To bridge the generational gap, we suggest looking at the root of the issue and the values at stake.

Often, the mistake is to assume that the core values of the business are already known. However, the definition of a value is not necessarily the same for everybody involved; it depends on personal and generational identity.

Thus, it becomes useful and profitable to define those values CLEARLY, especially to recruit new candidates that are a good fit for your business, but also to bring your employees to understand how they should act to meet your expectations.

To illustrate this concept, we will share with you the story of Thomas, owner of an established business, Elizabeth, his accounting director, and the new employee William, a 26 year old just recently graduated.

Thomas’ view of the situation as owner:

You’re happy and proud to have successfully built your business, as you dedicated a big part of your life to its success. Indeed, you did not take many days off during those years. Respect, discipline and your eagerness to work allowed you to distinguish yourself from the competition and gain the trust of many clients. You’re on the same page as your employees, most of them having participated to the development of the business since the beginning.

This year, you’ll have to start planning for the future of the management team as a lot of people recently retired or are planning to. Luckily, you already recruited a young graduate that you believe will develop into a great leader for your business’ future. You’re convinced that a major part of his career will be dedicated to your business, as it was the case for your current employees. After all, he’s a young man from the area and shares the same values you do.

One morning, Elizabeth, your accounting director for the past decade, asks for a one on one meeting with you. She mentions that she would like to talk about William, the new employee you appreciate so much. You start worrying because in your eyes William works well and seems to perfectly integrate the business. Besides, he doesn’t hesitate to come see you whenever he has a question and he follows up with you when you’re not available to answer him right away.

You suspect that Elizabeth probably wants to complain about some of William’s behaviors. Most likely, his tendency to always give his opinion even when not solicited. It even seemed like he was questioning some of your processes at the last meeting. When Elizabeth shows up to the meeting, she explodes: 

“Thomas, I don’t know what to do with those kids! It’s like they don’t take work seriously, all they want is to have fun! We are behind schedule in some important projects but during lunch, William goes out to eat rather than stay in to help and after the work day, he goes to his networking cocktails or to the gym… And the worst part is, he even asks to work from home when possible! Would you believe it! I had three kids and never worked a day from home Thomas! Apparently those kids lack some mental toughness. They can’t concentrate from 8 to 5, they need a break and they work better with a flexible schedule. I guess William really has trouble concentrating as he is often browsing Facebook and Twitter in his office. Can you imagine what he would do if he could work from home? The situation is getting ridiculous, what do we do about this?”

In the spur of the moment you don’t know what to tell Elizabeth. You realize the situation is a lot tenser than you thought. With the changing of the guard slowly happening, generational conflicts are inevitable. However, you don’t really know how you’ll handle the situation.

William’s view of the situation after being employed for one  year (26 years old):

You worked hard for your education, your parents supported you and you succeeded! All of your friends and family are proud of you. They have a reason to be, all those years of university were an intense period of sacrifice!

You managed to deal with your education, your job at the local supermarket and your social implications while keeping some time for your girlfriend, friends and family. Still, most of them probably thought you were kidnapped during your midterms and finals. 

Now that you graduated, you managed to get a great job in your field, right in your hometown too! You were ecstatic since you would be able to reconnect completely with your social and athletic life.

Up until very recently, you liked your new job. You were eager to put to work all the knowledge acquired in class. You were happy to have multiple tasks and when you had questions, people would voluntarily help you to save you some valuable time.

In the beginning, Elizabeth, your direct supervisor, seemed to trust you by giving you interesting projects to handle. Now though, she is easily angered and doesn’t understand why you don’t stay to help during lunch or after the normal business hours. 

Now that you’re done with university, you would like to balance the challenges of a stimulating career with a fulfilling personal life. 

As time goes on, you start being annoyed by the feeling that Elizabeth checks your every move. At first, you thought it was normal and simply part of the integration process but it’s been getting worst recently. You’re confident that your degree prepared you well enough to be independent and you don’t like being infantilized. 

Lastly, when you asked Elizabeth about working from home when possible, she did not react the way you thought she would, she was very uncompromising on the work schedule. This reaction was all the more surprising since you believed to have developed a relationship of trust with her. You were expecting more flexibility on her part so you could be able to work out in the morning and finish your work day later. You’re a lot more productive when you get to train before your day starts anyways.

You appreciate your colleagues and the purpose of the business but you’re confident it won’t be difficult for you to find another job in an environment that will adapt to your needs. 
-    What does this story tell us?
-    What can Thomas do to keep William as an employee?
-    How can you facilitate the relationships between different generations in your business?

Therrien Couture’s HR Department’s view of the situation:

Values, for each generation, can be very different or even in opposition. Throughout this story, Elizabeth’s point of view about flexible schedules varies completely from William’s. 

Facing this situation, we suggested to the owner that he needed to reflect on what’s really important for him and his team. To achieve this, we involved the employees by forming different discussion groups.

According to the participants, what were the actions and behaviors that were favoured by the management team? What needed to stay the same? What needed to change?

Consulting those discussion groups allowed us to report to Thomas how the needs and expectations of his employees had evolved. He was very receptive to the feedback and he identified core values that he believed were fundamental to the success of his business. 

The definition and clear communication of the business’ core values were very important steps as the gap in perception between different generations were underlined.

William was consulted in the context of this exercise which allowed him to identify what was important for him and his peers. His opinion being taken in consideration, William not only continued to work for Thomas, he also became an ambassador for the business.

Indeed, William now participates actively in the integration process of new employees. Working from home during regular business hours is still not allowed but Elizabeth now accepts that he comes in and finishes later. Also, she gives him more breathing room in the management of his time and more flexibility in the accomplishment of his tasks. 

Employees now better understand what is expected of them, what is allowed and well perceived and what isn’t. The accepted behaviors are well known and Elizabeth has better tools available to step in when someone doesn’t act coherently with the core values of the business. 

Furthermore, Thomas is very happy to have prioritized the strategic reflection around the values of his business as it led to an increase in performance from his team and it boosted his reputation as an employer in the area. Many qualified young professionals recently started submitting their resumes for various positions in his business as a result of this strategy. 

The notion of loyalty evolved a lot through the years and today’s generation hesitates a lot less when the occasion to take on new challenges for another employer arises. To face this reality and keep on attracting young talent, business owners need to understand the importance of investing in HR strategies that will keep them relevant and competitive.

Her multidisciplinary and multisectoral academic and professional experience will be an invaluable asset for our firm.

Suzanne, who is also an engineer, is a strategic advisor on regulatory and governmental matters.  In this capacity, she prepares submissions and makes representations before the CRTC, the Ministry of Innovation, Science and Economic Development and with delegations participating in the work of the International Telecommunications Union. Her strategic advice to businesses and associations operating in telecommunications and broadcasting industries allows such stakeholders to make the best use of existing rules for their benefit and helps them influence and shape public policy.

She also practises in the area of public international law as well as professional conduct and ethics. Ms. Lamarre currently serves as a member of the Disciplinary Council of the Ordre des ingénieurs du Québec since December 2007 and is a member of the Board of Governors of the Quebec Film and Television Council (QFTC) since 2015. From 2008 to 2013, she served on the Canadian Radio-television and Telecommunications Commission (CRTC).

Suzanne Lamarre, a lawyer specializing in the areas of telecommunications, radiocommunications and broadcasting law, presented a conference on September 29 at this year’s CCBE Annual Conference - http://ccbe.ca/.

To learn more about this topic, click here to view a PDF of her presentation.

As a lawyer in telecommunications, radiocommunication and broadcasting law, I presented the conference: "Harnessing Change: The Future of Programming Distribution in Canada, Really?" on June 6, 2018 in Toronto organized by the CDEC: https://cdec-cdce.org/

To learn more about this topic, click here.

To view the interview in French, go to 18 minutes of the video:

To see the article in French published in the daily Le Devoir:

 https://media2.ledevoir.com/culture/medias/551812/quebecor-risque-l-outrage-au-tribunal

For the 4th consecutive year, Suzanne Lamarre will be a jury member for “Tuned-In Canada” awards of the the Canadian Communication Systems Alliance (“CCSA”). The CCSA represent the independent providers of Internet, television and telephony services in Canada to Canadians living in communities that are generally located outside of urban markets.

You do not think much of it since you perceive yourself as a good taxpayer. You trust your accountants, who have always seemed like a reliable and qualified team. You have always tried to comply with the tax laws and have never done anything to consciously avoid your tax obligations. Thus, you feel confident about handling the visit of the auditor yourself.

As much as you and your accounting team have been acting diligently and in good faith, you must understand that tax laws are complex. A printed version of the annotated federal Income Tax Act and associated documents that many practitioners use contains over 3000 pages. Similar versions of the Excise Tax Act (GST), Taxation Act (Quebec) and of the Act Respecting the Québec Sales Tax (QST) together amount to over 5000 pages. The interpretation, application and administration of these laws are not an easy task and they sometimes have more to do with art than science. Whether your business is a multinational corporation that employs an army of tax professionals or a small business that employs one accountant, it is likely that the tax authorities will disagree with you at some point during the audit. This often stems from a lack of explanation, misformulated answers or insignificant technicalities noticed during the audit.

In our experience, these mistakes may develop into unimaginable and costly issues for certain taxpayers. Professional assistance at the early stages of an audit may prove to be extremely valuable in order to avoid some of these mistakes and ensure your rights as a taxpayer. If you receive an audit letter from a tax authority, our advice is to treat it with great care and consult a tax professional, if only to prepare yourself adequately for the audit of your business.

Your immigration status in Canada or that of your employee could also be affected. If you find yourself in one of the situations listed below or if you have any doubts about the precautions to take, please do not hesitate to contact us.

IMPORTANT - Please note that as of March 18, 2020, at noon, an entry ban will be imposed on all foreigners, except U.S. citizens. This measure does not apply to Canadian citizens or permanent residents of Canada. Foreign students, foreign workers or their families may not be allowed to enter Canada until further notice. The latter may also be subject to 14-day preventive quarantines. 

The United States has also adopted measures restricting entry to its territory to foreigners who have been to several countries. If you must travel to the United States in the coming days and weeks, please do not hesitate to contact us.

If you are a company employing temporary foreign workers:

• The COVID-19 impact on the hiring of temporary foreign workers currently in Canada is limited at this time;
• Temporary foreign workers may remain employed, within the limits initially set out in their employment contracts and on their respective work permits;
• In the case of work permit renewals, it is suggested not to travel in order to conduct renewals. It is therefore preferable to apply online;
• As recommended by the Government of Canada, it is suggested that all travellers from outside of Canada undergo a preventive quarantine for a period of 14 days upon their return to Canada. In this context, it is possible that certain compliance rules may apply, particularly with respect to the payment of the temporary foreign worker's salary during the period of isolation, depending on the immigration program used to hire him or her;
• In any case, if you think the situation will impact you, please contact us.

You may also find yourself in one of the following situations:

• My temporary immigration application (visitor, study, work) is currently being processed at an overseas processing centre;
• My immigration status in Canada is about to expire and I have not applied for a renewal;
• My visitor status is about to expire and I cannot leave Canada;
• I cannot return to Canada and am afraid of losing my immigration status;
• I have a study or work permit that is about to expire and have not submitted a renewal;
• I must go to a collection point in Canada to provide my biometric data;
• I need to have an immigration medical examination done by a Designated Medical Practitioner in Canada;
• I have an appointment to confirm my permanent residence at a Canadian immigration office;
• My citizenship test is scheduled for the next few weeks;
• My work permit application is being processed at a visa office abroad;
• I am scheduled to complete a "shuffle" in the coming days/weeks;
• I have to leave Canada soon;
• I am currently in implied status and planning to leave Canada;
• I am currently outside of Canada and have received my confirmation of residency which must be confirmed within the next few weeks;
• I am currently outside of Canada and plan to return to Canada soon.

Please note - some visa receiving offices abroad will be closed to minimize the spread of the virus. Nevertheless, it is still possible to submit most immigration applications online or by mail.

Processing times for applications currently being processed - We expect processing times to be longer than usual. Immigration, Refugees and Citizenship Canada has indicated that the temporary closure of several offices could increase processing times for applications currently being processed by the IRCC.

The situation is changing from hour to hour and the actions to be taken could change rapidly. Furthermore, each immigration situation is different and will require a case-by-case analysis in order to determine the solution that will best suit your circumstances. Hence, if you believe that your file could be affected by these events, please contact us quickly.

We understand that this situation can be baffling, and the consequences can sometimes be complex. Our team is ready to accompany and guide you in the best way possible to meet your immigration needs. 

The Canada Emergency Wage Subsidy (75%): For Whom and How to Benefit?

April 6, 2020

On March 27, 2020, following in the footsteps of several other countries such as Denmark, Australia and the United Kingdom, the federal government announced the introduction of the Emergency Wage Subsidy to help businesses; thereby making it possible to maintain the employment relationship of as many workers as possible during the coronavirus crisis.

Read more

Canada Emergency Commercial Rent Assistance (CECRA)

April 29, 2020

Due to the COVID-19 health crisis affecting us all, the federal government in collaboration with its provincial and territorial partners recently announced Canada's Emergency Commercial Rent Assistance (CECRA).

Read more

COVID-19: The Canada and Quebec Governments Offer Assistance to Businesses and Workers...New Announcements!

April 6, 2020

On March 21st, the Therrien Couture Joli-Cœur team published a first version of this article. This article was updated following additional announcements made by both the federal and Quebec governments.

Read more

How COVID-19 is affecting business at IRCC

March 26, 2020

Temporary foreign workers, some international students and approved permanent residents who haven’t yet landed are now able to enter Canada.

The travel restriction exemptions that were announced are now in place. If you’re exempt, you can now travel to Canada.

If you’re travelling by air, you need to pass a health check before you’re allowed to board your flight. Anyone who shows symptoms of COVID-19 will not be allowed to enter Canada by air.

When you arrive in Canada we’ll assess your health before you leave the port of entry. You must isolate for 14 days even if you have no symptoms. This is mandatory.

Only people who provide essential services and truck drivers who regularly cross the border to maintain the flow of goods are exempt from the isolation requirements.

Website: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-special-measures.html

COVID-19: Closure of Businesses and Non-Essential Services

March 24, 2020

At its daily press briefing on March 23, the provincial government ordered the closure of all non-essential businesses and services, effective Wednesday, March 25 at 00:01 a.m.This exceptional measure, which is in addition to others already in place, will be in effect until April 13, 2020, in order to further promote the containment of everyone and to halt the community contamination of COVID-19.

Read more

COVID-19: What About Sworn Statements?

March 24, 2020

Several measures have been announced in order to reduce court attendance and to halt the spread of COVID-19. As a matter of fact, only urgent requests continue to proceed, and technological methods are favoured. However, many of these requests require a sworn statement, formerly known as an affidavit, so it could be presented. Such statements are also required for files that will proceed by way of paper only.

Read more

IRCC update on travel in Canada

March 23, 2020

Workers, students and permanent residents whose applications have been approved, but who have not yet arrived, should not travel. We have announced exemptions, but they are not in place. Travel restrictions are still in place for these groups.

Only Canadian citizens and permanent residents of Canada, as well as certain foreigners travelling from the United States, who have lived in the U.S. for at least 14 days and are symptom-free, may enter Canada by air at this time.

Read more : https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-special-measures.html

How to Minimize the Impact of your Contracts in Connection with COVID-19?

March 23, 2020

For a few weeks now and particularly in the last few days, many of you have been wondering about the negative impacts of COVID-19 on your business. Most likely, you are beginning to feel a slowdown in your operations because the suppliers you deal with outside of the Canadian border have supply and/or production problems. Another possibility is that you have contracts with clients, distributors or partners that impose penalties in case of delays in delivery or production. It is quite possible that your business is already closed at the moment or that it will be forced to do so by tomorrow. Behind these legitimate questions lies the question of how you can lessen the impact of this crisis on your business.

Read more

COVID-19: temporary foreign workers, seasonal workers and international students will soon be able to cross the Canadian border

March 22, 2020

This update follows the restrictions regarding the travel ban imposed by the Government of Canada on March 20, 2020.

Please find the list of the impacted temporary residents below:

• Temporary Foreign Workers;
• Seasonal Agricultural Workers;
• Workers in the fish and seafood industry;
• Caregivers;
• International Students (with approved study permits or valid study permits);
• Permanent Resident applicants for which the permanent residency application has been approved but had not yet travelled to Canada.

Read more

COVID-19: Federal and Quebec Governments Offer Assistance to Businesses and Workers

March 21, 2020

The COVID-19 pandemic brings its share of disruptions around the world, but also in Quebec, affecting all spheres of the economy as well as employees, the self-employed and owners of small, medium and large businesses. Aware of this sad reality, the federal and Quebec governments have announced measures to limit their negative impacts. 

Read more

COVID-19: What is the impact on companies operating internationally? - Part 2

March 20, 2020

3 COVID-19 Q&As for Companies Operating Internationally:

1. We have plans to acquire a company abroad. How can the virus have a significant impact on the transaction and is it a good idea to get the project going?
2. We are accustomed to making all our transactions in US dollars or Euros. We have many outstanding contracts in foreign currencies as well. What could we do, and should we change our habits for future transactions?
3. Our company has an international contract in place that contains a force majeure clause. We must immediately stop production and temporarily close the plant due to COVID-19. We are therefore unable to meet our obligations towards our clients. What do we have to do quickly?

Read more

COVID-19: What are the HR impacts for companies that must shut down temporarily or completely?

March 19, 2020

The situation of COVID-19 is unique as it forces companies to adapt quickly. Many decisions will have to be made by business leaders in order to face this pandemic, which is why several HR impacts are expected.

Read more!

COVID-19: Your Health and Safety are Our Priority

March 18, 2020

We are aware your concerns about the spread of the COVID-19 pandemic and are following its evolution very closely. As we have previously communicated to you, we have established a COVID-19 Management Committee comprised of the CEO, the COO, our directors in the business offices and our managing directors.

Read more!

COVID-19: Is your Immigration Situation in Canada Affected?

March 17, 2020

The coronavirus - COVID-19 pandemic and its rapid spread in North America and around the world is leading our governments to take restrictive protective measures that increasingly affect the international mobility of people. Your immigration status in Canada or that of your employee could also be affected.

Read more!

COVID-19: What is the impact on companies operating internationally?

March 16, 2020

3 COVID-19 Q&As for Companies Operating Internationally:

1. My company must submit a major bid abroad and if we get the contract, it means that we will have to deliver our equipment to our client's premises as well as send a team to install the equipment.  Should we submit this bid or wait?
2. Our company ordered strategic components from international suppliers, which will then be integrated into the production chain of our products in Canada. We are concerned that we will not be able to receive our components on time, as Chinese factories are in the affected areas. What could we do?
3. Should our company consider changing its contract templates to be better equipped to deal with this pandemic or similar situations in the future?

Read more!

COVID-19: What are the employer's obligations?

March 15, 2020

Read our answers to the most common questions raised by employers in relation to the management of the COVID-19 pandemic:

1. What are the employer's obligations in the context of managing the COVID-19 pandemic?
2. What health measures should an employer put into place within its organization to protect its employees?
3. What strategies should an employer put in place to reduce the risk of contagion and to accommodate its employees?
4. What information can an employer request from its employees in order to assess the risks of contagion?
5. Can an employer require an employee returning from a trip abroad to isolate themselves for fourteen (14) days?
6. Can an employer require an employee returning from a trip abroad to isolate themselves for fourteen (14) days?
7. How should the employer respond if an employee displays symptoms of COVID-19 in the workplace?
8. Does an employer remain responsible for the remuneration of an employee who is absent due to preventative isolation?
9. Does an employer remain responsible for the remuneration of an absent employee who has contracted COVID-19 or who is showing symptoms?
10. In the event that an employee must be absent from work because of school and daycare closures, and has already taken the ten (10) days provided for in the Act respecting labour standards for family commitments or that their absence exceeds them, can the employer refuse the employee’s absence?
11. What financial measures are being put in place by governmental authorities to help employers and employees deal with the consequences of the spread of COVID-19?
12. Can an employee benefit from the coverage provided for in the group insurance contract should they need to absent themselves due to COVID-19?

Read more!

TCJ and COVID-19

March 13, 2020

In response to the situation, we have established a team made up of the Chief Executive Officer, the Chief Operating Officer, our office managers and our Managing Directors to share in real time the information provided to us by government authorities and the recognized media, as well as information from each of our offices, our practice groups and our partners and clients.

Read more!

This exceptional measure, which is in addition to others already in place, will be in effect until April 13, 2020, in order to further promote the containment of everyone and to halt the community contamination of COVID-19.

This announcement is the source of several questions for businesses who are wondering whether they will be able to continue their activities for the next three weeks. Although some elements remain to be clarified, here are the main points of what has been announced.

From the outset, it should be noted that the authorities have published an exhaustive list of businesses which they consider to be essential and which may therefore continue to operate.

In order to facilitate the application of this measure, the government is making available an online form that allows businesses that so desire to be put in contact with an agent who could answer their questions. This form is also intended to allow businesses that consider their activities to be essential to apply to be officially designated as such even though their sector of activity is not on the list that has been established.

In this regard, while it cannot be ruled out that the authorities could decide to expand the list of services and businesses deemed essential, the public health and safety objectives supporting the enactment of this measure will probably limit this possibility.

It is obvious that the new temporary closures announced will have an impact on the management of your business and will raise questions about the assistance measures available, particularly for employees affected by the closures. In this regard, we refer you to the articles published by our team in the last few days that summarize all the solutions that have been put in place.

In closing, let us remember that the measures of prevention and social distancing advocated by the authorities for several weeks now must continue to apply within the businesses and services that remain open. If this has not already been done, management must ensure that the necessary measures are put in place now to comply with the government's recommendations.

For any additional questions and for advice on how to properly manage the current situation related to COVID-19, we invite you to contact our team, who remain on the lookout of the latest developments for you.

No. This owner-builder may carry out, alone, certain work, for example those for which he personally holds a certificate of competence and those listed in "Schedule III: Subclasses under the Specialized Contractor’s Licence" of the Regulation Respecting the Professional Qualification of Contractors and Owner-Builders.

However, other than in cases of emergency aimed at preserving the integrity of their residence, preventing its imminent deterioration or ensuring the health and safety of the public, this owner-builder may not hire workers or a general or specialized contractor. The urgency of the work depends on the facts and the context in which it is to be carried out.

