the couple would be able to meet such a commitment. Moreover, the couple had lived up to their previous obligations and the amount outstanding was then a mere $4,000. The Ministère concurred and a new agreement was reached with payments set at $150 a month. (page 24)

She has to reimburse money paid to her son's kidnappers.

2. A citizen owed more than $20,000 to the above Ministère after signing a sponsorship agreement in order for her parents-in-law from the same native country as her husband to come and settle in Quebec. This agreement required that the citizen reimburse any amounts paid by the State to sponsored individuals over a given period of time. They all moved in with the citizen and her husband. However, the couple's relationship deteriorated. A victim of conjugal violence, the citizen lodged a complaint against her husband. The parents-in-law then rented an apartment of their own and received social assistance benefits. The couple reconciled and they all traveled to her husband's country of origin, an endeavour which turned out to be a trap. The lady was sequestered by her husband and parents-in-law. She finally managed to escape, leaving her five-year-old son behind. She has not seen the child since, despite her many attempts to find him, which have cost her over $50,000. Furthermore, the Ministère demanded that she reimburse the social assistance benefits paid to her son's kidnappers, to the tune of $350 a month. She sought help from the Protecteur du citoyen . After a careful investigation of the alleged facts, which confirmed the citizen's story, the Protecteur du citoyen concluded that there was evidence of “exceptional circumstances” which justified writing off the debt according to a legislative provision. The Ministère accepted to cancel the debt. (page 24)

Some flexibility, please

3. Two farmers were late in filing their requests for tax refunds with the ministère de l'Agriculture, des Pêcheries et de l'Alimentation (MAPAQ). They both provided detailed accounts of the reasons for their delay. The first farmer suffered from an incapacitating illness and was also the victim of negligence on the part of his accountant, who belatedly registered his company anew. The second farmer's daughter had passed away after a prolonged illness, a profoundly disturbing event which caused him to forget the filing deadline. Despite these explanations, the Ministère categorically refused to review these citizens' requests. Questioned on this issue by the Protecteur du citoyen , the Administration stated that in its opinion, such deadlines constituted an absolute requirement and that it was therefore not their policy to consider reasons provided by citizens in such cases. The Protecteur du citoyen pointed out that the Act respecting administrative justice allows the Tribunal administratif du Québec (TAQ) the option to extend deadlines imposed on a citizen to take action when “serious and valid reasons” exist and that if such a principle was upheld by the Tribunal, the Administration should also do likewise. The Ministère concurred with the Protecteur du citoyen . The two requests were reviewed and accepted. Moreover, the Ministère also intends to review its relevant policy in depth. (page 10)

Unnecessary requirements

4. A French-speaking citizen wished for her son to be admitted into an English school. According to the Charter of the French Language, she had to provide proof that one of the child's parents is of English Canadian origin and attended English elementary and secondary schools in Canada. As it was, the child's father is an English-speaking citizen born in New Brunswick. The ministère de l'Éducation demanded that be provided the child's birth certificate. However, the father's name does not appear on said document, which was issued in the United States where the child was born, since he had refused to acknowledge the child. However, the child's mother also provided the results of a DNA paternity test, the ruling of an American court confirming said paternity, as well as a ruling from the Québec Superior Court granting her custody of the child and directing the father to make support payments, all to no avail. The Administration continued to insist on the need for a certificate bearing the father's name, failing which, the child would be expelled from his English school after the Christmas holidays. Questioned by the Protecteur du citoyen , the Administration argued that it was necessary to have this document to issue the child with a new permanent code, a prerequisite for the child to be eligible. The Protecteur du citoyen found that the Ministère's position was not only unreasonable but also refused to acknowledge the enforceability of court rulings. By taking this position, the Ministère was also opposing the regulation that stipulates that “an official document issued by a competent authority and establishing the date of birth, sex and filiation of the child” is just as valid. The Ministère ended its bureaucratic harassment and issued the certificate of eligibility. (page 23)

A ridiculous situation

5. A Quebec citizen moved to another country upon retiring. He informed his ex-employer that his income tax deductions regarding his pension income were to be paid entirely to the appropriate federal agency, Canada Customs and Revenue Agency (CCRA), since he was no longer living in Quebec. He later returned to Canada to settle in another province when he was informed by the CCRA that it had received only half the amounts due. After investigation, he found that his ex-employer had paid the balance by mistake to the ministère du Revenu du Québec (MRQ). The citizen therefore contacted the Ministère and asked to be reimbursed, but was told that such requests should be made by the CCRA. The CCRA replied that there was no channel established to issue such a request to Quebec. Helpless, the citizen sought help from the Protecteur du citoyen . The MRQ explained that it could not reimburse the citizen since he had not filed any income tax return in Quebec. As a result, the MRQ could not amend a notice of assessment that had never been issued. Such an argument left the Protecteur du citoyen dumbfounded. Any modicum of common sense required that the issue be looked at further. The MRQ was clearly in possession of funds that it was not entitled to because of an error that was no fault of the citizen. The Administration had to resolve this issue, which it managed to do later on, thereby putting an end to a rather strange episode. (page 30)

Once should suffice

6. A citizen bought a car and paid the appropriate sales tax. The vehicle turned out to be stolen. After the investigation was closed, the insurance company wanted to return the car to the citizen, without further consideration. In order to straighten out the issue of ownership, the company bought the car and resold it to the citizen without any money being exchanged. The citizen paid the sales tax again and demanded reimbursement from the ministère du Revenu du Québec (MRQ), which categorically refused to reimburse said payment. Questioned by the Protecteur du citoyen , the Administration justified its decision by arguing that, according to the Civil Code of Quebec, the citizen could have requested that the company pay the tax. Under these circumstances, the Act respecting the Québec sales tax does not allow the Ministère to issue reimbursement. The Protecteur du citoyen thought that this point of view was unreasonable and defied common sense. How could the citizen ask the company to pay the sales tax when the company was giving him the car? Moreover, it was also obvious that the legislator's intent was not for a citizen to pay the sales tax twice for the same purchase. At the end of a needlessly lengthy process, the Administration finally agreed with the Protecteur du citoyen 's recommendation and issued the reimbursement. (page 28)