For the time being, construction site activities are suspended until May 4. However, this deadline may be extended.

For construction law related questions, we invite you to contact our team.

To view the presentation "Spotlight on the Broadcasting and Telecommunications Legislative Review Panel Final Report", click here!

Reform of PEQ:

The coming into force date of the new Regulation has not yet been announced.

This new reform will considerably limit access to the Quebec Experience Program.

a) PEQ – Graduates Program

• A 12- or 24-month full-time work experience will now be required for students and graduate international students wishing to apply for permanent selection at the PEQ.
• The duration of work experience following studies will be 12 months, within the last 24 months, for holders of a doctorate, master's degree, bachelor's degree or technical college diploma. To be considered eligible, work experience must be in a category 0, A or B job, according to the National Occupational Classification (https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/find-national-occupation-code.html). The field of employment does not necessarily have to be related to the field of study.
• The duration of work experience following studies will be 24 months, within the last 36 months, for holders of a Diploma of Vocational Studies (DVS) of at least 1800 hours.
• To be considered eligible, work experience must be in a Category 0, A or B job, according to the National Occupational Classification (https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/find-national-occupation-code.html). However, it will be possible to take into consideration work experience in a Category C job if it is in the same field of employment as the applicant's field of study. In the case of a Category 0, A or B job, the field of employment does not necessarily have to be related to the field of study.

b) PEQ – Workers Program

• Temporary foreign workers will now be required to accumulate 36 months of full-time work experience in the 48 months preceding their application for permanent selection (compared to the 12 to 24 months before the new regulation came into force).
• Category C or D jobs will no longer be eligible (https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/find-national-occupation-code.html).
• To be noted that Working Holiday Permit (WHP) or Young Professionals (YP) holders, LMIA work permit holders and other work permit holders may be affected by this measure, as some types of work permits are non-renewable and/or limited to a duration of less than three years.

c) Transitional Measures

• Foreign students who are currently pursuing their studies in Québec and who will not have applied for permanent selection under the PEQ before the new regulation comes into force will not be able to benefit from a grandfathering clause. To benefit from the transitional measures, graduates will have to submit their CSQ application to the PEQ before the coming into force of the new regulation.
• For the PEQ - Workers Program, holders of a valid work permit at the time the new regulation comes into force will be able to apply for a PEQ under the old criteria. The same applies to students who have completed their program of study and obtained a post-graduation work permit.

d) French Skills

• One year following the coming into force of the new regulation, spouses will have to demonstrate a level 4 knowledge of oral French in order to be included in an application submitted under the PEQ, by providing an attestation of successful completion of a standardized test, by successfully completing three years of full-time secondary or post-secondary schooling, or by demonstrating that the applicant meets the requirements for practising a profession governed by a professional order in Québec.
• Knowledge of French can no longer be demonstrated by the attestation of successful completion of an advanced intermediate level French course offered in Québec by an educational institution, following the discovery of irregularities in obtaining this type of attestation.

e) New Processing Times

• The processing time for PEQ applications will increase from 20 days to 6 months.

Pilot Project on Recruitment of Orderlies:

• The upcoming implementation of a pilot program will make it possible to reserve up to 550 CSQs annually for the selection of orderlies.
• The text of the pilot project is not yet available.
• It should be mentioned, for information purposes, that the job of an orderly is a Category C job, according to the National Occupational Classification (NOC). As such, orderlies currently working in Quebec will no longer be able, after the coming into force of the new regulation, to apply for permanent selection in the Quebec Experience Program (PEQ).

Pilot Project on Recruitment in the Artificial Intelligence and Information Technology Industry:

• The upcoming implementation of a pilot program will make it possible to reserve up to 550 CSQs annually for the selection of immigrants working specifically in the artificial intelligence and information technology industry.
• The text of the pilot project is not yet available.

Here are the important facts:

• This measure comes into force on June 9^th, 2020;
• Immediate family members include:
  • Spouse or common-law spouse;
  • Dependent child;
  • Parent or step-parent of the Canadian citizen or permanent resident or their spouse or common-law spouse;
  • Guardian.
• A mandatory quarantine period of 14 days applies;
• Family members showing symptoms of Covid-19 will not be allowed to enter Canada.

Please note, however, that restrictions still apply to immediate family members of temporary residents in Canada, such as foreign workers or foreign students. For more information, visit https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-covid19/travel-restrictions-exemptions.html

For the full text of the press release: https://www.canada.ca/en/border-services-agency/news/2020/06/changes-to-travel-restrictions-for-immediate-family-members-of-canadian-citizens-and-permanent-residents.html

The term “contaminated” instantly conjures to mind several frightening images of toxic chemicals and glaring liability. There are several common contaminants that one may recognize such as petroleum hydrocarbons, metals or metalloids, asbestos, and pesticides. However, this is only to name a few among many. Confronted with such a situation, one may wonder how to proceed. Several important steps may be followed to mitigate damages, protect your rights and ensure the situation is not as dire as anticipated. 

Is the Soil Contaminated?

Step 1: Have the soil tested by a professional; this will determine whether the level of contamination exceeds the legal limit.  In Quebec, contamination levels are outlined in the Environment Quality Act¹. This law distinguishes between contamination levels for a commercial and a residential property. Contamination thresholds are considerably more stringent for residential properties when compared to commercial properties². However, zoning and location can play an important role in deciding contamination levels. If a business operates in a residential area, or near a park, or a school, it may be subject to the higher residential standard.

The relevant regulation contains several schedules, which list the various contaminants as well as how much of that particular contaminant is permitted before the soil is considered to be contaminated. Briefly, if the amount of the contaminant exceeds this threshold, then the soil is contaminated.

The Soil is Contaminated How to Proceed?

Step 2: To ensure sufficient protection in the case of contamination, one should immediately contact an attorney to know one’s rights.  It is essential to explore all options with a legal specialist before proceeding with any decontamination. Exceptional circumstances may apply if decontamination is urgent, but generally, it is best practice to identify who is responsible for the contamination and the various actors involved before proceeding. If one does not act prudently and judicially inform the right individuals in a timely manner, one may forfeit their rights to certain legal remedies.

Step 3: While contacting an attorney, it is also important to contact any and all insurance providers to verify whether any applicable policies include coverage for contamination.

Step 4:  Subsequently, one must decide whether to decontaminate and at which moment. Your legal adviser can surely assist you with this decision. In most cases of residential contamination, there is no obligation to decontaminate, even if the threshold limit of contamination is surpassed. Nonetheless, it is recommended to contact the Minister to verify that no special circumstances apply for certain types, or quantities, of contamination. 

Available Recourses

Step 5:  Several legal recourses are available for a commercial or a residential property if the contamination is caused by a third party or if it existed at the time of sale, such as:

- Neighboring Property: If the contamination is directly caused by a neighboring property, a remedy is available against one’s neighbor, whether or not he or she is at fault.

- Latent Defect: a recourse under is available under the legal warranty ifthe contamination meets the criteria for a latent defect. The contamination must be³:

• Serious;
• Above the applicable legal threshold of contamination at the moment of sale;
• Hidden at the time of sale; and
• In commercial matters, the contamination must also prevent the property from being used for its intended purpose to constitute a hidden defect⁴.

- Violation of Public Law: A second legal warranty is availableif the contamination exceeded the threshold amount at the moment of sale, and the seller warranted that the property did not violate any public law.

- Fraud: It is important to note that recourses pertaining to a legal warranty, either for latent defect or the violation of public law, may be limited. This occurs, if the property was sold without any guarantee, or at the risk and peril of the purchaser⁵ However, a limit to any legal warranty will not apply if the seller knew of the contamination and fraudulently concealed this fact. This means that even if one were to purchase at his risk and peril, he may still have a recourse if the seller knew of the contamination prior to the sale.

Conclusion

Dealing with a case of contaminated soil can be complicated, especially when several parties are involved. Moreover, environmental laws are subject to change, thus thresholds levels for contaminants may vary throughout time. Although several recourses are available, it is important to act quickly in identifying contamination and proceed prudently to protect one’s rights.

After seven years of negotiation and despite the recent obstacles faced by Canada and the European Union, once fully ratified, CETA will eventually eliminate 99% of the tariffs between Canada and the European Union. At a time when U.S. trade policy seems poised to potentially take a protectionist turn, the present article will explore not only the opportunities stem- ming from facilitated access to European markets for Canadian companies, but will also examine, though a practical approach, the potential opportunities for U.S. and other foreign investors to use Canada as a springboard into European markets. Finally, it will also look at some of the challenges that Canadian markets may face as a result of this new treaty. Readers are reminded that at the time of the writing of this article, the incoming U.S. administration has indicated that it wishes to renegotiate the North American Free Trade Agreement and that any changes to this agreement could have an effect on the ability of corporations wish- ing to import goods of Canadian origin into the U.S. from Canada under the agreement as it stands currently.
 
OPPORTUNITIES FOR CANADIAN BUSINESSES
REDUCTION IN TARIFFS
According to the government of Canada, tariffs are currently imposed on approxi- mately 75 percent of Canadian goods enter- ing the EU. Upon its entry into force, 98 percent of the tariff lines imposed on Canadian goods by the European Union will be removed, and eventually, over a pe- riod of seven years, another 1% of tariff lines will be removed.
As a result, many Canadian goods will become more competitive in EU markets al- lowing Canadian exporters to have a signif- icant advantage over other exporters that are not eligible to benefit from the tariff re- ductions provided by CETA. For example, maple-syrup producers will see the removal of the 8 percent tariff imposed on Canadian made maple-syrup.

REGULATORY COOPERATION
CETA also provides for greater regula- tory cooperation between Canada and the European Union through the establish- ment of a Regulatory Cooperation Forum. This Forum is established to discuss regula- tory issues that can affect both Canadian and European exporters in order to better develop cooperation in regulatory and pol- icy development processes.
 
TRADE IN SERVICES
According to the Canadian govern- ment, the EU is the largest importer of serv- ices in the world, and in 2015 it  imported
$16.5 billion in services from Canada. With certain exceptions, CETA will cause Canadian services providers to receive the same treatment as EU services providers, thereby making it easier for Canadian serv- ices providers to access European markets. CETA will also establish a streamlined process for the recognition of foreign qual- ifications making it easier for Canadian pro- fessionals to provide services in the EU and have their qualifications recognized.

OPPORTUNITIES FOR U.S. AND FOREIGN INVESTORS
RULES OF ORIGIN
Under CETA’s rules of origin provi- sions a product is deemed to have origi- nated in Canada or the EU, if it has been wholly obtained, produced exclusively from originating materials or has undergone suf- ficient production in Canada or the EU. With respect to what constitutes sufficient production, CETA sets out a product-spe- cific rule of origin which stipulates the min- imum amount of production required on non-originating material for the resulting product to achieve originating status.
For example, in the automobile indus- try the rules of origin provide that Canadian
 

 
automakers will be able to export up to 100,000 vehicles per year duty free provided that the value of all non-originating materi- als used does not exceed 70 per cent of the transaction value or ex-works price, or 80 per cent of the net cost of the vehicle. After this initial quota is met, the value of all non- originating materials used must not exceed 50 per cent of the transaction value or ex- works price of the vehicle.
Combined with the investment provi- sions set-out below, the rules of origin under CETA provide interesting opportunities for
U.S. companies that are willing to set up manufacturing facilities or subsidiaries in Canada. In doing so, they will not only be able to benefit from CETA but also from ex- isting trade agreements between Canada and the United States in order to get their products into both European and North American markets duty free.

FOREIGN INVESTMENT
CETA has very comprehensive investment provisions that limit the imposition market ac- cess restrictions on investors and companies and provide certain protections for investors.
Examples of the new investment provi- sions included in CETA are:
Market Access
Under CETA, Canada and the EU can- not adopt or develop limitations on the par- ticipation of foreign capital in terms of a maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment nor can they impose limitations that restrict or re- quire specific types of legal entities through which a company may carry out an eco- nomic activity.

Performance  Requirements
Canada and the EU cannot impose or enforce requirements with regards to an in- vestment that would require a certain level or percentage of export of a good or service or impose a preference to goods produced in one party’s territory as opposed to goods produced in the other parties’ territory.

Non Discriminatory Treatment
Canada and the EU must treat each other’s investors no less favorably than they treat their own or other third country in- vestors in their territory. Additionally, Canada and the EU may not require that corporations appoint to senior manage- ment or board of director positions, natural persons  of  any  particular  nationality  in
 
order to benefit from the provisions of CETA. This is particularly interesting   for
U.S. companies who wish to set up sub- sidiaries or facilities in Canada and wish to have the senior management and board of director positions be filled by U.S. citizens.

Investment Protection
CETA also provides certain protection for investors, preventing Canada and the EU from expropriating or nationalizing in- vestments except under certain situations and following strict guidelines. It prohibits restrictions and delays in transfers relating to investments made and provides investors with access to an independent tribunal, with the power to award compensation, in situa- tions where investors feel they have suffered damages as a result of breaches in CETA’s investment provisions.

Easing of Investment Restrictions
As a result of CETA, the net benefit re- view threshold under the Investment Canada Act will be raised from $600 million to $1.5 billion, thus simplifying the acquisi- tion process for foreign investors wishing to purchase large Canadian companies.

PRACTICAL APPLICATION
Concretely, for U.S. and other foreign investors, the existence of CETA means that Canada is now an even better springboard for companies seeking access to European markets. By prohibiting restrictions based on the presence of foreign capital and for- eign participation in investments, U.S. and foreign investors can easily take advantage of the reduction of trade restrictions be- tween Canada and the EU, through invest- ment in Canadian companies or more directly through the creation of subsidiaries in Canada. U.S. companies may also want to consider manufacturing products in Canada in order to use the same produc- tion center to take advantage of both NAFTA and CETA.

POTENTIAL CHALLENGES FACED BY CANADIAN MARKETS
INCREASED COMPETITION FOR  CANADIAN MARKETS
One of the potential challenges faced by Canadian markets as a result of CETA is the increase in competition for smaller busi- nesses and producers. Under CETA, Europe will be able to export almost 92% of its agricultural and food products to Canada    duty    free.    This    has   certain
 
Canadian producers worried about the po- tential for competition and how their prod- ucts will fare if there is an influx of European goods into the Canadian market. For example, Quebec’s cheese producers are worried about their products as a bilat- eral quota of 17,700 pounds of cheese will be imported under CETA.2

DISPUTE RESOLUTION PROVISIONS OF CETA
CETA provides for the creation of an independent tribunal for the resolution of disputes, including the power to award com- pensation for damages. The concern is that the ability of companies to sue governments under CETA, may create a situation where companies or investors can dictate govern- ment policy changes or create an atmos- phere in which governments will find it difficult to enact legitimate regulatory or policy changes for fear of incurring liability.

CONCLUSION
Despite its opponents and the poten- tial difficulties that it may create for some industries and businesses, there is no doubt that CETA opens up new opportunities in Canada for U.S. and foreign investors, espe- cially in a time when some other govern- ments are turning to more protectionist policies and outlooks. In a world in which there is talk of building walls, Canada is building bridges, and it remains to be seen how much traffic there will be.
 

The initial attack of the “WannaCry” ransomware paralyzed computers in Germany’s national railway and Britain’s hospital network before spreading to computers across the world. It was reported that in China that 15% of the internet protocol addresses were attacked and there were collectively over 200,000 victims across the world.¹ 

The ransomware exploited a vulnerability in Microsoft Windows Servicer Message Block (SMB) protocol that allowed it to spread to any connected PC that had not been updated to protect against the attack. Once infected, the ransomware encrypted the data on the PC and prevented users from accessing it unless they paid a ransom. 

Ransomware is not new, and it seems that the method that was used to exploit the vulnerability in Microsoft Windows had actually been developed previously by the NSA.  Microsoft had even released a security patch last March to protect against the vulnerability the ransomware exploited, however, anyone who did not update their system, or had an unsupported system (ex. Windows XP), remained vulnerable.

While the attack was inadvertently stopped over the weekend by a 22-year-old cyber-security researcher , the aftereffects of the attack are still being felt by those unfortunate enough to have been affected. Friday’s attack shows the importance of being prepared for a cyber-attack, as it is not only frustrating to be a victim, it can also have important legal implications.

Most of those affected by the WannaCry virus were businesses and public institutions – organizations that quite often hold vast amount of personal private data. In Canada, businesses that hold private data have certain legal requirements with which they must comply. This involves taking certain precautions and adopting certain security measures in order to deter unauthorized access to the data it holds. If an organization does not comply and suffers from unauthorized access to its data, it can face severe legal consequences. Furthermore, these obligations do not only apply to the prevention of unauthorized access to data, but also the way a company handles, transfers and stores the personal information it stores. For example, if data is entrusted to a third-party (ex. stored in the cloud), businesses have additional obligations to ensure that their hosting providers offer similar protections to the personal data.

While it seems that Canadians were largely spared from the effects of the WannaCry attack, it is a perfect opportunity for businesses to reflect on their data handling and cyber-security practices. It is no longer a question of if a cyber-attack will happen and businesses need to be prepared and ensure they already have proper practices in place that comply with their legal obligations. This will help mitigate potential damages resulting from a cyber-attack and help the recovery process. 
 

IRCC update on travel in Canada effective March 23, 2020.

Workers, students and permanent residents whose applications have been approved, but who have not yet arrived, should not travel. We have announced exemptions, but they are not in place. Travel restrictions are still in place for these groups.

Only Canadian citizens and permanent residents of Canada, as well as certain foreigners travelling from the United States, who have lived in the U.S. for at least 14 days and are symptom-free, may enter Canada by air at this time.

https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-special-measures.html

This update follows the restrictions regarding the travel ban imposed by the Government of Canada on March 20, 2020.

Please find the list of the impacted temporary residents below:

• Temporary Foreign Workers;
• Seasonal Agricultural Workers;
• Workers in the fish and seafood industry;
• Caregivers;
• International Students (with approved study permits or valid study permits);
• Permanent Resident applicants for which the permanent residency application has been approved but had not yet travelled to Canada.

Attention: The aforementioned people exempted from the travel ban must not yet enter Canada. Further announcements are expected at the beginning of the coming week regarding the matter.

The travels of the people mentioned above will thus be considered essential travel in regards to the new travel ban into Canada.

Please note, however, that all travellers arriving from abroad must undertake health screening protocols before their arrival into Canada and must isolate during 14 days following their arrival to Canada. Companies will be responsible for enforcing the 14-day isolation period among seasonal agricultural workers who will join their business in the coming weeks.

The aforementioned persons are therefore added to the pre-existing exemptions to the travel ban announced at the beginning of the week, as listed below:

• Foreign nationals travelling at the invitation of the Canadian government for a purpose related to the containment of COVID-19;
• Close family members of Canadian citizens;
• Close family members of permanent residents;
• A person who is authorized, in writing, by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members;
• A person registered as an Indian under the Indian Act;
• Accredited diplomats and family members (including NATO, those under the United Nations Headquarters Agreement, other organizations);
• Air crew;
• Any foreign national, or group of foreign nationals, whose entry would in the national interest, as determined by the Minister of Foreign Affairs, the Minister of Immigration, Refugees and Citizenship, the Minister of Public Safety;
• Members of the Canadian military, visiting forces and their family members;
• Transiting passengers.

Recruitment relief regarding the Labour Market Impact Assessments (LMIA): The required 2-week recruitment period in the agriculture and food processing industry will be waived for the next 6 months. This temporary measure will reduce the processing time for this type of application.

Temporary Foreign Workers in the low-wage stream: The maximum duration allowed will go from 1 year to 2 years.

Many businesses were awaiting temporary foreign workers to face the new challenges and the growing pressures on our agricultural industry will definitely require additional Seasonal Agricultural Workers this year. Our team remains available to these businesses to help ease the process of obtaining the required work permits for their employees.

Please do not hesitate to one of our team members for any additional information.

Just recently it appeared that Canada would be left out of a new agreement between the United States and Mexico, however, late in the evening on September 30th all sides reached a deal on a new agreement entitled the United States-Mexico-Canada Agreement (USMCA).

The new USMCA, which must still be approved by the legislatures in each country and the pundits and analysts are still sifting through the details to determine what the changes will mean for Canada’s dairy farmers and our auto industry. However, at least one thing that will remain the same will be the provisions permitting temporary entry for certain business persons.

Under NAFTA certain persons from Canada, the United States and Mexico are eligible for visas under a streamlined process to facilitate “temporary entry on a reciprocal basis” to each country.¹ The three main categories of persons eligible for facilitated visas under NAFTA are Business Visitors, Traders and Investors, and Intra-Company Transferees.²

The facilitated entry for these individuals means easier access to foreign markets for Canadian businesses, for example, being able to provide on site after sales service to US or Mexican businesses or fulfill contractual obligations in those countries. For businesses with offices or affiliates in both Canada, the United States, or Mexico this also means greater ease of transferring employees with specialized knowledge from an office in one country to another.

The facilitated visa process also benefits certain markets and industries in each country as well, and not just individual businesses. For example, Canadian nurses quite frequently work in the United States as a result of the immigration provisions under NAFTA, providing health care services in areas where access to health care professionals is more difficult.³

Therefore, it is good news for Canadians and Canadian businesses that the full text of the USMCA released on Sunday appears to have retained the provisions governing business immigration under NAFTA. Persons falling into the three categories discussed above will still be able to apply for visas under the same criteria under similar temporary entry provisions⁴ and as a result Canadians will continue to be able to benefit from facilitated access to the United States and Mexican labour markets and Canadian businesses will continue to be able fill specific needs with individuals from those labour markets.

Should you have any questions regarding the visa process under new USMCA please do not hesitate to contact us.

While restrictions have made it more difficult for certain businesses to operate, trade and commerce has certainly not slowed down as a result of COVID-19.

Furthermore, with countries are progressing with vaccination efforts and relaxing of public health restrictions, more and more businesses are moving ahead with plans that have up until now been put on hold. For those involved in cross-border trade and services this can mean finalizing acquisitions, establishing new supplier and customer relationships, and reopening certain markets.

As travel restrictions have been ever changing since the beginning of the COVID-19 pandemic, in the context described above, they can be even more confusing. On one hand, there is light at the end of the tunnel for business travel, and on the other, business travellers must still be aware that there are strict regulations imposed by the Canadian government related to such travel.

In this context, this article will address below some of the most frequent questions asked by our clients. Note that this article does not address all the restrictions and exemptions in place and is only meant to be an overview.

1. I work for a business in an essential industry. A business trip is required in the course of finalizing a due diligence related to an acquisition, finalizing an investment or securing a new customer. Will I be subject to the quarantine obligations upon my return?

This is a very important question, as we have seen a general misconception that all persons working for, or involved in, essential industries are exempt from quarantine obligations upon their return to Canada.

Unfortunately, as mentioned above, this is a misconception. While there is an exemption to certain quarantine obligations upon their return, this only applies to a small category of precisely defined individuals and occupations.

For example, a technician of a Canadian company who had to travel to the United States to repair the equipment of its cross-border affiliate, would be exempt from mandatory quarantine if upon his or her return had to maintain or repair the equipment of the Canadian business within the 14 day period upon their return.

An upper management team of a food business visiting a cross-border customer in order to secure a new market and supply chain in the food industry, would not be exempt from the mandatory quarantine obligations upon their return to Canada.

2. Will I have to quarantine at a hotel upon my return to Canada?

The obligation to quarantine at a government-authorized hotel depends on how a person is arriving in Canada.

Presently the requirement for individuals to book a 3-night stay at a government authorized hotel during the 14-day quarantine period applies only to individuals flying to Canada.

For those arriving in Canada by land, there is no obligation to book or remain at a government-authorized hotel for 3-nights. All other quarantine obligations do however remain in place for those do not exempt.

Therefore, if cross-border travel is required and a mandatory 3-night hotel stay is prohibitive, individuals could consider returning to Canada by land.

3. I have temporary foreign workers arriving to work at my business. Are they exempt from the quarantine obligations?

The mandatory quarantine obligations apply to all individuals arriving in Canada (unless specifically exempt) regardless of their status. There are currently no exemptions to the mandatory quarantine requirements for temporary foreign workers arriving in Canada, except for certain occupations in the agri-food industry which are exempt from the mandatory 3-night hotel stay for individuals flying to Canada.

Therefore, employers should plan for the mandatory quarantine of their temporary foreign workers upon arrival in Canada.

Conclusion

The rules relating to foreign travel and returning to Canada are ever changing. In the context of re-opening and relaxing of certain local restrictions, it is important to keep in mind that many federal travel restrictions and requirements remain in place.

If you have to travel abroad, or have clients who must travel to Canada, it is important to plan ahead, be aware of the intricacies relating to travel exemptions, and in the case of doubt, seek guidance on the restrictions that may be imposed upon entry into Canada.

Our immigration team is here to help and answer your questions related to travel restrictions and immigration obligations resulting from COVID-19. Our networks of affiliated firms throughout the world are also at your service and allow us to offer you integrated support for your international projects.

June 1, 2021

Since then, employees have been required to wear a mask or a face covering to circulate in the common areas of their workplace, but could until now remove their mask or face covering if they worked alone in a closed office, if they were able to keep a distance of at least two (2) meters from others when sitting at their work station or, in the alternative, were separated by a physical barrier (such as a panel or plexiglass) from any other person not occupying the same private residence as them.

On April 7, 2021, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (hereinafter “CNESST”) announced a new measure that will likely have an impact on several employers of the province : CNESST will henceforth require that employees wear a medical mask or a mask certified by the Bureau de normalisation du Québec (hereinafter “BNQ”) at all times in the workplace. This new measure is in line with the recommendation made by the Institut national de santé publique du Québec on March 30 pertaining to the wearing of masks at all times in the workplace, and has also been implemented in the context of the spread of COVID-19 variants.

CNESST highlighted in the notice (currently only available in French) it issued that employers will have to implement this new additional measure as of April 8, 2021, in addition to other recommended measures such as physical distancing of at least two (2) meters and maintaining physical barriers between employees in place.

Thus, employees will be required to wear a medical mask or a mask certified by BNQ when seated at their workstation, even if they can respect physical distancing measures or are separated from their co-workers by a physical barrier.

Employees who work outdoors will have to wear a medical mask or a mask certified by BNQ if they cannot keep a distance of at least two (2) metres from others.

As medical masks or masks certified by BNQ are considered personal protective equipment made mandatory by CNESST, employers must provide, at their own expense, such equipment to the employees pursuant to the Act Respecting Occupational Health and Safety.

For more information on specific occupational health and safety measures regarding the use by employees in the workplace of medical masks or masks certified by BNQ, we recommend employers consult the COVID-19 Toolkits prepared and published by CNESST.

Although the vaccination rollout is still in its early stages, several people are questioning the risks associated with COVID-19 vaccines and whether they should in fact get vaccinated. Employers are now faced with a difficult question: Can they require their employees to get vaccinated against COVID-19?

Although no decision has yet been rendered on mandatory vaccination policies in the context of COVID-19, some well-recognized legal principles regarding consent to care and the right to personal integrity should be considered in answering this very topical question.

Under the Act Respecting Industrial Accidents and Occupational Diseases (hereinafter the “Act”), the employer must, on the one hand, take the necessary measures to protect the health and ensure the safety and physical integrity of its employees, and, on the other hand, employees must reciprocally take the necessary means to protect their health and safety at work. In addition, employees are also required to participate in the identification and elimination of risks in the workplace.

It is also important to consider the provisions of the Quebec Charter of Human Rights and Freedoms (hereinafter the “Charter”) and the Civil Code of Québec (hereinafter the “Code”) as they relate to human rights in order to identify the legal issues pertaining to this question. As such, the Charter states that every human being has the right to life, security, integrity, and personal freedom. The Charter also enshrines the principles of the right to freedom of religion, dignity, and privacy. The Code, for its part, provides that no one may be made to undergo care of any nature without their consent, namely examination, specimen taking, treatment, or any other act.

Considering the primacy of the Charter over other Quebec laws, it is likely that individual rights protected by the Charter will supersede employers’ general health and safety obligations. Notwithstanding specific exceptions set out by case law in similar matters, but obviously in a context quite different from that of COVID-19, an employer could not require its employees to get vaccinated, in accordance with the applicable legal principles mentioned above.

Given that the provincial government has declared a public health emergency, it could order compulsory vaccination of all or a portion of the population in accordance with the Public Health Act.

Currently, there is no clear precedent for mandatory workplace vaccination in the context of the COVID-19 pandemic.

However, there exists some case law in Canada regarding mandatory vaccination policies in the context of influenza. As such, certain employers in the health care sector implemented policies requiring workers to be vaccinated against the flu in order to minimize the spread of the virus in the workplace. Unions representing these workers challenged these policies and several labour arbitration decisions followed on whether these policies violated the collective agreement. However, the decisions rendered were divided and did not provide a clear answer to this question.

In Québec, an employer’s decision[1] to remove from the workplace and suspend without pay an employee, who worked in a long-term care facility and who refused to be vaccinated, was upheld by a grievance arbitrator. After balancing the interests of employees and the employer’s objective, the grievance arbitrator concluded that an employer, who can demonstrate that the vaccination of employees is a bona fide occupational requirement due to frequent and repeated contact with a vulnerable clientele, for example, could impose administrative measures on employees who refuse to be vaccinated.

Thus, an employer could assert that vaccination against COVID-19 is a bona fide occupational requirement if it can demonstrate the health and safety reasons justifying such a measure in the specific context of its activities. As a result, employees who refuse to be vaccinated, notwithstanding that vaccination is made to be a requirement for employment or continued employment, could face administrative measures, such as a suspension without pay.

It appears unlikely that governments would order compulsory vaccination of the entire population. As is the case with most legal issues raised by COVID-19, we will need to await the decisions of administrative tribunals or judicial courts to better understand the context in which an employer could require employees to be vaccinated against COVID-19.

In the meantime, we recommend that employers adopt all measures recommended by public health authorities to provide a safe workplace, and strongly encourage employees to be vaccinated to reduce the spread of COVID-19 in the workplace. 

While the governments of Quebec and Canada have already announced a series of measures to slow the spread of the virus, what measures can or should be put in place by employers?

Here are answers to the most common questions raised by employers in relation to the management of the COVID-19 pandemic.

1. What are the employer's obligations in the context of managing the COVID-19 pandemic?

The employer must take the appropriate measures to protect the health, safety and physical well-being of its workers, particularly in the context of the spread of contagious viruses such as COVID-19. The employer must provide a hazard-free work environment and remain informed as to the health of its employees.

In order to meet these obligations, the employer should implement preventive measures in the workplace, including those recommended by governmental authorities.

2. What health measures should an employer put into place within its organization to protect its employees?

Amongst other things, the employer should:

• Ensure that employees do not report to work if they have symptoms of fever, cough or breathing difficulties;
• Question an employee who has flu-related symptoms;
• Encourage employees and visitors to adopt proper hygiene practices. For example, an employer should post signs demonstrating proper hand washing technique, encourage employees and visitors to cough or sneeze into their elbow and to avoid touching their eyes, nose or mouth with unwashed hands;
• Provide employees and visitors with the necessary means to promote good hygiene, such as hand sanitizer and other disinfectant products;
• Arrange for more frequent cleaning of potentially contaminated surfaces, especially in common areas;
• Take appropriate action if employees or visitors are symptomatic, for example, by restricting access to the workplace or specific areas;
• Reserve their right to question symptomatic employees or visitors;
• Demonstrate their proactiveness by detailing the measures taken to prevent the spread of COVID-19, including all limitations to access to the workplace, and post said measures at the various entrances to the workplace;
• Recommend that employees avoid any physical contact with others. 

3. What strategies should an employer put in place to reduce the risk of contagion and to accommodate its employees?

The employer should ensure that clear policies are put in place to address COVID-19, particularly policies on workplace behaviour, absenteeism, telework and travel.

When possible, the employer should encourage telework in order to limit the risk of spreading the virus. As of March 12^th, 2020, governmental authorities have encouraged that employers adopt this practice considering the situation surrounding COVID-19.

The employer is encouraged to limit or even cancel meetings, gatherings, social events or other activities where the presence of employees is required. The use of communication technologies such as Skype should be a preferred alternative.

4. What information can an employer request from its employees in order to assess the risks of contagion?

In order to assess the risks and ensure appropriate follow-up of the situation, the employer can ask its employees if they have travelled outside of Canada in the last few weeks and, in the case of an affirmative answer, their destination and date of return. The employer can also require to be informed of any upcoming foreign travel, regardless of the destination.

The employer can also question their employees to find out if they have symptoms associated with COVID-19 or if they think they have been in contact with a person suffering from or showing symptoms of COVID-19.

Once the information has been obtained, the employer should ensure appropriate follow-up with its employees, as symptoms of COVID-19 can take up to fourteen (14) days to appear.

5. Can an employer require an employee returning from a trip abroad to isolate themselves for fourteen (14) days?

An employer may impose a period of isolation on an employee if there are reasonable grounds to do so, in accordance with the employer’s obligation to protect the health and safety of its employees. 

Governmental authorities recommend a fourteen (14) day period of self-isolation following any foreign travel. Should an employer impose a fourteen (14) day period of isolation on a foreign worker who arrives in Canada under an immigration program and who must begin their employment with the organization?

According to the directives announced by the government, the worker should be placed in isolation for fourteen (14) days upon arrival. Directives issued by government authorities should be followed by the employer to limit the risk of spreading COVID-19 within the organization. In this context, there may be certain rules of compliance to follow regarding the payment of the temporary foreign worker's salary during the isolation period, depending on the immigration program under which the worker was hired. For example, if you have hired a foreign worker under the Temporary Foreign Worker Program, it is recommended as a best practice to maintain the worker's remuneration during the period of isolation, so as not to pose any problems in terms of the employer's compliance with the program's rules should there be any future investigation into the matter.

6. How should an employer manage the return of an employee who has travelled to, and returned from, a risk area?

The employer should follow the recommendations of governmental authorities in this regard and ask the employee returning from a trip outside Canada to follow the fourteen (14) day voluntary isolation protocol currently in place.

7. How should the employer respond if an employee displays symptoms of COVID-19 in the workplace?

The employer should promptly isolate the employee from the workplace, impose a fourteen (14) day isolation period and suggest that the employee seek medical attention, if necessary.

It should also be noted that the Collège des médécins (College of Physicians) announced that going forward, nurses are authorized to issue a note to those who test positive for COVID-19 to be off work for fourteen (14) days.

8. Does an employer remain responsible for the remuneration of an employee who is absent due to preventative isolation?

The choice of whether to pay an employee who is absent due to preventative isolation varies from one employer to another and largely depends on internal policies, a collective agreement, a group insurance plan and other applicable measures within the organization. In some cases, the employee may also have access to group disability insurance or employment insurance.

On March 13^th, 2020, the Minister of Labour announced that measures would be announced in the upcoming days to support private companies whose employees will have to be absent, as well as to support employees who will be absent without pay.

9. Does an employer remain responsible for the remuneration of an absent employee who has contracted COVID-19 or who is showing symptoms?

As previously mentioned, remuneration will vary from employer to employer and depends on, amongst other things, existing working conditions. In the case of COVID-19, the absence will be considered like any other absence due to illness.

10. In the event that an employee must be absent from work because of school and daycare closures, and has already taken the ten (10) days provided for in the Act respecting labour standards for family commitments or that their absence exceeds them, can the employer refuse the employee’s absence?

Given the present exceptional circumstances, even if the number of absences taken by an employee exceeds the number of absences provided for in the Act, the employer should remain very open and understanding before refusing any leave and demanding a return to work. We still believe that an employer can question the employee about the actual reasons for the absence and, in the case of childcare, about looking into alternative means, but flexibility is essential. Each case must be carefully considered before refusing requests for any leave beyond what is provided for by the Act.

11. What financial measures are being put in place by governmental authorities to help employers and employees deal with the consequences of the spread of COVID-19?

The Government of Quebec has invited employers to be more accommodating, particularly in light of the numerous requests for absences that will likely occur in the upcoming weeks. Government assistance is also expected to be announced shortly, so the situation must continuously be monitored.

At the federal level, the government has relaxed the rules related to employment insurance in order to help Canadians affected by COVID-19 or placed in isolation. As a result, employees who are unable to work due to illness or quarantine will be able to receive EI sickness benefits. In the case of these claims, the one (1) week waiting period is waived and applications should be processed on a priority basis.

Other measures are also being considered, specifically to help people who would not normally be eligible for EI sickness benefits. Seeing as the situation is evolving rapidly, employers should remain informed and closely monitor new developments.

12. Can an employee benefit from the coverage provided for in the group insurance contract should they need to absent themselves due to COVID-19?

Some insurance companies have published specific information related to COVID-19. With respect to group insurance, an employee who is absent from work after having contracted COVID-19 should be able to benefit from the short-term disability clauses provided for in the insurance contract.

As for a person who is placed in isolation for a certain period of time, the person could potentially be covered by their short-term disability insurance coverage. This will vary according to each group insurance policy and will have to be verified on a case-by-case basis.

In order to be proactive, we therefore suggest that employers with group insurance policies validate the short-term disability coverage offered by the insurer to support employees.

13. What must an employer indicate on the Record of Employment form for an employee to receive EI benefits in relation to COVID-19?

Keep in mind that governmental authorities may provide specific instructions on the code to be used and it is therefore important that employers inform themselves prior to issuing the form. Since no such instructions exist to our knowledge as of today, we recommend the following:

A) if the employee is ill code D;

B) if the employee is absent due to a period of isolation code K;

C) in the case of a lay-off: code A.

14. Can an employee refuse to work because of COVID-19?

The Act respecting occupational health and safety provides that an employee may refuse to report to work should they have reasonable grounds to believe that the performance of their work would expose them to a danger to their health, safety or physical well-being or may also expose another person to a similar danger. In such situations, the employee's wages should continue to be paid, and the employee should not be subject to any measures.

However, an employee may not refuse to report to work simply out of fear of contamination if their work environment does not facilitate contamination and if the employer complies with all the preventive measures recommended by governmental authorities. In a case of an unjustified refusal, the usual rules of unjustified absence apply.

15. What restrictions can an employer impose on its employees regarding future foreign travel?

The employer should cancel all business trips of their employees unless they are necessary.

While an employer cannot prohibit personal travel, employees can be required to disclose whether they plan to travel outside of Canada. The employer should strongly encourage employees to remain in the country and advise employees that should they decide to travel abroad, there are significant risks to their ability to return home or return to work. Employees should also be informed that they will be subject to a period of mandatory isolation upon their return, in accordance with government recommendations in effect at the present time.

It should be noted that Canadian governmental authorities have recommended that everyone avoid unnecessary travel abroad.

For any additional questions and for advice on how to properly manage the current COVID-19 situation, please contact our Labour and Employment Law team who shall be monitoring any and all developments for you and your business.

Prior to this date, recreational cannabis remains illegal and subject to criminal prosecution. Medicinal cannabis will continue to be governed by a separate legislative framework.

Bill C-45 has legal and operational impacts for foreign businesses operating in Canada, especially in the areas of real estate, insurance, commerce, labor relations, rules of the road and criminal liability. Foreign businesses will need to understand and to adapt themselves not only to federal but also to provincial, territorial and municipal regulations, which may be quite different throughout Canada. They also need to be aware that their U.S., South American or European experience of cannabis legalization will not necessarily translate into the Canadian landscape.

CONTEXT

The legalization of recreational cannabis was an electoral promise made in 2015 by the Liberal Party of current Prime Minister Justin Trudeau, with the twin goals of preventing access to cannabis by youth and of depriving criminals and organized crime of the profits derived from its sale.

While some businesses, producers, distributors, municipalities, investors and consumers are thrilled by the impending legalization, this enthusiasm is not universal and there are other businesses, municipalities, employers, unions, organizations and individuals (parents, psychiatrists, teachers) that are worried about anticipated difficulties.

LEGALIZATION OR PARTIAL DECRIMINALIZATION?

Beginning on October 17, 2018, dried and fresh cannabis, cannabis oil, and cannabis plants and seeds will be publicly available in a legal market. Edibles containing cannabis and cannabis concentrates are likely to be legalized at a later date, possibly in 2019, unless the Canadian federal government legalizes them earlier; currently they remain illegal.

Once legalization occurs, adult individuals at or over the minimal age limit chosen by each province or territory (currently 18 or 19 years of age, depending on the juris- diction), may legally purchase, grow and possess a limited quantity of cannabis.

Generally, eligible individuals will be legally able to possess up to 30 grams of dried cannabis in public; however, under Schedule 3 of Bill C-45 there are equivalent quantities for each class of cannabis, which may complicate the understanding of this threshold, beyond which possession will remain a criminal offense:

When it comes to growing recreational cannabis, eligible individuals may grow up to four plants per dwelling-house. However, at the time of the writing of this article, two Canadian provinces, Quebec and Manitoba, have indicated that they want to enact a more severe rule or totally prohibit home growth, which is likely to bring them into conflict with the Canadian government.

When examined more closely, it becomes clear that the “legalization” of recreational cannabis in Canada is actually a partial decriminalization, since the possession, sale, distribution, production (including alteration and cultivation), importation and exportation of cannabis outside or in excess of the restrictive legal framework created by Bill C-45, remain subject to criminal prosecution.

Business owners should be aware that, unless authorized under the rules enacted in Bill C-45, organizations, such as corporations, municipalities and trade unions, to name a few, are prohibited from possessing and distributing cannabis. Canadian criminal law provides specific rules for the criminal liability of organizations through individuals. For instance, senior officers, which may include an intermediate manager who is responsible for managing an important aspect of the organization’s activities, may incur the organization’s criminal liability through possession or distribution of cannabis themselves or through other agents of the organization, where their intent is to benefit the organization. The fines for organizations illegally possessing or distributing cannabis can be up to $100 000 for an offense punishable on summary conviction, or a discretionary amount, which may be higher, if the company is found guilty of an indictable offense.

DIFFERENT RULES FOR DIFFERENT JURISDICTIONS

As touched on above, the distribution and sale of recreational cannabis, along with its consumption and possession, may be regulated in some respects by Canadian provinces and territories, and peripherally by municipalities, as long as their regulations are compliant with Canada’s federal rules and do not exceed their respective jurisdictions. At the provincial and territorial level, this will create major differences with regard to the:

• retail sale of Cannabis (i.e. though public monopolies or private entities);
• legal age of consumption;
• places where use is forbidden;
• scope of new obligations (i.e. preventive measures regarding smoking, signage, storage, etc.) and associated fines; and
• cannabis-related services, objects or activities, such as promotional items, marketing, cannabis coffee shops, etc.

In summary, criminal offenses will be the same throughout Canada, however, provincial/territorial and municipal regulations will vary such that behavior that is perfectly legal in one province may be prohibited in another. It will be critical for business owners that operate in multiple Canadian jurisdictions to realize that there will be variations between jurisdictions and to be aware of what these are and how they might impact their business.

CANADA VERSUS THE U.S.

For businesses operating in Canada and the United States, there are important differences between the cannabis-related rules in the two countries. First of all, U.S. federal law prohibits the production, distribution, sale and possession of cannabis in any form, since cannabis is listed as a controlled substance under Schedule I of the Controlled Substances Act. The U.S. federal Government tolerates a different state approach regarding cannabis, where the state has passed a law to this effect.¹ Secondly, the business model used by these States is a model where the cannabis production and distribution system is based on private industry looking for growth and profits.² As discussed above, cannabis will no longer be completely illegal in Canada, however there will be a myriad of rules and prohibitions that will apply to limit the promotion of recreational cannabis, so as to limit the profitability to some degree. Finally, the guidelines for recreational cannabis use will also be different (for example, the legal minimum age and the possession limits). In general terms, in U.S. states allowing recreational cannabis use, the legal minimum age is 21 years old and, except for certain exceptions, legal possession is limited to 1 oz (28.35 grams).

DRUG TESTING EMPLOYEES

The principal rules on cannabis drug testing by employers are currently similar throughout Canada, even though they are regulated separately by each Canadian province or territory. Generally speaking, since a 2013 Supreme Court of Canada decision, the Canadian rules regarding mandatory random or systematic drug tests by employers are very severe, requiring strong evidence of increased safety risks, such as evidence of a general problem with substance abuse in the workplace. This burden is difficult to achieve. On a more positive note, it is possible to conduct individual tests, which are subject to different rules, following valid consent or the occurrence of one of the events recognized by Canadian law as lawful justification for testing. Although this may vary on a case-by-case basis, the validity of individual tests is generally recognized in the following situations:

• if there is reasonable cause to suspect the employee of drug use in the workplace;
• after direct involvement in a work-related accident or incident that is not explained otherwise after investigation; or
• as part of a monitoring program for any employee returning to work following voluntary treatment for substance abuse.