A breach of dignity

7. Further to a complaint of an inmate at the correctional facility in Quebec, which is under the jurisdiction of the Direction des services correctionnels of the ministère de la Sécurité publique , the Protecteur du citoyen discovered that this inmate was brought before the disciplinary committee while he was almost naked. Indeed, he was only given a towel to hide behind before being seen by several people, including a few of the opposite sex. The Administration could not provide any argument to justify humiliating the inmate in this way and violating the basic concept of human dignity. Need we stress that such a situation does not make any sense? At the request of the Protecteur du citoyen , an official letter of apology was issued to the citizen. A memorandum was also written and delivered to the employees, reminding them that such behaviour was unacceptable. The Protecteur du citoyen hopes that such an event will never occur again. (page 35)

Kept in prison because his money was lost

8. A citizen was arrested by the police, who confiscated $250 in his possession and gave him a receipt. Afterwards, he was transferred to prison before appearing before the Court. A $200 bail was requested when the citizen appeared in Court. To pay his bail, he wanted to use the money that had been confiscated. The police station supervisor maintained that the money was transferred to the correctional facility, which stated not having received anything. Therefore the citizen had to remain in prison. Called upon to intervene, the Protecteur du citoyen observed that the alleged facts were true. The money was indeed misplaced. It was however impossible to determine by whom, since the prison did not keep a register to log such transactions. Moreover, the fact still remained that the citizen was prejudiced by being deprived of his freedom for forty-eight hours, following an error that was not his own and that this prejudice would be increased if this situation persisted. The Administration of the detention centre agreed to reimburse the money to the citizen even though no culprit could be found. Considering the importance of the principle involved, which is the right to freedom, this solution should have been made obvious without the Protecteur du citoyen 's intervention. (page 34)

Restrictive interpretation of a provision

9. A 25-year old citizen finished her vocational studies in police technology in the spring to enrol in the mandatory internship at the École nationale de police as a student. She would begin her internship the following January, which is a common practice at this institution. While working in the interim, she sustained an occupational injury, for which the Commission de la santé et de la sécurité du travail (CSST) granted her income replacement benefits (IRB) for a certain amount of time, based on minimum wage. In January, she suffered a relapse during her internship. She was granted IRBs, again based on minimum wage. The citizen requested that the benefits be calculated based on the salary of a police officer. Faced with the CSST's refusal, she sought help from the Protecteur du citoyen , which found that the position of the CSST opposed the legislation, as well as its own internal policy. The former stipulates that benefits paid to a student older than 21 must be calculated based on income he would have earned after completing his studies, had he not sustained an occupational injury. The latter states that a student must be considered as such if he or she is enrolled as a full-time student in an educational institution at the time of the event. This was the case of this citizen who also was enrolled as an intern at the time of her relapse. The CSST granted the citizen the additional benefits that she was entitled to, totalling more than $22,000. (page 40)

If only the SAAQ had contacted the acupuncturist

10. A citizen suffered a car accident. Her physician prescribed physiotherapy and acupuncture treatments. The Société d'assurance automobile du Québec (SAAQ) agreed to pay the cost for a series of treatments. However, after receiving the first invoice for the acupuncture treatments, the SAAQ refused to pay the invoice, which prompted the citizen to seek the help of the Protecteur du citoyen . The Protecteur du citoyen found that the SAAQ had refused payment for the treatments because the acupuncturist had indicated that he had been asked to treat a case of tendinitis. Since there was no mention of tendinitis in the diagnosis related to the accident, the Administration argued that the treatments were not related to the accident. However, the SAAQ had made this decision without consulting the acupuncturist. Asked to seek verification by the Protecteur du citoyen , the SAAQ found out that the term tendinitis had been used by mistake, that the treatment prescribed corresponded with the attending physician's prescription and they were clearly related to the accident. The SAAQ agreed to pay the costs, according to its initial decision. If the SAAQ had not been so quick to “jump the gun” and had investigated the matter after receiving the invoice, all this could have been avoided. (page 55)

Too much is just as bad as not enough…

11. Any driver whose licence has been suspended for impaired driving, which is a violation of the Criminal Code, has to submit to an evaluation in a rehabilitation centre recognized by the SAAQ in order to obtain a new licence. Depending on the case, different kinds of evaluation can be made summary, complete of complementary. The procedure can be short or and the cost for the citizen varies from $160 to $600. Some citizens do not request to have their licences reinstated immediately after the evaluation is completed. A citizen who had undergone a complete evaluation received a positive evaluation report in February of 2002. However, it was not until January of 2003 that he asked to renew his driver's licence. To his great surprise, the SAAQ refused and demanded that he be re-evaluated, stating that the evaluation was only valid for one year. Upon hearing the case, the Protecteur du citoyen discovered that the SAAQ had a policy on the matter supported by the federation of rehabilitation centres that conducted the evaluations. The Protecteur du citoyen pointed out that no legal provision supported said policy, that the citizen had not been informed of this internal policy and that there was no reason to believe that the citizen had experienced a relapse in 2002-2003. The Protecteur du citoyen therefore found the SAAQ's position to be unreasonable, arbitrary and devoid of common sense. The citizen and another one in the same situation, finally had their licences reinstated without a re-evaluation. (page 56)

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