RIGHT REFLEXES AND PREPARATION

Foreign businesses and their lawyers need to be aware of the changes being enacted to legalize recreational cannabis and to start their preparation as soon as possible. These steps may include, initially, gathering legal and medical information, taking and affirming a clear position, drafting a clear and complete policy, implementing appropriate internal and external procedures, training of managers, and meeting with employees to communicate the organization’s policy, as well as explaining the situation and raising awareness. Some businesses will also have obligations vis-à-vis their customers or other people located on their premises or nearby.

In the end, it is always better to set expectations beforehand and to clarify what is acceptable conduct before the occurrence of a problem. Change is coming, and you need to lead from the front!

This article was submitted for publication on June 26, 2018. and was current as of that date.

¹National institute of Public Health, Public health ex- pertise and reference centre, « Jurisdictions that have legalized  cannabis  »,  online:  <https://www.inspq. qc.ca/dossiers/cannabis/juridictions-ayant-legalise- le-cannabis> (consulted on June 29, 2018).

²Ibid.

After seven years of negotiation and despite the recent obstacles faced by Canada and the European Union, once fully ratified, CETA will eventually eliminate 99% of the tariffs between Canada and the European Union. At a time when U.S. trade policy seems poised to potentially take a protectionist turn, the present article will explore not only the opportunities stem- ming from facilitated access to European markets for Canadian companies, but will also examine, though a practical approach, the potential opportunities for U.S. and other foreign investors to use Canada as a springboard into European markets. Finally, it will also look at some of the challenges that Canadian markets may face as a result of this new treaty. Readers are reminded that at the time of the writing of this article, the incoming U.S. administration has indicated that it wishes to renegotiate the North American Free Trade Agreement and that any changes to this agreement could have an effect on the ability of corporations wish- ing to import goods of Canadian origin into the U.S. from Canada under the agreement as it stands currently.
 
OPPORTUNITIES FOR CANADIAN BUSINESSES
REDUCTION IN TARIFFS
According to the government of Canada, tariffs are currently imposed on approxi- mately 75 percent of Canadian goods enter- ing the EU. Upon its entry into force, 98 percent of the tariff lines imposed on Canadian goods by the European Union will be removed, and eventually, over a pe- riod of seven years, another 1% of tariff lines will be removed.
As a result, many Canadian goods will become more competitive in EU markets al- lowing Canadian exporters to have a signif- icant advantage over other exporters that are not eligible to benefit from the tariff re- ductions provided by CETA. For example, maple-syrup producers will see the removal of the 8 percent tariff imposed on Canadian made maple-syrup.

REGULATORY COOPERATION
CETA also provides for greater regula- tory cooperation between Canada and the European Union through the establish- ment of a Regulatory Cooperation Forum. This Forum is established to discuss regula- tory issues that can affect both Canadian and European exporters in order to better develop cooperation in regulatory and pol- icy development processes.
 
TRADE IN SERVICES
According to the Canadian govern- ment, the EU is the largest importer of serv- ices in the world, and in 2015 it  imported
$16.5 billion in services from Canada. With certain exceptions, CETA will cause Canadian services providers to receive the same treatment as EU services providers, thereby making it easier for Canadian serv- ices providers to access European markets. CETA will also establish a streamlined process for the recognition of foreign qual- ifications making it easier for Canadian pro- fessionals to provide services in the EU and have their qualifications recognized.

OPPORTUNITIES FOR U.S. AND FOREIGN INVESTORS
RULES OF ORIGIN
Under CETA’s rules of origin provi- sions a product is deemed to have origi- nated in Canada or the EU, if it has been wholly obtained, produced exclusively from originating materials or has undergone suf- ficient production in Canada or the EU. With respect to what constitutes sufficient production, CETA sets out a product-spe- cific rule of origin which stipulates the min- imum amount of production required on non-originating material for the resulting product to achieve originating status.
For example, in the automobile indus- try the rules of origin provide that Canadian
 

 
automakers will be able to export up to 100,000 vehicles per year duty free provided that the value of all non-originating materi- als used does not exceed 70 per cent of the transaction value or ex-works price, or 80 per cent of the net cost of the vehicle. After this initial quota is met, the value of all non- originating materials used must not exceed 50 per cent of the transaction value or ex- works price of the vehicle.
Combined with the investment provi- sions set-out below, the rules of origin under CETA provide interesting opportunities for
U.S. companies that are willing to set up manufacturing facilities or subsidiaries in Canada. In doing so, they will not only be able to benefit from CETA but also from ex- isting trade agreements between Canada and the United States in order to get their products into both European and North American markets duty free.

FOREIGN INVESTMENT
CETA has very comprehensive investment provisions that limit the imposition market ac- cess restrictions on investors and companies and provide certain protections for investors.
Examples of the new investment provi- sions included in CETA are:
Market Access
Under CETA, Canada and the EU can- not adopt or develop limitations on the par- ticipation of foreign capital in terms of a maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment nor can they impose limitations that restrict or re- quire specific types of legal entities through which a company may carry out an eco- nomic activity.

Performance  Requirements
Canada and the EU cannot impose or enforce requirements with regards to an in- vestment that would require a certain level or percentage of export of a good or service or impose a preference to goods produced in one party’s territory as opposed to goods produced in the other parties’ territory.

Non Discriminatory Treatment
Canada and the EU must treat each other’s investors no less favorably than they treat their own or other third country in- vestors in their territory. Additionally, Canada and the EU may not require that corporations appoint to senior manage- ment or board of director positions, natural persons  of  any  particular  nationality  in
 
order to benefit from the provisions of CETA. This is particularly interesting   for
U.S. companies who wish to set up sub- sidiaries or facilities in Canada and wish to have the senior management and board of director positions be filled by U.S. citizens.

Investment Protection
CETA also provides certain protection for investors, preventing Canada and the EU from expropriating or nationalizing in- vestments except under certain situations and following strict guidelines. It prohibits restrictions and delays in transfers relating to investments made and provides investors with access to an independent tribunal, with the power to award compensation, in situa- tions where investors feel they have suffered damages as a result of breaches in CETA’s investment provisions.

Easing of Investment Restrictions
As a result of CETA, the net benefit re- view threshold under the Investment Canada Act will be raised from $600 million to $1.5 billion, thus simplifying the acquisi- tion process for foreign investors wishing to purchase large Canadian companies.

PRACTICAL APPLICATION
Concretely, for U.S. and other foreign investors, the existence of CETA means that Canada is now an even better springboard for companies seeking access to European markets. By prohibiting restrictions based on the presence of foreign capital and for- eign participation in investments, U.S. and foreign investors can easily take advantage of the reduction of trade restrictions be- tween Canada and the EU, through invest- ment in Canadian companies or more directly through the creation of subsidiaries in Canada. U.S. companies may also want to consider manufacturing products in Canada in order to use the same produc- tion center to take advantage of both NAFTA and CETA.

POTENTIAL CHALLENGES FACED BY CANADIAN MARKETS
INCREASED COMPETITION FOR  CANADIAN MARKETS
One of the potential challenges faced by Canadian markets as a result of CETA is the increase in competition for smaller busi- nesses and producers. Under CETA, Europe will be able to export almost 92% of its agricultural and food products to Canada    duty    free.    This    has   certain
 
Canadian producers worried about the po- tential for competition and how their prod- ucts will fare if there is an influx of European goods into the Canadian market. For example, Quebec’s cheese producers are worried about their products as a bilat- eral quota of 17,700 pounds of cheese will be imported under CETA.2

DISPUTE RESOLUTION PROVISIONS OF CETA
CETA provides for the creation of an independent tribunal for the resolution of disputes, including the power to award com- pensation for damages. The concern is that the ability of companies to sue governments under CETA, may create a situation where companies or investors can dictate govern- ment policy changes or create an atmos- phere in which governments will find it difficult to enact legitimate regulatory or policy changes for fear of incurring liability.

CONCLUSION
Despite its opponents and the poten- tial difficulties that it may create for some industries and businesses, there is no doubt that CETA opens up new opportunities in Canada for U.S. and foreign investors, espe- cially in a time when some other govern- ments are turning to more protectionist policies and outlooks. In a world in which there is talk of building walls, Canada is building bridges, and it remains to be seen how much traffic there will be.
 

After almost ten years of prepatory work and official negotiations, the Comprehensive Economic and Trade Agreement (CETA) provisionally enters into force today, September 21^st, 2017, while waiting for further ratification by many European Union member states. Until it is fully ratified, most of its terms will still apply to Canada and the European Union as of today.¹ This agreement constitutes the most considerable bi-lateral trade agreement Canada has signed since NAFTA. After all, the European Union is the second largest world market for imports and Canada’s second largest commercial partner. It is no doubt that CETA constitutes an interesting and unprecedented business opportunity for the economic development of Canadian businesses who will be able to access the markets of the 28 European Union member states consisting of approximately 500 million consumers.

CETA represents a veritable competitive advantage for Canadian businesses, among other things, by improving export conditions, opening new markets and eliminating or reducing barriers to trade. One of the significant advantages of CETA is that 98% of tariff lines applicable to Canadian merchandise imported into the European Union are eliminated as of today. Prior to CETA’s provisional application only 25% of tariffs lines were duty exempt.

Canadian producers, manufacturers, and exporters in twelve sectors of the Canadian economy will be able to benefit from this new agreement, namely, the aerospace, agricultural and agri-food, automotive, clean-tech, fish and seafood, forestry and wood products, information and communications technologies, infrastructure, medical devices, metals, mining, and minerals, oil and gas, and pharmaceutical industries. All of these sectors include key exports from Quebec, including the vast market of manufactured goods, metals and mineral products.

Moreover, CETA’s rules of origin take into account current procurement and sourcing methods used by Canadian and European businesses, which, according to the Canadian Government may potentially allow for third-party countries whom the EU and Canada currently have free-trade agreements to be brought into one single free-trade area.

Exchanges between Canada and the European member states are also facilitated through the implementation of measures to improve border processing delays, simplify or automate customs procedures and establish a transparent and impartial review mechanism for customs decisions.

Through the provisions on regulatory cooperation established in CETA, it will equally be possible for Canadian products to be tested and certified in Canada under European regulations. Under CETA, products entering the EU must still comply with EU regulatory standards. However, Canadian products may now be certified under European Union regulatory standards in Canada, which facilitates product certification for goods exported by Canadian businesses.

Furthermore, CETA also facilitates the cross-border movement of qualified professionals, technologists, business people, and investors temporarily staying in the European Union or transferring temporarily within a business operating in Canada and the European Union. Canadian businesses will profit from greater certainty in regards to the creation of European subsidiaries and the installation, maintenance, and after-sale service offered in the European Union. The costs related to the export of merchandise will also be reduced and better foreseeable.

With certain exceptions, Canadian businesses will also have privileged access to public markets in the European Union. CETA permits Canadian businesses to bid on European calls for tender from municipalities, schools, universities, hospitals, public sector business and central governments, and this on a level playing field with their European counterparts. Furthermore, certain minimal thresholds requiring calls for tender in relation to the provision of goods and services by Canadian businesses have been lowered by the adoption of CETA.

According to a study done by Canada and the European Union in 2008, we can anticipate an annual increase of Canada’s GDP by 0.77%, 2.2 billion dollars of economic benefits for Quebec, and the creation of 16,000 new jobs. The free movement of professionals, the opening of certain markets, and the strengthening of Canada’s economic relations, and the stimulation of the Canadian economy are only some of the benefits that the provisional application of CETA will provide. The professionals at Therrien Couture are following CETA closely and are here to discuss its advantages and its provisional application. We will also keep you updated as CETA as ratified by the various European Union member state parliaments, a process which could be lengthy.

Altogether it is undeniable that this new agreement will position Canada and Quebec in the forefront of international commerce creating new opportunities for Canadian businesses, companies looking to create Canadian subsidiaries, and investment in Canadian markets.

This article was written with the collaboration of Christopher Jackson, lawyer.

On May 19, 2020, the Canadian Competition Bureau (the "Bureau") announced a settlement agreement (the "Agreement") between the Commissioner of Competition (the "Commissioner") and Facebook Inc. ("Facebook"). The Agreement follows the Commissioner's finding that Facebook provided false or misleading representations to the public regarding the privacy of personal information obtained from the users of Facebook’s website and mobile applications, primarily Facebook Messenger.

Under the Agreement, Facebook undertakes among other things:

• To refrain from providing misleading representations to its users on the extent to which users may control access to their information, and the sharing of users’ personal information with third parties on its platforms;
• To pay an administrative penalty of 9 million dollars;
• To reimburse the 500,000 dollars in costs incurred by the Commissioner in the course of his investigation; and
• To put in place a Compliance Program¹:

a) ensuring compliance with the order prohibiting Facebook from making false or misleading representations to the public on the disclosure of personal information;

b) harmonizing Facebook’s practices with those in the "Corporate Compliance Programs" bulletin issued by the Bureau; and

c) agreeing to the oversight and supervision of the Commissioner for a period of 10 years.

It is important to note that the Agreement does not constitute the end of the proceedings instituted by the Office of the Privacy Commissioner of Canada on February 6, 2020, which  is currently underway before the Federal Court under the Personal Information Protection and Electronic Documents Act².

Commissioner's position on misleading commercial practices

In his decision, the Commissioner states that the guarantees provided by corporations, in reference to the protection and use of personal information, must comply with the specific provisions of the Competition Act³. The provisions of this act explicitly penalize deceptive marketing practices. The Commissioner has thus demonstrated an intent to protect privacy and personal information in Canada in a manner that is consistent with the Office of the Privacy Commissioner of Canada and Quebec’s access to information commission, the Commission d'accès à l'information du Québec.

To summarize, business practices, which involve the use of personal data, must comply with privacy and personal information laws⁴, and must also respect the provisions of the Competition Act.

The Competition Act, which is a federal statute, prohibits corporations from making "false or misleading claims about a product or service to promote their business interests”⁵.

In the Commissioner's view, this prohibition applies, in particular, to a corporation’s claims about the personal information it collects, the purposes for which it is collected and how it is used, both for "free" digital products and for products and services purchased by consumers⁶.

Examples may include, but are not limited to, representations made to the public when a company offers a so-called "free" mobile application in exchange for personal information, or when it offers a service that requires collecting personal data (for example, statements contained in a contract, a registration form, a policy posted on a website or any other medium).

Commissioner's Investigation and Conclusion

The Commissioner investigated Facebook's practices from 2012 to 2018. This included the information provided to Facebook users on the website and applications, including Facebook Messenger, and the handling and dissemination of user’s personal information. The Commissioner concluded that Facebook had breached its obligations under the Competition Act because Facebook's claims about the privacy of user’s personal information was false and misleading.

Facebook allegedly made representations to the public, through several policies, settings and other parameters. This information was made available to users on Facebook’s website and mobile applications. The information provided users with a false and misleading impression about third parties access to their personal information, including, who could view or access their personal information and the user’s ability of to control the disclosure of their personal information.

Thus, beyond the literal meaning of the words used by Facebook in its representations, the Commissioner considered the overall impression of a user; as a result, Facebook was not in compliance with its duties under the Competition Act.  

Conclusion

In light of the Agreement and the position taken by the Commissioner in this matter, we can assume that the Commissioner may increasingly use the powers granted to him, under the Competition Act, to ensure that businesses comply with the requirements of the Act. These requirements will be enforced in addition to the various federal and provincial laws on privacy and personal information protection.

We have a team of lawyers who can assist you in reviewing your privacy policies to ensure that your business complies with all applicable legislation.

You can contact us for more information.

***

To access the full text of the Agreement, please click on the following link: https://decisions.ct-tc.gc.ca/ct-tc/cdo/fr/item/471812/index.do.

To view the Bureau's "Corporate Compliance Programs" bulletin, please click on the following link: https://www.bureaudelaconcurrence.gc.ca/eic/site/cb-bc.nsf/vwapj/cb-bulletin-corp-compliance-f.pdf/$FILE/cb-bulletin-corp-compliance-f.pdf.

Program Summary

The Canada Mortgage and Housing Corporation (CMHC) administers this assistance program on behalf of the Government of Canada and its provincial and territorial partners.

The CECRA is offering forgivable loans to eligible commercial property owners so that they can reduce the rent payable by their tenants who are small businesses (SMEs) affected by the effects of the COVID-19 crisis by at least 75% for the months of April, May and June 2020.

Program’s Aim

Since the CMHC and the federal government are currently working to finalize the details of this program, the following, announced by the CMHC, outlines how it will operate:

• “The CECRA will cover 50% of the gross rent owed by impacted small business tenants during the 3-month period of April, May and June 2020;
• The property owner will be responsible for no less than half of the remaining 50% of the gross rent payments (paying no less than 25% of the total);
• The SME will be responsible for no more than half of the remaining 50% of the gross rent payments (paying no more than 25% of the total).”

Who is Eligible to Apply for the CECRA?

According to available information available from the CMHC, the property owner must meet the following requirements in order to be eligible for the CECRA:

• “You own property that generates rental revenue from commercial real property located in Canada.
• You are the property owner of the commercial real property where the impacted small business tenants are located.
• You have a mortgage loan secured by the commercial real property, occupied by one or more small business tenants.*
• You have entered or will enter into a rent reduction agreement for the period of April, May, and June 2020, that will reduce impacted small business tenant’s rent by at least 75%.
• Your rent reduction agreement with impacted tenants includes a moratorium on eviction for the period of April, May and June 2020.
• You have declared rental income on your tax return (personal or corporate) for tax years 2018 and/or 2019.”

* For those property owners who do not have a mortgage, an alternative mechanism will be implemented. Further information will be outlined in the near future.

Which Small Business Tenants are Covered by the CECRA?

SMEs, including NPOs covered by the CECRA, must meet the following criteria:

• “pay no more than $50,000 in monthly gross rent per location (as defined by a valid and enforceable lease agreement),
• generate no more than $20 million in gross annual revenues, calculated on a consolidated basis (at the ultimate parent level), and
• have temporarily ceased operations (i.e. generating no revenues), or has experienced at least a 70% decline in pre-COVID-19 revenues.**

** To measure revenue loss, small businesses can compare revenues in April, May and June of 2020 to that of the same month of 2019. They can also use an average of their revenues earned in January and February of 2020.”

Agreement to Intervene Between the Owner (Landlord) and the Tenant (SME)

In accordance with the eligibility criteria outlined above, an agreement for each application must be reached between the landlord and the tenant who qualify with the CECRA.

We are in the process of drafting a template agreement that will be enhanced and completed when all the specific details of this program are available at the beginning of May 2020.

The information contained in this memo is taken from the CMHC website. This memo is not a legal opinion and each situation must be analyzed in the light of its own facts.

However, many may be shocked to learn that there is also a limit on how much alcohol one can bring across provincial borders in Canada. This limit stems from an anachronistic law that dates back to 1928, the Importation of Intoxicating Liquors Act¹. Dating from a period when prohibition was in full force in the United States, this law makes it an offence for any person to import or transport alcohol across provincial borders². Many members of parliament, including Prime Minister Justin Trudeau, have confessed that they have unknowingly broken the law by bringing home bottles of wine from vineyards in Canada³. This has led many to question whether this restriction is out of sync with present Canadian values⁴. Furthermore, recent case law addressing this issue has led some to question whether this restriction is unconstitutional. 

•    Legal Limits on Alcohol
Several amendments to the Liquors Act have been passed, but most provinces still limit the amount of alcohol one can transport or export across provincial borders. For instance, in Quebec and Ontario, an individual may, for personal use, bring into the province a maximum of 3 litres of spirits, 9 litres of wine and 24.6 litres of beer⁵. In New Brunswick, the Liquor Control Act⁶ specifies that an individual is prohibited by law from having in his possession more than 12 pints of liquor purchased outside the province⁷. 

•    Summary of R v. Comeau
In R v. Comeau⁸, Mr. Gérard Comeau decided to travel from New Brunswick, where he resided, to Quebec in order to buy alcohol at a lower price. Unbeknownst to Mr. Comeau, the RCMP was targeting individuals bringing more than five cases of beer over the border. Mr. Comeau was intercepted on his return to New Brunswick with 15 cases of beer and three bottles of liquor. The alcohol was seized and Mr. Comeau was fined for violating the NB Liquor Control Act. While the RCMP officers felt that they were merely applying the law, for Mr. Comeau the charges were an immense shock. In fact, it would seem that he was not the only cross border shopper; two thirds of the customers purchasing alcohol at the stores on the Quebec border were from New Brunswick. The important question raised in this case was whether this restriction violated the Constitutional rights of Canadians to enjoy free trade across provincial borders. 

•    The Debate
Cases such as this, have opened the debate in public and legal circles. The debate stems from an interpretation of section 121 of the Constitution, which states that all goods may “be admitted free into each of the other Provinces.” This section was first interpreted in 1921 to mean that goods moving across provincial borders cannot be charged duty. This means that any restriction with regard to limitations on the type and quantity of a good is constitutionally valid. In the Comeau case, the honorable Judge Ronald LeBlanc provides a meticulous analysis to determine whether the initial interpretation of section 121 was accurate. According to Judge LeBlanc, the Supreme Court erred in 1921, which has since led to the disuse and neglect of section 121 for nearly a century. The initial fathers of the confederation of Canada meant to allow free trade across provinces without any trade barriers⁹. Judge LeBlanc notes that restricting the meaning of section 121 to mean “trade without tariffs” is too restrictive as the true purpose of the section is to encourage free trade, not to limit it.

•    The Implications
While the decision itself is important and resonates within the legal community across Canada, this case is bound to garner even greater attention in the future. On May 5, 2017 the Supreme Court of Canada granted leave to appeal the decision. The implications of this appeal are enormous. The Supreme Court will likely either confirm or reinterpret section 121 of the Constitution. After 95 years of dormancy, a reinterpretation of section 121 could substantially change interprovincial trade and Canadians will finally know whether transporting alcohol over provincial borders is a right protected by the Canadian Constitution¹⁰.  Some fear this may open the floodgates to a plethora of unexpected changes to interprovincial trade. In the meantime, the media surrounding this debate has led many Canadians to discover that they have been unknowingly breaking the law and it remains to be seen whether such cross-border shopping trips will continue to be illegal. 
 

  Parliamentary Debate, Bill C-311 an Act to Amend the Importation of Intoxicating Liquors Act (Interprovincial importation of wine for personal use) 41st par, 1st sess (2013) online at https://openparliament.ca/bills/41-1/C-311/ [Parliamentary Debate].
  Importation of Intoxicating Liquors Act RSC 1985 c 1-3. (hereafter referred to as the “Liquors Act”)
  Justin Trudeau, comments as representative of the liberal party Papineau constituency http://www.ourcommons.ca/DocumentViewer/en/41-1/house/sitting-129/hansard
  Parliamentary debate, supra note 1. 
  Regulation respecting the possession and transportation into Québec of alcoholic beverages acquired in another province or a territory of Canada c S-13, r 6.1; Bill C-311 Amendment to the Importation of Intoxicating Liquors Act. 
  Liquor Control Act, RSNB 1973, c L-10 [NB Liquor Control Act]
  NB Liquor Control Act ibid 43(c).
  R v. Comeau 2016 NBPC 3
  Ibid see para 101. 
  Section 121 Constitution Act of 1867 available online at http://www.justice.gc.ca/eng/csj-sjc/just/05.html.
 

Aware of this sad reality, the federal and Quebec governments have announced measures to limit their negative impacts. Some of these measures are direct assistance while others are tax measures.

DIRECT ASSISTANCE

In its March 18 announcement, the federal government presented an assistance plan intended for individuals and businesses consisting of the following measures:

• Eliminating the mandatory one-week waiting period for Employment Insurance sickness benefits;
• Eliminating the requirement to provide a medical certificate in order to receive Employment Insurance sickness benefits;
• Implementing the Employment Insurance Work-Sharing program, which provides benefits to workers who agree to reduce their normal work schedule due to new circumstances beyond the control of their employer;
• Granting an emergency care allowance of up to $900 every two weeks, for a maximum period of 15 weeks, for people who are unable to remain at work due to illness, quarantine or caring for a family member and who do not benefit from paid sick leave or are not eligible for Employment Insurance sickness benefits including, especially, the self-employed (application for this type of benefit is expected to be available starting in April);
• Granting an emergency support allowance of up to 14 weeks maximum for people who are not eligible for Employment Insurance and who will lose their job or see their hours of work reduced (according to available information, this benefit would be equivalent to Employment Insurance benefits);
• For low-income and modest-income families, a one-time special payment through the Goods and Services Tax Credit;
• Increasing the maximum Canada Child Allowance benefits for the year 2019-2020 by $300 per child starting in May;
• A 6-month moratorium on the repayment of student loans;
• A 25% reduction in the minimum required RRIF withdrawal requirement for 2020;
• Granting a temporary 3-month wage subsidy to businesses eligible for the small business, NPO and charity deduction. This subsidy is equal to 10% of the remuneration paid during this period, up to a maximum of $1,375 per employee and $25,000 per employer;
• Enhancing the Business Credit Availability Program to allow the Business Development Bank of Canada (BDC) and Export Development Canada (EDC) to provide additional support to businesses;
• Introducing the Insured Mortgage Purchase Program (IMPP);
• Changing the Canada Account to allow the Government of Canada to provide support to businesses through loans, guarantees or insurance policies.

In its March 19 announcement, the Government of Quebec presented social measures for workers and businesses, including the following:

• Establishing the Temporary Aid for Workers Program (TAWP COVID-19), which provides a lump sum of $573 per week to workers who are in isolation and who are unable to benefit from their earnings or another compensation alternative, such as employment insurance;
• Establishing the Concerted Temporary Action Program for Businesses (CTAPB) to provide a new loan to be granted or guaranteed by Investissement Québec for a minimum amount of $50,000 at advantageous rates to support the working capital of businesses operating in all sectors of activity and directly affected by COVID-19 (provided that certain conditions are met);
• Relaxing the conditions of loans already granted by Investissement Québec; 
• 25% reduction in the minimum required amount of mandatory RRIF withdrawals for 2020.

In addition to these measures, some municipalities are postponing the payment date of municipal taxes, including the cities of Montréal, Québec City and Lévis, to name a few.

In addition, financial institutions have proposed moratoriums on the payment of principal and interest on certain loans.

TAX ASSISTANCE

•  New deadlines for filing income tax returns and making payments. Both Quebec and the federal government have decided that the deadlines for filing income tax returns, paying taxes due (without penalties or interest) and making instalments (without penalties or interest) have been changed for most taxpayers.  Currently, these additional deadlines do not apply to net tax remittances (GST and QST).

The following is a summary table of these reliefs:

• Revenue Quebec announced that tax audit and collection activities are suspended and that it will be open and flexible with respect to the usual duration of payment arrangements related to tax debts.
• The Canada Revenue Agency announced that it is temporarily suspending its communications with small and medium size enterprises to initiate or begin tax audits.

Furthermore, in the current context, you will find below a brief reminder of some tax concepts that may be useful to you in making certain decisions for the coming weeks.

• Directors' liability. In the current economic context, some businesses may be tempted to use the amounts collected from GST, QST and DAS to reimburse a supplier or creditor. However, it is important to keep in mind that corporate directors may be held personally liable for failure to meet a corporation's obligations to withhold source deductions or remit net taxes.
• Deadlines. The deadlines for objections (90 days) and appeals of decisions on objections (90 days) are still in effect and have not been modified by the announcements made by the federal and Quebec governments. However, the judicial time limits provided for under legislation administered by the courts may have been suspended for a certain period, as is the case for the Tax Court of Canada.
• Request for relief from interest and penalties. In the event of an inability to pay a tax debt and that the failure is due to exceptional circumstances, the tax authorities may waive interest, penalties and other charges. Thus, the COVID-19 pandemic may, in our opinion, possibly arise for certain taxpayers whose precarious financial situation prevented them from paying their tax debts in full.
• Tax losses. The use of various types of tax losses accumulated or resulting from stock market declines could be an alternative to allow taxpayers to minimize their taxes payable and thus preserve their liquidity.
• TFSA and RRSP. Withdrawals from an RRSP may be preferable to withdrawals from a TFSA during a period when the taxpayer's tax rate is lower than normal. Finally, from an investment perspective, for the more optimistic who wish to take advantage of falling stock markets and anticipate potential gains, investing through TFSA funds may be preferable considering that the withdrawal of gains made within the TFSA is tax-free, unlike withdrawals from an RRSP.

The COVID-19 pandemic brings its share of disruptions around the world, but also within Quebec, affecting all spheres of the economy as well as employees, self-employed workers and owners of small, medium and large businesses.

Aware of this sad reality, both the federal and Quebec governments have announced different measures over the past few weeks to limit their negative impacts. Some of these measures are direct assistance, while others are tax related.

DIRECT ASSISTANCE

Through various announcements, the federal government introduced several measures aimed at individuals and businesses, including the following: 

• Granting of a temporary 3-month wage subsidy available to businesses eligible for the small business deduction, NPOs and charities. This grant is equivalent to 10% of the remuneration paid during this period, up to a maximum of $1,375 per employee and $25,000 per employer. This grant and the Canada Emergency Wage Subsidy are not cumulative in that the amounts obtained by employers under the Temporary Wage Subsidy will reduce the amount that can be claimed as a Canada Emergency Wage Subsidy;
• Granting of the 3-month Canada Emergency Wage Subsidy (March, April and May 2020) available to eligible Canadian businesses, including not-for-profit and charities, regardless of their size and sector of activity. This grant is equivalent to 75% of the wages paid during this period, up to a maximum weekly amount of $847 per employee. Considering the importance of this measure, our team has prepared a document explaining this new measure in more detail, entitled “Canada's Emergency Wage Subsidy: For Whom and How to Benefit?”;
• Granting of the Canada Emergency Benefit of $500 per week for up to 16 weeks is available to employees who are unable to remain at work due to illness, quarantine or caring for a family member;
• Granting of the Supplementary Unemployment Benefit Plan, which allows an employer to top up the salary of an employee who is receiving Employment Insurance benefits, as long as the program is recognized by the government;
• Granting of the Employment Insurance Sickness Benefit that eliminates the mandatory one-week waiting period and the requirement to provide a medical certificate in order to receive Employment Insurance sickness benefits;
• Implementing the Employment Insurance Work-Sharing Program, which provides benefits to workers who agree to reduce their normal work schedule due to new circumstances beyond the control of their employer;
• For low- and modest-income families, providing a special one-time payment through the Goods and Services Tax Credit;
• Increasing the maximum Canada Child Tax Benefit for the year 2019-2020 by $300 per child starting in May;
• 6-month moratorium on student loan repayments;
• Reducing by 25% the minimum required RRIF mandatory withdrawals for the year 2020;
• Enhancing the Business Credit Availability Program which allows the Business Development Bank of Canada (BDC) and Export Development Canada (EDC) to provide additional support to businesses;
• Changing the Canada Account to allow the Canadian government to provide support to businesses through loans, guarantees or insurance policies;
• Granting $5 billion in financial assistance to farmers through loans from Farm Credit Canada;
• Granting an emergency account for businesses to access loans of up to $40,000 from a financial institution, with EDC's assistance.

For its part, as part of the various announcements, the Government of Quebec has presented social measures for workers and businesses, including : 

• Establishing the Temporary Aid for Workers Program (TAWP COVID-19), which provides a lump sum of $573 per week to workers who are in isolation and who are unable to benefit from their earnings or another compensation alternative, such as employment insurance;
• Implementing the Concerted Temporary Action Program for Businesses (CTAPB) to provide a new loan to be granted or guaranteed by Investissement Québec for a minimum amount of $50,000 at advantageous rates to support the working capital of businesses operating in all sectors of activity and directly affected by COVID-19 (provided that certain conditions are met);
• Easing the conditions of loans already granted by Investissement Québec; 
• Reducing by 25% the minimum required amount of mandatory RRIF withdrawals for 2020.

In addition to these measures, some municipalities are postponing the date for payment of municipal taxes, the cities of Montreal, Laval, Longueuil, Quebec City and Lévis, to name a few.

Furthermore, financial institutions have proposed moratoriums on the payment of principal and interest on certain loans and some municipalities, including the City of Lévis, through local economic development organizations, have announced measures to help businesses.

TAX ASSISTANCE

• New deadlines for filing income tax returns and making payments. In Quebec as well as in the federal government, the deadlines for filing income tax returns, paying taxes due (without penalties or interest) and making instalments (without penalties or interest) have been changed for most taxpayers. 

The following is a summary table of these reliefs:

• The Quebec Revenue Agency announced the following administrative measures:
  • Activities related to tax audit (except fraud) and collection are suspended;
  • It will be open and flexible with respect to the usual duration of payment agreements related to tax debts;
  • Notices of Objection with a 90-day deadline between March 13 and June 29, 2020 are extended to June 30, 2020;
  • Administrative measures regarding income tax (except for deductions at source ("DAS") to be made between March 17, 2020 and May 31, 2020 are postponed to June 1, 2020.
• The Canada Revenue Agency announced the following:
  • It is temporarily suspending its communications with small and medium businesses to begin or initiate tax audits (excluding fraud) for a period of 4 weeks;
  • It is also suspending the processing of notices of objection;
  • The deadline for notices of objection with a 90-day period between March 18 and June 30, 2020 is extended to June 30, 2020;
  • Income tax administrative measures (except for DAS) to be completed after March 18, 2020 are extended to June 1, 2020.

Furthermore, in the current context, you will find below a brief reminder of some tax concepts that may be useful in making certain decisions for the coming weeks.

• Responsibilities of Directors. In the current economic context, some businesses may be tempted to use the amounts collected from GST/QST and DAS to reimburse a supplier or creditor. However, it is important to keep in mind that corporate directors may be held personally liable for a corporation's failure to meet its withholding tax obligations. The directors' responsibility is not absolute, but they must be able to prove that a reasonable person in the same circumstances would have taken the same positive action to avoid any default.
• Before the courts. In the Court of Quebec, there is a suspension of the computation deadlines for certain recourses, starting March 15 until the end of the health emergency measures and starting March 16, 2020 until May 1, 2020 in the Tax Court of Canada.
• Request for relief from interest and penalties. In the event of an inability to pay a tax debt and the failure is due to exceptional circumstances, the tax authorities may waive interest, penalties and other charges. Thus, the COVID-19 pandemic may, in our opinion, eventually arise for certain taxpayers whose precarious financial situation prevented them from paying their tax debts in full. In this context, we recommend that taxpayers properly document their file if they are unable to meet all their tax obligations.
• Tax losses. The use of various types of tax losses accumulated, carried forward or resulting from the stock market downturn could be an alternative in order to allow taxpayers to minimize their taxes payable and thus preserve their liquidity.
• TFSA and RRSP. Withdrawals from an RRSP may be preferable to withdrawals from a TFSA during a period when the taxpayer's tax rate is lower than normal. Finally, from an investment perspective, for the more optimistic who would like to take advantage of falling stock markets and anticipate potential gains, investing through TFSA funds may be preferable considering that the withdrawal of gains made within the TFSA is tax-free, unlike withdrawals from an RRSP.

On May 19, 2020, the Canadian Competition Bureau (the "Bureau") announced a settlement agreement (the "Agreement") between the Commissioner of Competition (the "Commissioner") and Facebook Inc. ("Facebook"). The Agreement follows the Commissioner's finding that Facebook provided false or misleading representations to the public regarding the privacy of personal information obtained from the users of Facebook’s website and mobile applications, primarily Facebook Messenger.

Under the Agreement, Facebook undertakes among other things:

• To refrain from providing misleading representations to its users on the extent to which users may control access to their information, and the sharing of users’ personal information with third parties on its platforms;
• To pay an administrative penalty of 9 million dollars;
• To reimburse the 500,000 dollars in costs incurred by the Commissioner in the course of his investigation; and
• To put in place a Compliance Program¹:

a) ensuring compliance with the order prohibiting Facebook from making false or misleading representations to the public on the disclosure of personal information;

b) harmonizing Facebook’s practices with those in the "Corporate Compliance Programs" bulletin issued by the Bureau; and

c) agreeing to the oversight and supervision of the Commissioner for a period of 10 years.

It is important to note that the Agreement does not constitute the end of the proceedings instituted by the Office of the Privacy Commissioner of Canada on February 6, 2020, which  is currently underway before the Federal Court under the Personal Information Protection and Electronic Documents Act².

Commissioner's position on misleading commercial practices

In his decision, the Commissioner states that the guarantees provided by corporations, in reference to the protection and use of personal information, must comply with the specific provisions of the Competition Act³. The provisions of this act explicitly penalize deceptive marketing practices. The Commissioner has thus demonstrated an intent to protect privacy and personal information in Canada in a manner that is consistent with the Office of the Privacy Commissioner of Canada and Quebec’s access to information commission, the Commission d'accès à l'information du Québec.

To summarize, business practices, which involve the use of personal data, must comply with privacy and personal information laws⁴, and must also respect the provisions of the Competition Act.

The Competition Act, which is a federal statute, prohibits corporations from making "false or misleading claims about a product or service to promote their business interests”⁵.

In the Commissioner's view, this prohibition applies, in particular, to a corporation’s claims about the personal information it collects, the purposes for which it is collected and how it is used, both for "free" digital products and for products and services purchased by consumers⁶.

Examples may include, but are not limited to, representations made to the public when a company offers a so-called "free" mobile application in exchange for personal information, or when it offers a service that requires collecting personal data (for example, statements contained in a contract, a registration form, a policy posted on a website or any other medium).

Commissioner's Investigation and Conclusion

The Commissioner investigated Facebook's practices from 2012 to 2018. This included the information provided to Facebook users on the website and applications, including Facebook Messenger, and the handling and dissemination of user’s personal information. The Commissioner concluded that Facebook had breached its obligations under the Competition Act because Facebook's claims about the privacy of user’s personal information was false and misleading.

Facebook allegedly made representations to the public, through several policies, settings and other parameters. This information was made available to users on Facebook’s website and mobile applications. The information provided users with a false and misleading impression about third parties access to their personal information, including, who could view or access their personal information and the user’s ability of to control the disclosure of their personal information.

Thus, beyond the literal meaning of the words used by Facebook in its representations, the Commissioner considered the overall impression of a user; as a result, Facebook was not in compliance with its duties under the Competition Act.  

Conclusion

In light of the Agreement and the position taken by the Commissioner in this matter, we can assume that the Commissioner may increasingly use the powers granted to him, under the Competition Act, to ensure that businesses comply with the requirements of the Act. These requirements will be enforced in addition to the various federal and provincial laws on privacy and personal information protection.

We have a team of lawyers who can assist you in reviewing your privacy policies to ensure that your business complies with all applicable legislation.

You can contact us for more information.

***

To access the full text of the Agreement, please click on the following link: https://decisions.ct-tc.gc.ca/ct-tc/cdo/fr/item/471812/index.do.

To view the Bureau's "Corporate Compliance Programs" bulletin, please click on the following link: https://www.bureaudelaconcurrence.gc.ca/eic/site/cb-bc.nsf/vwapj/cb-bulletin-corp-compliance-f.pdf/$FILE/cb-bulletin-corp-compliance-f.pdf.

Prior to this date, recreational cannabis remains illegal and subject to criminal prosecution. Medicinal cannabis will continue to be governed by a separate legislative framework.

Bill C-45 has legal and operational impacts for foreign businesses operating in Canada, especially in the areas of real estate, insurance, commerce, labor relations, rules of the road and criminal liability. Foreign businesses will need to understand and to adapt themselves not only to federal but also to provincial, territorial and municipal regulations, which may be quite different throughout Canada. They also need to be aware that their U.S., South American or European experience of cannabis legalization will not necessarily translate into the Canadian landscape.

CONTEXT

The legalization of recreational cannabis was an electoral promise made in 2015 by the Liberal Party of current Prime Minister Justin Trudeau, with the twin goals of preventing access to cannabis by youth and of depriving criminals and organized crime of the profits derived from its sale.

While some businesses, producers, distributors, municipalities, investors and consumers are thrilled by the impending legalization, this enthusiasm is not universal and there are other businesses, municipalities, employers, unions, organizations and individuals (parents, psychiatrists, teachers) that are worried about anticipated difficulties.

LEGALIZATION OR PARTIAL DECRIMINALIZATION?

Beginning on October 17, 2018, dried and fresh cannabis, cannabis oil, and cannabis plants and seeds will be publicly available in a legal market. Edibles containing cannabis and cannabis concentrates are likely to be legalized at a later date, possibly in 2019, unless the Canadian federal government legalizes them earlier; currently they remain illegal.

Once legalization occurs, adult individuals at or over the minimal age limit chosen by each province or territory (currently 18 or 19 years of age, depending on the juris- diction), may legally purchase, grow and possess a limited quantity of cannabis.

Generally, eligible individuals will be legally able to possess up to 30 grams of dried cannabis in public; however, under Schedule 3 of Bill C-45 there are equivalent quantities for each class of cannabis, which may complicate the understanding of this threshold, beyond which possession will remain a criminal offense:

When it comes to growing recreational cannabis, eligible individuals may grow up to four plants per dwelling-house. However, at the time of the writing of this article, two Canadian provinces, Quebec and Manitoba, have indicated that they want to enact a more severe rule or totally prohibit home growth, which is likely to bring them into conflict with the Canadian government.

When examined more closely, it becomes clear that the “legalization” of recreational cannabis in Canada is actually a partial decriminalization, since the possession, sale, distribution, production (including alteration and cultivation), importation and exportation of cannabis outside or in excess of the restrictive legal framework created by Bill C-45, remain subject to criminal prosecution.

Business owners should be aware that, unless authorized under the rules enacted in Bill C-45, organizations, such as corporations, municipalities and trade unions, to name a few, are prohibited from possessing and distributing cannabis. Canadian criminal law provides specific rules for the criminal liability of organizations through individuals. For instance, senior officers, which may include an intermediate manager who is responsible for managing an important aspect of the organization’s activities, may incur the organization’s criminal liability through possession or distribution of cannabis themselves or through other agents of the organization, where their intent is to benefit the organization. The fines for organizations illegally possessing or distributing cannabis can be up to $100 000 for an offense punishable on summary conviction, or a discretionary amount, which may be higher, if the company is found guilty of an indictable offense.

DIFFERENT RULES FOR DIFFERENT JURISDICTIONS

As touched on above, the distribution and sale of recreational cannabis, along with its consumption and possession, may be regulated in some respects by Canadian provinces and territories, and peripherally by municipalities, as long as their regulations are compliant with Canada’s federal rules and do not exceed their respective jurisdictions. At the provincial and territorial level, this will create major differences with regard to the:

• retail sale of Cannabis (i.e. though public monopolies or private entities);
• legal age of consumption;
• places where use is forbidden;
• scope of new obligations (i.e. preventive measures regarding smoking, signage, storage, etc.) and associated fines; and
• cannabis-related services, objects or activities, such as promotional items, marketing, cannabis coffee shops, etc.

In summary, criminal offenses will be the same throughout Canada, however, provincial/territorial and municipal regulations will vary such that behavior that is perfectly legal in one province may be prohibited in another. It will be critical for business owners that operate in multiple Canadian jurisdictions to realize that there will be variations between jurisdictions and to be aware of what these are and how they might impact their business.

CANADA VERSUS THE U.S.

For businesses operating in Canada and the United States, there are important differences between the cannabis-related rules in the two countries. First of all, U.S. federal law prohibits the production, distribution, sale and possession of cannabis in any form, since cannabis is listed as a controlled substance under Schedule I of the Controlled Substances Act. The U.S. federal Government tolerates a different state approach regarding cannabis, where the state has passed a law to this effect.¹ Secondly, the business model used by these States is a model where the cannabis production and distribution system is based on private industry looking for growth and profits.² As discussed above, cannabis will no longer be completely illegal in Canada, however there will be a myriad of rules and prohibitions that will apply to limit the promotion of recreational cannabis, so as to limit the profitability to some degree. Finally, the guidelines for recreational cannabis use will also be different (for example, the legal minimum age and the possession limits). In general terms, in U.S. states allowing recreational cannabis use, the legal minimum age is 21 years old and, except for certain exceptions, legal possession is limited to 1 oz (28.35 grams).

DRUG TESTING EMPLOYEES

The principal rules on cannabis drug testing by employers are currently similar throughout Canada, even though they are regulated separately by each Canadian province or territory. Generally speaking, since a 2013 Supreme Court of Canada decision, the Canadian rules regarding mandatory random or systematic drug tests by employers are very severe, requiring strong evidence of increased safety risks, such as evidence of a general problem with substance abuse in the workplace. This burden is difficult to achieve. On a more positive note, it is possible to conduct individual tests, which are subject to different rules, following valid consent or the occurrence of one of the events recognized by Canadian law as lawful justification for testing. Although this may vary on a case-by-case basis, the validity of individual tests is generally recognized in the following situations:

• if there is reasonable cause to suspect the employee of drug use in the workplace;
• after direct involvement in a work-related accident or incident that is not explained otherwise after investigation; or
• as part of a monitoring program for any employee returning to work following voluntary treatment for substance abuse.

RIGHT REFLEXES AND PREPARATION

Foreign businesses and their lawyers need to be aware of the changes being enacted to legalize recreational cannabis and to start their preparation as soon as possible. These steps may include, initially, gathering legal and medical information, taking and affirming a clear position, drafting a clear and complete policy, implementing appropriate internal and external procedures, training of managers, and meeting with employees to communicate the organization’s policy, as well as explaining the situation and raising awareness. Some businesses will also have obligations vis-à-vis their customers or other people located on their premises or nearby.

In the end, it is always better to set expectations beforehand and to clarify what is acceptable conduct before the occurrence of a problem. Change is coming, and you need to lead from the front!

This article was submitted for publication on June 26, 2018. and was current as of that date.

¹National institute of Public Health, Public health ex- pertise and reference centre, « Jurisdictions that have legalized  cannabis  »,  online:  <https://www.inspq. qc.ca/dossiers/cannabis/juridictions-ayant-legalise- le-cannabis> (consulted on June 29, 2018).

²Ibid.

For a number of years now, there has been a controversy in case law concerning the application of Section 243 of the Bankruptcy and Insolvency Act ("BIA") in Quebec, especially concerning the conditions under which such an application to the Court for the appointment of a receiver by a secured creditor may be granted.

On the one hand, some Superior Court judges were of the opinion that even in the presence of an insolvent debtor and an application for the appointment of a receiver in good and due form, a secured creditor must comply with the provisions applicable to hypothecary recourses (transmitting a prior Notice of Exercise and waiting for the expiry of the legal time limits contained therein) and therefore in the absence of compliance with these rules set out in the Civil Code of Québec, Section 243 of the BIA cannot be applied.

On the other hand, there was the thesis that the BIA somehow allows all requirements and rules of procedure applicable in Quebec law (security law) to be set aside, so that a secured creditor can use the vehicle provided for under Section 243 of the BIA without beginning the exercise of his or her hypothecary recourses as expressly provided by law.

The Court of Appeal was seized of an appeal filed by the Laurentian Bank of Canada ("LBC") following a judgment rendered by the Honourable Gaétan Dumas, S.C.J., which dismissed an application for the appointment of a receiver, first under Section 243 of the BIA and then under Section 47 of the BIA, of the property of the debtors Media5 Corporation and Essagal Acquisitions Inc. The purpose of the application at first instance is to allow the secured creditor, LBC, to be authorized to sell the debtors' businesses, through the appointed receiver, PricewaterhouseCoopers Inc. ("PWC"), as a going concern.

Here is how the Court of Appeal expressed itself in its unanimous decision of July 20:

« [97] To summarize, a hypothecary creditor may obtain the appointment of a trustee in bankruptcy as receiver under s. 243(1) of the BIA to sell the debtor's business if the following preconditions are met:

(1) the debtor is insolvent;

(2) the hypothecary security is for all or almost all of the inventory, accounts receivable or other property acquired or used by the insolvent debtor;

(3) such property is used in connection with the insolvent debtor’s affairs business;

(4) the notice required under Section 244 has been given and the time limit set out in Section 243(1.1) of the BIA has been met;

(5) the substantive and procedural requirements prior to the exercise of a hypothecary recourse set out in the Civil Code of Québec have been complied with, namely (i) the publication of a prior Notice of Exercise of a Hypothecary Right in accordance with the formalities set out in Articles 2757 and 2758 para. 1 C.C.Q., and (ii) compliance with the time limits set out in Art. 2758 para. 2 C.C.Q., subject to Art. 2767 C.C.Q. if the circumstances are appropriate.

[98] If these prerequisites are met, the court may then proceed with the appointment of the receiver if it is of the opinion that the appointment is fair and opportune, taking into account all the circumstances, including those identified in paragraphs [93] to [96] above, namely :

(6) the hypothecary creditor requesting the appointment of the receiver has acted in good faith and without being misappropriated;

(7) the appointment of the receiver and the powers conferred on the receiver will not prejudice the rights of the other creditors in such a way that their claims would be more in danger than in the event of the debtor's bankruptcy;

(8) the appointment of the receiver and the powers conferred on the receiver are not likely to prevent the implementation of a proposal under the BIA or an arrangement under the CCAA, to the extent that it is reasonable to believe that such a proposal or arrangement could receive the required approvals; and if

(9) these steps are justified in the particular circumstances of the case, taking into account the broader objectives of the BIA and insolvency law, including that they will contribute usefully to avoiding, to the extent possible, social and economic losses resulting from the liquidation of an insolvent business corporation while promoting the fair and orderly resolution of the debts of the target corporation. »

What must be retained from this decision and from the teachings of the Court of Appeal is first and foremost that the possibility for a secured creditor to appoint a receiver to put in place a bidding process for the sale of assets and then be authorized to sell to the highest bidder is not an option or a way to circumvent the applicable rules set out in the Civil Code of Québec, namely those of hypothecary recourses, in order to proceed more quickly. The Court of Appeal confirmed that the possibility of obtaining the appointment of a receiver under the BIA is in addition to hypothecary recourses when the debtor is insolvent and clearly established that the BIA, a federal law, may provide for other recourses for secured creditors than those already provided for in the Civil Code of Quebec. However, the BIA specifies that the two regimes must be able to operate in tandem.

It is now clear that an application made by a secured creditor under Section 243 of the BIA must necessarily comply with the rules and procedures set out in the Civil Code of Québec for exercising a hypothecary recourse, namely, it must be preceded by the service and registration of a Notice of Exercise pursuant to Article 2757 of the Civil Code of Québec and the time allowed for the debtor to remedy the defaults alleged under the notice must have elapsed. Once the prerequisites have been met, the other more specific criteria for the appointment of a receiver, which were reiterated by the Court of Appeal, may be analyzed by the Court, which will exercise its discretion as to whether or not to appoint a receiver.

Finally, it is important to note that if the circumstances are appropriate and the criteria of Article 2767 of the Civil Code of Québec are met, the Court of Appeal reiterates in paragraph 47 of its decision that "a creditor may immediately exercise his hypothecary rights when the court authorizes him to do so because it is feared that, without this measure, the recovery of its debt would be jeopardized, or when the property is likely to deteriorate or depreciate rapidly".

These amendments apply to any corporation, non-profit organization, partnership, business trust or sole proprietorship, as well as any other business carrying on commercial activities in Québec, whether incorporated in or outside the province.

The fight against tax evasion, fraud and money laundering has become an international priority in recent years, leading several countries, provinces and states to review the legal framework for businesses in this regard. In November 2017, Québec followed suit with the publication of the Action Plan to Ensure Tax Fairness¹, which sets out measures to be implemented to promote corporate transparency and increase the accessibility and reliability of the information contained in the Quebec Enterprise Registrar ("REQ").

On October 3^rd, 2019, the Quebec government launched a public consultation to gather comments on the measures and solutions being considered to strengthen corporate transparency. Several corporate stakeholders and members of the public, including the Canadian Bar Association, Quebec Division, and the Ordre des Comptables Professionnels Agréés du Québec (CPA) published briefs commenting on the measures proposed by the government. Based on the comments received, on March 10^th, 2020, Québec City tabled the 2020-2021 budget in the National Assembly, which largely includes the measures presented in 2017 and 2019.

It was in the midst of the COVID-19 crisis that, on March 17^th, 2020, the Quebec government finally adopted the Act Respecting the Implementation of Certain Provisions of the Budget Speeches of March 17^th, 2016, March 28^th, 2017, March 27^th, 2018 and March 21^st, 2019 which included some of the measures that had been announced in order to promote corporate transparency and the reliability of the information presented in the REQ.

This Act amends inter alia the Act Respecting the Legal Publicity of Enterprises (Chapter P-44.1) (the "Act") in order to, among other things:

• allow the REQ to require documents or information to validate the accuracy of declarations filed with the REQ or of a document transferred to a department or other government agency (Article 74.1 of the Act);
• add the names and domiciles of the three shareholders who hold the most votes to the list of information opposable to third parties in good faith (Article 98 of the Act);
• expand the list of Quebec bodies with investigative powers that may enter into agreements with the REQ in order to communicate all or part of the information contained in the register, the updates made to it, as well as the information or documents obtained to validate the accuracy of the declarations (Article 121 of the Act);
• set the limitation period for a criminal prosecution to one year from the date on which the prosecutor became aware of the commission of the offence and no more than five years have elapsed since the date of commission of the offence (Article 163.1 of the Act);
• give to the Minister responsible, in certain exceptional circumstances, the authority to waive the payment of a fee, penalty or charge (Article 79.1 of the Act).

Companies doing business in Quebec should therefore expect to have to demonstrate the veracity of the information to be declared to the REQ by transmitting, for example, copies of duly adopted resolutions or any other corporate documentation. For this reason, we stress the importance of always preparing and keeping the necessary corporate documents that comply with the legal obligations required by your company's incorporating act in support of the elements that must be declared to the REQ. Do not hesitate to contact our business law team to assist and advise you in the preparation of the necessary corporate documentation. 

The scope of the documents that may be requested remains uncertain and many wonder whether the REQ could, for example, require a copy of a unanimous shareholders' agreement that has been entered.

The issue is important, since, as before, the REQ may communicate all or part of the information and documents collected with a government department, agency or enterprise with which the REQ has, prior to, concluded an agreement. The Act already provided for this right before the new amendments came into force for certain departments and agencies, such as Revenu Québec, among others. The amendments adopted to the Act now add to this list:

• municipal bodies referred to in Article 5 of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information (Chapter A-2.1);
• organizations whose personnel are appointed in accordance with the Public Service Act (Chapter F-3.1.1), and;
• Commission de la construction du Québec.

Sensitive information could now become more easily accessible by the departments and agencies described above.

Although these amendments are a step forward in terms of corporate transparency, they are only some of the measures that were presented by the Quebec government in its 2017 Action Plan, in its 2019 public consultation, and then in its 2020-2021 budget presented on March 10^th, 2020.

The measures discussed for nearly three years, but are not currently in force, are aimed at adding the obligation for all companies doing business in Québec to obtain and declare to the REQ information on ultimate beneficiaries, that is on the natural person(s) benefiting from at least 25% of the control of the company, and also at adding the possibility for the public to conduct a company search in the REQ using only the name and address of a natural person who would act as director, officer or shareholder. This amendment would make it possible, for example, by entering the name of a natural person in the REQ's search tool, to obtain the complete list of all corporations with which that person acts as director, officer or shareholder.

In addition, regarding ultimate beneficiaries, it should be remembered that, as we presented to you last summer in our June 3^rd, 2019 article titled Société de juridiction fédérale : nouveauté dès le 13 juin, corporations incorporated under the Canada Business Corporations Act (Chapter C-44) (the "Federal Act") are now required to keep a register of individuals having significant control, that is a list of the natural person(s) having at least 25% of the control of the business. In this respect, the amendments presented in the 2020-2021 budget differ from those made to the Federal Act with respect to the intention of making information on ultimate beneficiaries public in the REQ, unlike the register of individuals having significant control at the federal level, which is not accessible to the general public from the outset. Several provinces, such as British Columbia, Manitoba, Saskatchewan and Prince Edward Island, have also adopted or tabled bills that substantially reflect the amendments made to the Federal Act.

At the time of writing, no bill has yet been introduced regarding the concept of ultimate beneficiary or search by natural person in Quebec. We will therefore closely monitor the situation to see if the provincial government will adopt these other measures previously announced and to assess their impact on the obligations of companies doing business in Quebec. In order to obtain ongoing legal information, please do not hesitate to subscribe to our mailing list for the business law sector and do not hesitate to contact our business law team for advice or assistance in the preparation of relevant documents to be sent to the REQ.

Most likely, you are beginning to feel a slowdown in your operations because the suppliers you deal with outside of the Canadian border have supply and/or production problems. Another possibility is that you have contracts with clients, distributors or partners that impose penalties in case of delays in delivery or production. It is quite possible that your business is already closed at the moment or that it will be forced to do so by tomorrow. Behind these legitimate questions lies the question of how you can lessen the impact of this crisis on your business. 

It should not be forgotten that several contracts include a force majeure clause allowing businesses to be released from their commitments for a certain period in case of an event beyond the control of the signatories of the contract. It is therefore strongly recommended in these uncertain economic times to have your contracts binding you and your partners reviewed in order to better understand the scope of these clauses as well as the necessary reasons to meet in order to invoke their necessity.

In the absence of a force majeure clause in your contracts, the Civil Code of Québec explicitly provides that a person may free themselves from their liability for injury caused to another by proving that the injury results from superior force, unless they have undertaken to make reparation for it.¹  However, the situation and its effects must qualify as force majeure. Some decisions of the court have already recognized the principle that an epidemic must meet the criteria of the law in order to be subject to the principle of force majeure.² Although there is currently no case law regarding the qualification of the current COVID-19 pandemic as being a case meeting the criteria of force majeure provided for in the Civil Code of Québec, it is necessary to specify with a fairly high degree of certainty that the effects on both sides of the contractual obligations of this pandemic will pass the test for qualification as force majeure by the courts later on.

When your contracts emphasize the notion of force majeure, it usually requires you to give written notice to your co-contractor to advise them of an event of force majeure and your willingness to use this as a reason for not complying with the entire contract.

Now, do all the obligations arising from a contract cease to apply when one of the parties invokes a case of force majeure? Not necessarily, because it is a case by case situation and it is more than recommended to analyze the full scope before systematically pleading force majeure.

In all cases, it is necessary that the wording of the clause and its effects be analysed in order to determine its application or non-application and the consequences of its application.

It is relevant to verify your insurance contracts in parallel with your commercial contracts that may currently be problematic, in order to validate before taking any action whether the commercial insurance you took out when you signed your contract covers the losses you have suffered. Commercial liability insurance policies generally do not cover force majeure, but rather liability arising from a fault or wrongful act of the insured. Pure economic loss resulting from a breach of contract is generally not covered or is generally excluded from most liability insurance policies. It is, however, advisable to declare to your insurer any loss that may jeopardize your cover as soon as you become aware of it.

It must also not be forgotten that the concept of force majeure has not been treated in the same way in all jurisdictions around the world. In particular, the other Canadian provinces have treated the concept of contractual force majeure differently under common law. It is therefore recommended to analyze the applicable regime for your contract in order to make the best business decision when the time comes to invoke contractual force majeure. For example, if your contract currently binds you to an Ontario business and it originated in Ontario, the principles discussed above will not apply in the same way.

In closing, if you are about to sign new commercial contracts, the notion of force majeure has never been as high a priority as it is in these times of economic instability. We strongly recommend that you consult a professional before signing a new commercial contract, even with a local company, because the issues surrounding COVID-19 can have serious consequences right now if you do not have good contractual protection. Furthermore, we also consider that identifying the elements of force majeure and the process for enforcing the elements that may allow this ground to be used in a contract are very useful, but it is strongly recommended that each of the clauses of this nature be specified and adapted to the different types of contracts and to each situation.

For any additional questions and for advice on how to properly manage your contracts in relation to the current situation with COVID-19, we invite you to contact our Business Law team. The team remains on the lookout for you.

Dear clients, business partners and friends,

We are aware your concerns about the spread of the COVID-19 pandemic and are following its evolution very closely. As we have previously communicated to you, we have established a COVID-19 Management Committee comprised of the CEO, the COO, our directors in the business offices and our managing directors.

Over time, we have adjusted our prevention measures according to the directives of the official authorities. Although not mandatory, we have strongly recommended telework to our people overt the past few days.

As of today, our teams will continue their teleworking operations to protect the health and safety of all. We will follow up on your requests with the same approach, commitment and collaboration. We will, however, meet with you through technological means. Access to our offices will be limited. We will ensure that we can serve you in case of an emergency or if a visit to our offices is necessary, while respecting the recommended preventive hygiene measures.

We remind you that we have put together a team of experienced lawyers and professionals to meet your needs during this difficult period. Please do not hesitate to contact us and subscribe to our newsletter to stay informed.

I would like to thank you for your understanding and trust during this difficult time for us all.

On behalf of the entire TCJ family, please know that we remain present and available in these unusual circumstances.

Take care of yourself, your families and your loved ones.

Sincerely,

Normand Therrien
Partner - President and CEO

In response to the situation, we have established a team made up of the Chief Executive Officer, the Chief Operating Officer, our office managers and our Managing Directors to share in real time the information provided to us by government authorities and the recognized media, as well as information from each of our offices, our practice groups and our partners and clients.

This team has put in place the appropriate measures to ensure the safety of our people (quarantine policy in case of symptoms and return from travel, cleaning, social distancing, etc.), our clients and our partners. We review them daily in light of the constant evolving information and instructions.

All our offices are open. However, we are prepared in case of a situation that would force the closure of one of them to continue operations from our other sites or telework as the situation may require.

Our Clients and Partners

We have also established a team of experienced and multidisciplinary lawyers and professionals to meet the needs of our clients and partners during this period. Whether you are a small or large business, a service company, a city, a health and social services institution, an educational institution or a community organization, you all have questions about what to do for your employees, your obligations towards your clients and suppliers, as well as many other questions.

Our team is here to help you make the right decision at the right time.

You could refer to Claudia Dubé and Jean-Luc Couture.

We also invite you to consult the WHO, the Government of Canada and the Government of Quebec websites for more information.

Here, you can see the importance that TCJ gives to individuals and to our collective well-being and my personal commitment in this regard will be unfailing!

While barely 6% of Canadian SMEs use an advisory committee, their financial results are by far superior after putting one in place¹. Such a committee is charged with the task of providing advice and recommendations to the owner regarding different facets of the business in order to promote its growth and good management. However, the people sitting on the advisory committee do not share the same duties and obligations toward the public, shareholders and creditors as the members of the board of directors. Members of the committee are only required to share their experience and opinions to help you make good decisions.

To put this type of committee in place you must invest a certain amount of time and money, which naturally begs the question - is it really worth it? In my opinion: ABSOLUTELY. However, if you want to maximize the beneficial effects that a committee may have on your business, care must be taken in choosing your collaborators and in ensuring their commitment.

As already mentioned, an advisory committee is not a substitute for a board of directors, however they have certain points in common regarding their governance. For example, an advisory committee meeting must be planned in advance just like a board meeting. An agenda and specific information regarding the meeting must be sent to members in advance to ensure that they will be properly prepared. If the members are not properly prepared, the advisory committee will lose much of its usefulness.

As for the size of the committee, the general rule is that the number of members should be limited in order to facilitate discussion. A committee of between four to six people, including you, will usually be enough to provide different points of view and a broad range of knowledge. The members must be qualified and well-respected and must be a good fit in terms of your strengths and weaknesses. For example, if numbers are not your strength, you will definitely benefit from the input of an experienced accountant on your advisory committee.

Moreover, you must be open to suggestions and criticisms of your advisory committee. Ignoring their feedback or reacting badly to any criticism from members of the committee is simply a waste of your time and money . Likewise, this type of committee will be unable to properly serve its purpose if it doesn’t have access to confidential information regarding the business, so you must be willing to share sensitive data. Good practice requires that a confidentiality agreement should be signed by members of the committee who are not bound by professional confidentiality.

In my experience, an advisory committee is a must for all SMEs as it can act as a trigger to boost the reputation of the business, stimulate it to innovate, improve its margins and help in managing human resources.  All these benefits are definitely worth the efforts required to put in place an effective advisory committee.

As a final point, quarterly meetings are recommended because this will not unduly burden the members of the committee and will give them sufficient time to prepare. I  would also suggest that you sufficiently compensate the members of your committee for their participation. This does not mean at the same rate that you pay members of your board of directors, but the amount must be significant enough to attract competent people who will take the time to diligently prepare for committee meetings.

If the benefits of an advisory committee appeal to you , don’t hesitate to contact one of our professionals regarding a seat on your advisory committee; we have the success of your business at heart. 

1 Business Development Bank of Canada, “Advisory boards:  an untapped resource for businesses,” (2014), on line: https://www.bdc.ca/en/about/sme_research/pages/advisory_boards.aspx

After almost ten years of prepatory work and official negotiations, the Comprehensive Economic and Trade Agreement (CETA) provisionally enters into force today, September 21^st, 2017, while waiting for further ratification by many European Union member states. Until it is fully ratified, most of its terms will still apply to Canada and the European Union as of today.¹ This agreement constitutes the most considerable bi-lateral trade agreement Canada has signed since NAFTA. After all, the European Union is the second largest world market for imports and Canada’s second largest commercial partner. It is no doubt that CETA constitutes an interesting and unprecedented business opportunity for the economic development of Canadian businesses who will be able to access the markets of the 28 European Union member states consisting of approximately 500 million consumers.

CETA represents a veritable competitive advantage for Canadian businesses, among other things, by improving export conditions, opening new markets and eliminating or reducing barriers to trade. One of the significant advantages of CETA is that 98% of tariff lines applicable to Canadian merchandise imported into the European Union are eliminated as of today. Prior to CETA’s provisional application only 25% of tariffs lines were duty exempt.

Canadian producers, manufacturers, and exporters in twelve sectors of the Canadian economy will be able to benefit from this new agreement, namely, the aerospace, agricultural and agri-food, automotive, clean-tech, fish and seafood, forestry and wood products, information and communications technologies, infrastructure, medical devices, metals, mining, and minerals, oil and gas, and pharmaceutical industries. All of these sectors include key exports from Quebec, including the vast market of manufactured goods, metals and mineral products.

Moreover, CETA’s rules of origin take into account current procurement and sourcing methods used by Canadian and European businesses, which, according to the Canadian Government may potentially allow for third-party countries whom the EU and Canada currently have free-trade agreements to be brought into one single free-trade area.

Exchanges between Canada and the European member states are also facilitated through the implementation of measures to improve border processing delays, simplify or automate customs procedures and establish a transparent and impartial review mechanism for customs decisions.

Through the provisions on regulatory cooperation established in CETA, it will equally be possible for Canadian products to be tested and certified in Canada under European regulations. Under CETA, products entering the EU must still comply with EU regulatory standards. However, Canadian products may now be certified under European Union regulatory standards in Canada, which facilitates product certification for goods exported by Canadian businesses.

Furthermore, CETA also facilitates the cross-border movement of qualified professionals, technologists, business people, and investors temporarily staying in the European Union or transferring temporarily within a business operating in Canada and the European Union. Canadian businesses will profit from greater certainty in regards to the creation of European subsidiaries and the installation, maintenance, and after-sale service offered in the European Union. The costs related to the export of merchandise will also be reduced and better foreseeable.

With certain exceptions, Canadian businesses will also have privileged access to public markets in the European Union. CETA permits Canadian businesses to bid on European calls for tender from municipalities, schools, universities, hospitals, public sector business and central governments, and this on a level playing field with their European counterparts. Furthermore, certain minimal thresholds requiring calls for tender in relation to the provision of goods and services by Canadian businesses have been lowered by the adoption of CETA.

According to a study done by Canada and the European Union in 2008, we can anticipate an annual increase of Canada’s GDP by 0.77%, 2.2 billion dollars of economic benefits for Quebec, and the creation of 16,000 new jobs. The free movement of professionals, the opening of certain markets, and the strengthening of Canada’s economic relations, and the stimulation of the Canadian economy are only some of the benefits that the provisional application of CETA will provide. The professionals at Therrien Couture are following CETA closely and are here to discuss its advantages and its provisional application. We will also keep you updated as CETA as ratified by the various European Union member state parliaments, a process which could be lengthy.

Altogether it is undeniable that this new agreement will position Canada and Quebec in the forefront of international commerce creating new opportunities for Canadian businesses, companies looking to create Canadian subsidiaries, and investment in Canadian markets.

This article was written with the collaboration of Christopher Jackson, lawyer.

For a number of years now, there has been a controversy in case law concerning the application of Section 243 of the Bankruptcy and Insolvency Act ("BIA") in Quebec, especially concerning the conditions under which such an application to the Court for the appointment of a receiver by a secured creditor may be granted.

On the one hand, some Superior Court judges were of the opinion that even in the presence of an insolvent debtor and an application for the appointment of a receiver in good and due form, a secured creditor must comply with the provisions applicable to hypothecary recourses (transmitting a prior Notice of Exercise and waiting for the expiry of the legal time limits contained therein) and therefore in the absence of compliance with these rules set out in the Civil Code of Québec, Section 243 of the BIA cannot be applied.

On the other hand, there was the thesis that the BIA somehow allows all requirements and rules of procedure applicable in Quebec law (security law) to be set aside, so that a secured creditor can use the vehicle provided for under Section 243 of the BIA without beginning the exercise of his or her hypothecary recourses as expressly provided by law.

The Court of Appeal was seized of an appeal filed by the Laurentian Bank of Canada ("LBC") following a judgment rendered by the Honourable Gaétan Dumas, S.C.J., which dismissed an application for the appointment of a receiver, first under Section 243 of the BIA and then under Section 47 of the BIA, of the property of the debtors Media5 Corporation and Essagal Acquisitions Inc. The purpose of the application at first instance is to allow the secured creditor, LBC, to be authorized to sell the debtors' businesses, through the appointed receiver, PricewaterhouseCoopers Inc. ("PWC"), as a going concern.

Here is how the Court of Appeal expressed itself in its unanimous decision of July 20:

« [97] To summarize, a hypothecary creditor may obtain the appointment of a trustee in bankruptcy as receiver under s. 243(1) of the BIA to sell the debtor's business if the following preconditions are met:

(1) the debtor is insolvent;

(2) the hypothecary security is for all or almost all of the inventory, accounts receivable or other property acquired or used by the insolvent debtor;

(3) such property is used in connection with the insolvent debtor’s affairs business;

(4) the notice required under Section 244 has been given and the time limit set out in Section 243(1.1) of the BIA has been met;

(5) the substantive and procedural requirements prior to the exercise of a hypothecary recourse set out in the Civil Code of Québec have been complied with, namely (i) the publication of a prior Notice of Exercise of a Hypothecary Right in accordance with the formalities set out in Articles 2757 and 2758 para. 1 C.C.Q., and (ii) compliance with the time limits set out in Art. 2758 para. 2 C.C.Q., subject to Art. 2767 C.C.Q. if the circumstances are appropriate.

[98] If these prerequisites are met, the court may then proceed with the appointment of the receiver if it is of the opinion that the appointment is fair and opportune, taking into account all the circumstances, including those identified in paragraphs [93] to [96] above, namely :

(6) the hypothecary creditor requesting the appointment of the receiver has acted in good faith and without being misappropriated;

(7) the appointment of the receiver and the powers conferred on the receiver will not prejudice the rights of the other creditors in such a way that their claims would be more in danger than in the event of the debtor's bankruptcy;

(8) the appointment of the receiver and the powers conferred on the receiver are not likely to prevent the implementation of a proposal under the BIA or an arrangement under the CCAA, to the extent that it is reasonable to believe that such a proposal or arrangement could receive the required approvals; and if

(9) these steps are justified in the particular circumstances of the case, taking into account the broader objectives of the BIA and insolvency law, including that they will contribute usefully to avoiding, to the extent possible, social and economic losses resulting from the liquidation of an insolvent business corporation while promoting the fair and orderly resolution of the debts of the target corporation. »

What must be retained from this decision and from the teachings of the Court of Appeal is first and foremost that the possibility for a secured creditor to appoint a receiver to put in place a bidding process for the sale of assets and then be authorized to sell to the highest bidder is not an option or a way to circumvent the applicable rules set out in the Civil Code of Québec, namely those of hypothecary recourses, in order to proceed more quickly. The Court of Appeal confirmed that the possibility of obtaining the appointment of a receiver under the BIA is in addition to hypothecary recourses when the debtor is insolvent and clearly established that the BIA, a federal law, may provide for other recourses for secured creditors than those already provided for in the Civil Code of Quebec. However, the BIA specifies that the two regimes must be able to operate in tandem.

It is now clear that an application made by a secured creditor under Section 243 of the BIA must necessarily comply with the rules and procedures set out in the Civil Code of Québec for exercising a hypothecary recourse, namely, it must be preceded by the service and registration of a Notice of Exercise pursuant to Article 2757 of the Civil Code of Québec and the time allowed for the debtor to remedy the defaults alleged under the notice must have elapsed. Once the prerequisites have been met, the other more specific criteria for the appointment of a receiver, which were reiterated by the Court of Appeal, may be analyzed by the Court, which will exercise its discretion as to whether or not to appoint a receiver.

Finally, it is important to note that if the circumstances are appropriate and the criteria of Article 2767 of the Civil Code of Québec are met, the Court of Appeal reiterates in paragraph 47 of its decision that "a creditor may immediately exercise his hypothecary rights when the court authorizes him to do so because it is feared that, without this measure, the recovery of its debt would be jeopardized, or when the property is likely to deteriorate or depreciate rapidly".

Published at Wilson & Lafleur inc., this one-of-a-kind work is the only dictionary one the subject of co-ownership in Québec and will be available as of today, at Condolegal’s online store.  

This dictionary gives jurists a fair and current understanding of the legislative framework of co-ownership in Quebec. It contains, amongst other things, specific terms in relation to co-ownership, the current nomenclature and legal concepts that will accompany the reader’s practice.

M^e Joli-Coeur also mentions other members of the TCJ firm and highlights their collaboration, " I would like to thank two colleagues who helped in the production of this book, namely lawyer Richard LeCouffe and Gabriel Stoicovici, law student. ".

" Yves has done a colossal job that only he could accomplish. " admires his colleague Julie Banville, partner at TCJ and responsible for the co-ownership sector of the firm.

About Yves Joli-Cœur

Member of the Quebec Bar since 1983, Yves is the founder and secretary general of the non-profit organization Regroupement des gestionnaires et copropriétaires du Québec (RGCQ). In 2009, he received the honorable distinction of Lawyer Emeritus (Ad. E.) for being among the lawyers who contributed the most to the reflection in the field of co-ownership law in Québec.  Since the beginning of his career, Yves has been involved in major projects such as the http://www.condolegal.com website, a tool for popularizing co-ownership law among the general public.

About Therrien Couture Joli-Cœur

Our firm offers a strong and distinct business model that relies on entrepreneurship, proximity, and innovation. We rely on a multidisciplinary team of over 400 people, including lawyers, notaries, tax specialists, trademark agents, CPAs, and human resources specialists. Located in six cities, namely Brossard, Laval, Montreal, Quebec City, Saint-Hyacinthe, and Sherbrooke, we position ourselves as an important player in the Quebec market.

-30-

Source:                 Elyse Macdonald

Director of Marketing, Communications and Business Development

450.773.6326, ext. # 2234

elyse.macdonald@groupetcj.ca

We are very proud to add two great strengths to our team of partners. A tax lawyer with a number of major mandates to his credit and who is also socially committed in the field of taxation, as well as an experienced notary who is both a strategist and trainer in many aspects of the notarial practice.

About TCJ’s new partners

Maxime Chouinard, a tax lawyer, practices mainly in tax law and business las. His expertise covers sales taxes (GST/QST) as well as income taxes, the recovery of tax debts, scientific research and experimental development (SR&ED) tax credits, as well as access to information, before both provincial and federal courts.

In business law, he mainly covers corporate reorganizations, the acquisition and sale of businesses, the implementation of asset protection structures and much more. He also assists and advises charitable and non-profit organizations on corporate matters and governance.

Nathalie Lafontaine-Jodoin, notary, works primarily in the field of estate liquidation, will and estate planning and much more. Her extensive experience and skills acquired in many areas of law allow her to assist her clients in their business and personal decisions.

She has had the opportunity to be involved in several associations, foundations and advisory committees as well as philanthropic and community organizations throughout her career.

About Therrien Couture Joli-Cœur

Our firm offers a strong and distinct business model that relies on entrepreneurship, proximity, and innovation. We rely on a multidisciplinary team of over 400 people, including lawyers, notaries, tax specialists, trademark agents, CPAs, and human resources specialists. Located in six cities, namely Brossard, Laval, Montreal, Quebec City, Saint-Hyacinthe, and Sherbrooke, we position ourselves as an important player in the Quebec market.

-30-

Source : Elyse Macdonald

Directrice formation, communications et marketing

450.773.6326 poste 2234

elyse.macdonald@groupetcj.ca  

Therrien Couture and Joli-Coeur Lacasse, two leaders in their field, are joining forces, creating Therrien Couture Joli Cœur. As a result, they will become one of the largest employers in Quebec’s legal sector, with more than 350 employees as of January 1, 2020.

For Éric Beauchesne, President and Chief Executive Officer of Joli-Cœur Lacasse and Normand Therrien, President and Chief Executive Officer of Therrien Couture, this is great news for both organizations. “It is clear that this combination will allow us to develop new markets and offer our customers a wider range of services. Through a distinct business model focusing on entrepreneurship, and our common visions and common values, customers will find the same professionalism, the same proximity and the same innovative spirit to which they are accustomed. This is part of our DNA,” stated the two new business partners.

With six business locations, in Brossard, Laval, Montreal, Quebec City, Saint-Hyacinthe and Sherbrooke, Therrien Couture Joli-Cœur will be able to offer expanded services tailored to businesses in all regions. Also, being a member of three international networks, the new entity will be able to support companies of all sizes in realizing their projects.

The challenges are great in the field of professional services: Business models are evolving, the digital shift is unavoidable and the introduction of new technologies is now inevitable. “As always, we want to be on the cusp of new trends to better serve our customers. Our merger will give us the momentum we need to achieve our growth objectives. We will have an enhanced ability to recruit, but above all, to realize major mandates, while offering a human-scale and stimulating work environment to our current pool of talent. In addition, the various joint ventures and subsidiaries of the Therrien Couture Joli-Cœur Group, including Hub6 and Edilex, will enable the organization to make its mark in the field of multidisciplinary professional services and remain a Quebec leader in Legal Tech,” concluded Normand Therrien, who will serve as President and Chief Executive Officer of the new entity, and Éric Beauchesne, who will become Chairman of the Board.

ABOUT THERRIEN COUTURE

Founded 25 years ago, Therrien Couture relies on a team of more than 185 people, comprised of a multidisciplinary team of experienced professionals including lawyers, notaries, tax specialists and human resources specialists. With five offices located in Saint-Hyacinthe, Brossard, Sherbrooke, Laval and Montreal, Therrien Couture is positioning itself as a major player in the Quebec market.

ABOUT JOLI-CŒUR LACASSE

Founded 36 years ago, Joli-Coeur Lacasse has a team of nearly 170 people, including more than 80 experienced professionals working in the main areas of law, in the two business centres of Quebec City and Montreal. Over the years, Joli-Coeur Lacasse has experienced several mergers and has earned an enviable position in the legal services market, serving a diverse clientele. Accessibility, excellence in its services, a multidisciplinary team and a workforce with a human dimension: This is what distinguishes Joli-Coeur Lacasse.

 1100 Blvd. René-Lévesque W., Suite 2000, Montreal (Quebec) H3B 4N4

 This move is in line with TCJ's positioning and growth as the 8th largest law firm in Quebec and in line with other offices under construction or renovation, i.e. with collaborative, bright and state-of-the-art work spaces. TCJ's management wishes not only to contribute to the well-being and development of its team, but also to distinguish itself as an employer of choice in the market.

 "We have chosen to bring our two offices together in one strategic location, in the tower at the intersection of Boulevard René-Lévesque West and Peel Street. In addition to offering our employees a modern and luxurious environment, the building holds LEED Platinum and BOMA Platinum certifications for sustainable development. A 6 minute walk from Central Station, a 5 minute one from Bonaventure metro and close to several restaurants, the location of our new office is a prime location. Our 20th floor offices will offer excellent visibility, high ceilings and full height windows to our employees, clients, and partners" says Pierre Chauvette, Partner and Director of Montreal.

As a very active lawyer and strategic advisor on the national and international scene ever since he left politics, the 29th Premier of Québec and former Deputy Prime Minister of Canada has joined TCJ as a partner.

Mr. Charest brings with him a high level of expertise. His experience with the public sector, and his vast network of contacts in the Americas, Europe, the Middle East and Asia will add strength to TCJ’s next phase of growth focused on developing new markets in Québec, Canada and internationally.

Mr. Charest will provide valuable advice on mergers and acquisitions and corporate governance, and his international experience will benefit our client base of medium and large companies. In addition, he will play a key role in helping implement and execute the firm’s strategic plan.

“Welcoming a lawyer of Jean Charest’s caliber provides momentum and further growth to our firm’s area of practice. Our teams and clients will greatly benefit from his experience and expertise,” said TCJ President and CEO Normand Therrien. “His energy, strategic abilities, the quality of his practice, and the fact that he fully embraces our values, will allow us to accelerate our growth,” he concluded.

“The common thread throughout my career has always been to surround myself with the best talent to carry out major projects. I am impressed by TCJ’s exceptional journey, its extraordinary growth, and its willingness to broaden its horizons to acquire an enviable position in the Québec market. Choosing a team that combines youth, energy and experience gives me a unique opportunity to contribute to the firm’s success,” explained Mr. Charest.

Mr. Charest will conduct his practice from our Montreal offices and will work from Sherbrooke as well. Returning to his place of birth and working with the region’s leaders also influenced his choice.

About Therrien Couture Joli-Cœur

Our firm offers a distinct business model that relies on entrepreneurship, proximity, and innovation. We rely on a multidisciplinary team of over 450 people, including lawyers, notaries, tax specialists, trademark agents, CPAs, and human resources specialists. Working from, Montreal, Quebec City, Laval, Saint-Hyacinthe, Brossard, and Sherbrooke, we have become a top-level firm in our areas of expertise in the Quebec and Canadian market.

About TCJ Group

TCJ Group is the company that brings together Therrien Couture Joli-Cœur, Edilex, OnRègle and Immétis. The high value-added strategic and legal support offered by its professionals, as well as its IT products and services for the automated drafting of legal documents, are part of our DNA. Our mission is based on boldness, accessibility, and an uncompromising commitment to the success of our clients and partners.

About the Honourable Jean Charest

Partner, Therrien, Couture, Joli-Coeur
Premier of Québec (2003-2012)
Deputy Prime Minister of Canada (1993)
Member of the Queen’s Privy Council for Canada

As Deputy Prime Minister of Canada and Premier of Québec, and with a public service career spanning almost 30 years, Jean Charest is one of Canada’s best known political figures. 

Jean Charest was first elected to the House of Commons in 1984 and, at age 28, became Canada’s youngest cabinet minister as Minister of State for Youth. In 1991, he was named Minister of the Environment and Minister of Consumer and Corporate Affairs and Registrar General and Deputy Prime Minister of Canada in 1993.

In 1994, Jean Charest was chosen Leader of the federal Progressive Conservative Party. He held that post until 1998 when he became Leader of the Quebec Liberal Party. Mr. Charest then broke a 50-year provincial record by winning three consecutive election campaigns in 2003, 2007 and 2008.

Furthermore, the Charest government initiated an unprecedented labour mobility agreement between France and Québec and was best known for a major initiative for the sustainable development of Northern Québec called “Plan Nord”. Jean Charest is notably the initiator of the negotiation for the Canada-European Union Comprehensive Economic Trade Agreement (CETA).  

He is today a Partner at Canadian firm Therrien, Couture, Joli-Coeur, where he provides invaluable expertise to the firm’s clients with his in-depth knowledge and experience with public policy, corporate Canada, and international matters. As a strategic advisor with a unique perspective, he supports clients on complex transactions, projects, and international mandates.

C’est avec grande tristesse que nous avons appris le décès de notre collègue, Me Yves Tourangeau, survenu le 28 mars dernier. Il était associé chez Gilbert Simard Tremblay (GST) avant l’intégration de ce cabinet chez TCJ. Yves possédait plus de 40 ans d’expérience en litige civil et commercial, avec une concentration particulière en droit des assurances.

En plus d’une implication diligente au sein de son Ordre et d’associations professionnelles, il était un juriste accompli, enseignant, médiateur et arbitre qui aimait jouer un rôle actif dans la transmission de ses connaissances. Ayant été président de l’Association du Barreau canadien, il était aussi un homme consacré au bénévolat et à sa communauté.

Yves laisse dans le deuil les membres de sa famille, de nombreux amis et amies et collègues de GST et TCJ.

En sa mémoire, il est possible de faire des dons à la Fondation Source Bleue, maison de soins palliatifs.

« Le départ d'Yves laisse un immense vide au sein de ses pairs et de ses proches. Son engagement et son dévouement étaient sans bornes, et il prenait toujours le temps de partager son expérience et son expertise avec ses collègues. Il avait une foi inébranlable en la relève, et pour moi, il a été un mentor hors pair. Je lui serai toujours reconnaissante pour son amitié, ses conseils et son soutien indéfectible, qui ont joué un rôle déterminant dans mon parcours.

Au nom de l'équipe et en mon nom propre, je présente mes plus sincères condoléances à sa famille et à ses proches.

Yves, tu nous manqueras terriblement. » - Panagiota Kalantzis, associée TCJ

As of September 22, 2022, private businesses and public sector organizations will have to notify the Commission d'accès à l'information (the "CAI") and the affected individuals of any incident of confidentiality involving personal information, which presents a risk of serious harm. Failure to do so may result in significant administrative and penal sanctions. This new obligation is included in the Act to Modernize Legislative Provisions Respecting the Protection of Personal Information LQ 2021 c 25 (“Act 25”). Act 25 aims to strengthen the current legal framework for the protection of personal information in Quebec, which until now has not included any obligation to report an incident of confidentiality.

What is an "Incident of Confidentiality"?

According to Section 3.6 of Act 25, the term "incident of confidentiality" refers to any access, disclosure or use of personal information that is not authorized by law, as well as the loss of personal information or any other breach of privacy. This definition encompasses many scenarios, including phishing attempts, loss of personal information, ransomware attacks, unauthorized disclosure of personal information by an employee or former employee, or accidental posting of personal information online.

Reporting to the CAI

When a company has reason to believe that an incident of confidentiality has occurred, it must first take reasonable steps to reduce the risk of harm and prevent future incidents of similar nature. If the company determines that the incident poses a risk of serious harm, it must report it to the CAI without delay in accordance with Section 3.5(2) of Act 25.  This requirement of mitigation also applies to any entity or third party that has custody or control of personal information.

In assessing the risk of harm to individuals whose personal information is involved in the incident, the organization shall consult with the individual responsible for privacy within the organization and consider the sensitivity of the information, the anticipated consequences of its use, and the likelihood that the information will be used for nefarious purposes.

Reporting to Individuals

Once a company has determined that reporting is necessary, it must notify any individual whose personal information is affected by the incident, or the CAI may order it to do so. The company may also notify any person or organization, such as a subcontractor or service provider, that may be able to reduce the risk of serious harm by disclosing only the personal information that is necessary for this purpose.  In this case, the consent of the individuals involved is not necessary, however, any such disclosure must be in writing (S. 3.5(2) of Act 25). 

Form and Content of the Notice

At this time, Act 25 does not set out specific requirements as to the form, content and manner of reporting, although these may be determined by regulation at a later date. In the event of an incident that poses a risk of serious harm, companies nevertheless would benefit from including the following information in their notice to individuals: (i) a description of the circumstances and the date or period when the incident occurred, (ii) the personal information affected by the incident, (iii) the steps the company has or intends on taking to reduce the risk of harm that may result from the incident, (iv) the steps that can be taken by affected individuals to reduce the risk of harm or to mitigate such harm, and (v) contact information so that individuals may obtain more information about the incident.

Creation of an Incident Register

Act 25 also requires companies to keep a record of any confidentiality incident, whether or not it represents a risk of serious harm. Upon request from the CAI, the company must send it a copy of this register (S. 3.8 of Act 25). 

Conclusion

In order to comply with these new obligations and other provisions of Act 25, organizations must implement an information governance program without delay, including a governance plan, ongoing training for employees and business partners, and deployment of the appropriate technology. Our team can help you implement a comprehensive governance program within your organization and provide you with customized advice for assessing, monitoring and enforcing compliance.

***Please note that personal information processed by a Quebec company may also be subject to other legal regimes, including the Federal privacy act (Personal Information Protection And Electronic Documents Act S.C. 2000 C.5) where notification of incidents of confidentiality for incidents that pose a real risk of significant harm to individuals is already mandatory. ***

To read the article in the Extrajudiciaire of Young Bar of Montreal, click here.

However, many may be shocked to learn that there is also a limit on how much alcohol one can bring across provincial borders in Canada. This limit stems from an anachronistic law that dates back to 1928, the Importation of Intoxicating Liquors Act¹. Dating from a period when prohibition was in full force in the United States, this law makes it an offence for any person to import or transport alcohol across provincial borders². Many members of parliament, including Prime Minister Justin Trudeau, have confessed that they have unknowingly broken the law by bringing home bottles of wine from vineyards in Canada³. This has led many to question whether this restriction is out of sync with present Canadian values⁴. Furthermore, recent case law addressing this issue has led some to question whether this restriction is unconstitutional. 

•    Legal Limits on Alcohol
Several amendments to the Liquors Act have been passed, but most provinces still limit the amount of alcohol one can transport or export across provincial borders. For instance, in Quebec and Ontario, an individual may, for personal use, bring into the province a maximum of 3 litres of spirits, 9 litres of wine and 24.6 litres of beer⁵. In New Brunswick, the Liquor Control Act⁶ specifies that an individual is prohibited by law from having in his possession more than 12 pints of liquor purchased outside the province⁷. 

•    Summary of R v. Comeau
In R v. Comeau⁸, Mr. Gérard Comeau decided to travel from New Brunswick, where he resided, to Quebec in order to buy alcohol at a lower price. Unbeknownst to Mr. Comeau, the RCMP was targeting individuals bringing more than five cases of beer over the border. Mr. Comeau was intercepted on his return to New Brunswick with 15 cases of beer and three bottles of liquor. The alcohol was seized and Mr. Comeau was fined for violating the NB Liquor Control Act. While the RCMP officers felt that they were merely applying the law, for Mr. Comeau the charges were an immense shock. In fact, it would seem that he was not the only cross border shopper; two thirds of the customers purchasing alcohol at the stores on the Quebec border were from New Brunswick. The important question raised in this case was whether this restriction violated the Constitutional rights of Canadians to enjoy free trade across provincial borders. 

•    The Debate
Cases such as this, have opened the debate in public and legal circles. The debate stems from an interpretation of section 121 of the Constitution, which states that all goods may “be admitted free into each of the other Provinces.” This section was first interpreted in 1921 to mean that goods moving across provincial borders cannot be charged duty. This means that any restriction with regard to limitations on the type and quantity of a good is constitutionally valid. In the Comeau case, the honorable Judge Ronald LeBlanc provides a meticulous analysis to determine whether the initial interpretation of section 121 was accurate. According to Judge LeBlanc, the Supreme Court erred in 1921, which has since led to the disuse and neglect of section 121 for nearly a century. The initial fathers of the confederation of Canada meant to allow free trade across provinces without any trade barriers⁹. Judge LeBlanc notes that restricting the meaning of section 121 to mean “trade without tariffs” is too restrictive as the true purpose of the section is to encourage free trade, not to limit it.

•    The Implications
While the decision itself is important and resonates within the legal community across Canada, this case is bound to garner even greater attention in the future. On May 5, 2017 the Supreme Court of Canada granted leave to appeal the decision. The implications of this appeal are enormous. The Supreme Court will likely either confirm or reinterpret section 121 of the Constitution. After 95 years of dormancy, a reinterpretation of section 121 could substantially change interprovincial trade and Canadians will finally know whether transporting alcohol over provincial borders is a right protected by the Canadian Constitution¹⁰.  Some fear this may open the floodgates to a plethora of unexpected changes to interprovincial trade. In the meantime, the media surrounding this debate has led many Canadians to discover that they have been unknowingly breaking the law and it remains to be seen whether such cross-border shopping trips will continue to be illegal. 
 

  Parliamentary Debate, Bill C-311 an Act to Amend the Importation of Intoxicating Liquors Act (Interprovincial importation of wine for personal use) 41st par, 1st sess (2013) online at https://openparliament.ca/bills/41-1/C-311/ [Parliamentary Debate].
  Importation of Intoxicating Liquors Act RSC 1985 c 1-3. (hereafter referred to as the “Liquors Act”)
  Justin Trudeau, comments as representative of the liberal party Papineau constituency http://www.ourcommons.ca/DocumentViewer/en/41-1/house/sitting-129/hansard
  Parliamentary debate, supra note 1. 
  Regulation respecting the possession and transportation into Québec of alcoholic beverages acquired in another province or a territory of Canada c S-13, r 6.1; Bill C-311 Amendment to the Importation of Intoxicating Liquors Act. 
  Liquor Control Act, RSNB 1973, c L-10 [NB Liquor Control Act]
  NB Liquor Control Act ibid 43(c).
  R v. Comeau 2016 NBPC 3
  Ibid see para 101. 
  Section 121 Constitution Act of 1867 available online at http://www.justice.gc.ca/eng/csj-sjc/just/05.html.
 

This voluminous bill contains a division devoted to intellectual property strategy. Below is a brief overview of the proposed changes contained in each of the subdivisions of the IP section of Bill C-86.

Subdivision A – The Patent Act

• Standard-essential patents (SEP)- The Governor in Council would be granted powers to establish a definition and regulate licensing requirements for SEP’s. SEP’s are patents that protect an invention that is essential for certain technologies (ex: Wi-Fi or Bluetooth). Under Bill C-86, any licensing commitments made by the patentee in reference to a SEP will bind any subsequent patentee.
• Prior User Rights - Prior use rights contained in the Patent Act would be broadened to include acts, in good faith, that would otherwise constitute an infringement, if the use was before the earliest filing and the third party did not commit the act only because they obtained information about the restriction from the patent applicant. Third parties, who commit this same act on or after the claim date, would benefit from an exemption.
• Experimentation – An exemption from infringement would be introduced if the alleged act was committed for experimentation.
• Written Demands- Written demand letters concerning patent infringement sent to alleged infringers in Canada would be subject to minimum requirements, which will be determined by the Governor in Council.

• Patent Prosecution History - Prior statements made by a patent applicant, including patent prosecution history, would be admitted into evidence during the prosecution of a patent application.

Subdivision B- Trade-marks

• Bad Faith Opposition and Use - A “Bad Faith” opposition would be introduced to oppose or invalidate a registration of a trade-mark. This modification would address concerns domestically and abroad in relation to “trade-mark trolls”. Also, in the first three years following the registration of a trade-mark, its owner, must prove that they use the trade-mark or justify the absence of use to obtain any relief for infringement.

• Public authority prohibition – The Bill would eliminate the prohibition that prevented a person from using a mark that is identical or similar to that of a public authority, if the public authority has ceased to exist, or is not a public authority.

• Evidence during an appeal - If a registrant appeals the decision of the registrar, Bill C-86 provides that new evidence to support the application for a trade-mark can only be filed with permission from the Federal Court.

• Enable Registrar to grant orders - The proposed amendment imbues the registrar with the authority to award costs, to grant confidentiality orders, case management in certain proceedings.

Subdivision C- Copyright Act 

Bill C-86 proposes a modification to the Copyright Act that addresses concerns from the public in relation to aggressive demand letters sent through the notice and notice system.The Bill proposes prohibiting the inclusion of settlement offers, payment demands, or requests for personal information in the demand letter, or hyperlinks alleging infringement. Moreover, ISP’s duties under the Copyright Act would only be engaged for an infringement notice that respects these restrictions.

Subdivision D- College of Patent Agents and Trade-mark Agents Act 

A regulatory body would be formed to create standards for patent and trade-mark agents.

Subdivision E - Amendments relating to the preservation of usage rights

The proposed amendments to the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act would protect IP users when these rights are sold in the context of insolvency proceedings. 

Subdivision F -Privileged Information 

The Access to Information Act and Privacy Act would be amended by permitting the head of a government institution to refuse to disclose information provided the information is subject to privilege under the Trade-marks Act or in the Patent Act.

Subdivision G - National Research Council Act 

The National Research Council Act would be amended to clarify that this entity has the authority to dispose of all the intellection property rights that it holds. This section clarifies that any invention made by a public servant and patents that may follow are vested in the Council.

Subdivision H - Copyright Act (Copyright Board Reform) 

 The framework governing the Copyright Board would be amended to improve timeliness and clarity. It would also imbue the Board with powers to fix fair royalty and levy rights.

Conclusion

Bill C-86 contains numerous proposed amendments dealing with rights and the overall structure of IP in Canada. Many of the amendments align Canadian IP more closely with its international obligations and seek to clarify and modernize elements of Canadian IP legislation. As Bill C-86 makes its way through the twist and turns of becoming law, we will continue to write on the proposed modifications and their possible impact.   

The term “contaminated” instantly conjures to mind several frightening images of toxic chemicals and glaring liability. There are several common contaminants that one may recognize such as petroleum hydrocarbons, metals or metalloids, asbestos, and pesticides. However, this is only to name a few among many. Confronted with such a situation, one may wonder how to proceed. Several important steps may be followed to mitigate damages, protect your rights and ensure the situation is not as dire as anticipated. 

Is the Soil Contaminated?

Step 1: Have the soil tested by a professional; this will determine whether the level of contamination exceeds the legal limit.  In Quebec, contamination levels are outlined in the Environment Quality Act¹. This law distinguishes between contamination levels for a commercial and a residential property. Contamination thresholds are considerably more stringent for residential properties when compared to commercial properties². However, zoning and location can play an important role in deciding contamination levels. If a business operates in a residential area, or near a park, or a school, it may be subject to the higher residential standard.

The relevant regulation contains several schedules, which list the various contaminants as well as how much of that particular contaminant is permitted before the soil is considered to be contaminated. Briefly, if the amount of the contaminant exceeds this threshold, then the soil is contaminated.

The Soil is Contaminated How to Proceed?

Step 2: To ensure sufficient protection in the case of contamination, one should immediately contact an attorney to know one’s rights.  It is essential to explore all options with a legal specialist before proceeding with any decontamination. Exceptional circumstances may apply if decontamination is urgent, but generally, it is best practice to identify who is responsible for the contamination and the various actors involved before proceeding. If one does not act prudently and judicially inform the right individuals in a timely manner, one may forfeit their rights to certain legal remedies.

Step 3: While contacting an attorney, it is also important to contact any and all insurance providers to verify whether any applicable policies include coverage for contamination.

Step 4:  Subsequently, one must decide whether to decontaminate and at which moment. Your legal adviser can surely assist you with this decision. In most cases of residential contamination, there is no obligation to decontaminate, even if the threshold limit of contamination is surpassed. Nonetheless, it is recommended to contact the Minister to verify that no special circumstances apply for certain types, or quantities, of contamination. 

Available Recourses

Step 5:  Several legal recourses are available for a commercial or a residential property if the contamination is caused by a third party or if it existed at the time of sale, such as:

- Neighboring Property: If the contamination is directly caused by a neighboring property, a remedy is available against one’s neighbor, whether or not he or she is at fault.

- Latent Defect: a recourse under is available under the legal warranty ifthe contamination meets the criteria for a latent defect. The contamination must be³:

• Serious;
• Above the applicable legal threshold of contamination at the moment of sale;
• Hidden at the time of sale; and
• In commercial matters, the contamination must also prevent the property from being used for its intended purpose to constitute a hidden defect⁴.

- Violation of Public Law: A second legal warranty is availableif the contamination exceeded the threshold amount at the moment of sale, and the seller warranted that the property did not violate any public law.

- Fraud: It is important to note that recourses pertaining to a legal warranty, either for latent defect or the violation of public law, may be limited. This occurs, if the property was sold without any guarantee, or at the risk and peril of the purchaser⁵ However, a limit to any legal warranty will not apply if the seller knew of the contamination and fraudulently concealed this fact. This means that even if one were to purchase at his risk and peril, he may still have a recourse if the seller knew of the contamination prior to the sale.

Conclusion

Dealing with a case of contaminated soil can be complicated, especially when several parties are involved. Moreover, environmental laws are subject to change, thus thresholds levels for contaminants may vary throughout time. Although several recourses are available, it is important to act quickly in identifying contamination and proceed prudently to protect one’s rights.

Bill 64, An Act to modernize legislative provisions as regards the protection of personal information, approved unanimously by the Quebec National Assembly in its first reading on June 12, 2020 will, if enacted, enhance the protection of data that is collected by public bodies and businesses within the province of Quebec. While the legislation may still be heavily amended, the bill in its current form includes many changes to Quebec’s existing framework for using, obtaining, maintaining and destroying data. 

Using Data:

One of the changes that may be enacted is an increase in the comprehensiveness of consent required to use data within the province.¹

According to clauses 9 and 102 of the bill, amending section 53.1 of the Act respecting Access to documents held by public bodies and the Protection of personal information, CQLR c A-2.1 and section 14 of the Act respecting the protection of personal information in the private sector, CQLR c P-39.1, respectively, consent for using an individual’s data must be obtained each time for each  purpose.² In addition to having specific consent, the language used to obtain consent must be drafted in a manner that is easy to understand.³ The bill also places a positive obligation on organizations to help individuals understand the scope of the consent they are providing.⁴ The extent of help or assistance required under the bill is not clear at this point. It will be noteworthy to see how this provision will be applied to businesses and what level of assistance will be required, should this section be enacted in its current form.

The required level of consent rises to express consent when the data in question is labeled as sensitive personal information.⁵ Information is designated as sensitive “if due to its nature or the context of its use or release, it entails a high level of reasonable expectation of privacy.”⁶ While we do not know how the term sensitive will be interpreted by the courts, the meaning of the term may be elucidated by the interpretation of this same term in the federal privacy law, The Personal Information Protection and Electronic Documents Act (PIPEDA).

While PIPEDA does not provide an exhaustive list of what could constitute sensitive information, it does mention in Schedule 1 that income information and medical information are generally considered sensitive information.⁷ Additionally, the Supreme Court of Canada has affirmed that financial data is normally considered to be sensitive.⁸

To further illustrate what kind of information may likely be considered as sensitive by Bill 64, the Privacy Commissioner of Canada has also stated in regard to PIPEDA that information regarding sexual interests are sensitive, when, for example, taken by a dating service (ex: Ashley Madison).⁹ The bill states that information can be either intrinsically or situationally sensitive.¹⁰ If one reads this in conjunction with the PIPEDA, which contains similar flexibility, this provision could mean that some information that is generally not sensitive, could be viewed as such depending on the context.¹¹ PIPEDA gives the example of how a magazine’s subscriber list can be considered as sensitive information depending on the nature of the magazine.¹² A more modern example could be found in returning to the Privacy Commissioner’s decision regarding Ashley Madison.Whereas email addresses and names can in some cases be found to be unimportant personal information, they become highly sensitive if associated with an online dating platform such as Ashley Madison.¹³ Sensitivity may also decrease depending on the context; while financial information is usually quite sensitive, it may, depending on the context, be regarded as less sensitive.¹⁴ For instance, financial information, such as a balance of an outstanding mortgage, which has related information already available in the public domain for a legitimate purpose, may be considered less sensitive depending on the circumstances and other factors.¹⁵

In terms of distinguishing between express and implied consent, the Federal Privacy Commissioner has suggested that an opt-in system can represent express consent, whereas an opt-out system can represent implied consent.¹⁶ A similar framework could be integrated into the interpretation of Bill 64.

In addition to the new requirements for more explicit consent, the bill would institute special rules for using and collecting data from individuals under the age of 14.¹⁷ Parental consent would generally, barring some exceptions, become necessary for collecting this data.¹⁸ Furthermore, consent is only valid for the time necessary to achieve the purposes for which it was requested.¹⁹

Holding Data:

The bill as it is currently written includes a new conditional right for individuals to demand that a person carrying on an enterprise cease disseminating information or de-index any hyperlink attached to the individual.²⁰ This order can be compelled in circumstances where dissemination of the information is in violation of the bill or where the following three requirements are met:

“(1) the dissemination of the information causes the person concerned serious injury in relation to his right to the respect of his reputation or privacy;

(2) the injury is clearly greater than the interest of the public in knowing the information or the interest of any person in expressing himself freely; and

(3) the cessation of dissemination, re-indexation or de-indexation requested does not exceed what is necessary for preventing the perpetuation of the injury.” ²¹

The bill also provides additional information for assessing these criteria. It appears that this list is not exhaustive and other factors may be considered.²² It may be relevant to see whether these criteria undergo any modifications before the bill gains force of law.

Organizations should either destroy or anonymize information that they no longer have a reason to maintain.²³ To anonymize data means to go through a procedure whereby the information can continue to exist, but can no longer be associated with a specific individual.²⁴ Specifically, the bill states that “information [..] is anonymized if it irreversibly no longer allows the person to be identified directly or indirectly”.²⁵ For information to be “irreversibly” anonymized, the process cannot be reverse engineered.²⁶ The process should be based on “generally accepted best practices.”²⁷ Undoubtedly, the courts will be involved in defining this standard of “generally accepted best practices” if further information is not provided by the legislature.

Furthermore, individuals can request that a business share the information they are holding on them.²⁸ The businesses receiving such requests must confirm if they hold any information.²⁹ Organizations must be prepared, where applicable, to provide a copy of the data they hold on an individual in a technological format.³⁰ Moreover, it specifies that at the request of the individual, the technological format of the information should be one that is commonly used.³¹

Transferring Data

Another major component of the bill is the inclusion of enhanced protection for data that is transferred outside of Quebec. According to the proposed piece of legislation, when seeking to transfer data outside of the province, a privacy assessment must be done to determine whether the data exported from the province will receive a similar level of protection outside of Quebec as it does within Quebec.³² Should the potential transfer be found not to provide an equivalent level of protection, the data would be barred from transfer.³³ Where transfers are permitted following the assessment, they must be accompanied by a written agreement between the parties.³⁴ This requirement is far more stringent than the federal legislation, which has a general requirement to use agreements or other methods to provide comparable levels of protection to data transferred to third parties, without necessarily conducting a preliminary assessment.³⁵

Administrative Requirements

The bill proposes several changes to the culture of data collection, utilization and dissemination. One way it seeks to do this is to compel organizations to complete a privacy assessment on information systems and delivery systems, projects that utilize, disseminate, hold or destroy personal information.³⁶ Furthermore, absent delegation, there is a presumption that those exercising the highest authority within an organization are responsible for protecting the data held by the organization and ensuring their organization’s compliance with the law.³⁷ Transferring such obligations to another person can be done in writing.³⁸ The requirement of identifying an individual to ensure adherence to the law is also found in PIPEDA; however, there is no assumption that the individual with the highest level of authority is responsible for implementing PIPEDA.³⁹ If this section is enacted, it will be necessary for businesses dealing with personal information to ensure they delegate this responsibility to the appropriate individual within their organization. At present, this task can only be delegated to a “personnel member”.⁴⁰ Our interpretation of this provision would indicate that an organization cannot outsource this responsibility of protecting personal information to any third party.⁴¹

Penalties for Non-Compliance

Businesses that do not follow certain requirements set forth in the bill could be forced to pay large sums. For example, administrative penalties created by the proposed law can be as high as 10 million dollars or 2% of the company’s global turnover, whichever is the highest.⁴² Penal penalties are even higher with a maximum fine of 25 million dollars or 4% of the company’s global turnover, whichever is the highest.⁴³

In addition to these legislative penalties, there is also an avenue for individuals whose rights have been violated and who have suffered as a result of that violation, to sue the business responsible for damages.⁴⁴ In circumstances where the violation can be proven to be the result of deliberate or gross fault, punitive damages can be awarded, starting at a minimum of $1,000.⁴⁵

The monetary penalty structure proposed is far harsher than PIPEDA, which has a maximum of only $100,000.⁴⁶

Incident

The bill also imposes legal requirements on organizations that are the victims of security incidents relating to personal information.⁴⁷ An incident, is defined as the access, use, release or loss of personal information that is not permitted under law or any other violation to the security of the data.⁴⁸In these circumstances, the organization must:

1. Take steps to reduce the harm caused by the incident
2. Inform the person, whose information is involved in the incident if there is a chance of serious harm as a result of the incident
3. Notify the Commission d’accès à l’information if there is a chance of serious harm as a result of the incident.⁴⁹

This section also provides that a government regulation may determine the content and terms of the notice.⁵⁰ These provisions resemble the regime in place under PIPEDA and the notion of “serious harm”. One can imagine the regulations under the bill will mirror the regulations enacted under PIPEDA, which set out the content, manner, and form of the notices to be provided to individuals.⁵¹

Conclusion:

Bill 64, in its current form will update Quebec’s privacy regime in a dramatic and significant way. While the legislation may still be heavily altered before it comes into force, the overall trajectory of the legislation is clear: Quebec wants to provide stronger protections for personal information.

Ransomware, data leaks, identity theft, fraud, and the unauthorized collec­tion and resale of personal information, are all buzzwords that quickly gain enor­mous media attention during the chaos of 2020. Individuals are beginning to speak out against the use of their information by corporations and many countries are be­ginning to listen. Significant policy changes are occurring on a global level and Canada is neither the first nor the last to strengthen its domestic policy.

Incorporeal goods, such as data, are notoriously difficult to keep within the bounds of one nation. Consequently, changes to the privacy practices of one country can have tremendous influence on an international scale.

In Canada, the federal and provincial governments have begun to take concrete efforts to strengthen their legislation governing how businesses handle personal data. Many have noted that Canada is following the stricter enforcement trend initiated by the European Union and found in the General Data Protection Regulation ("GDPR")[1].

The GDPR was adopted on 14 April 2016 and became applicable starting on 25 May 2018. The Regulation was very innovative at the time and, after its adoption, it became a model for many national laws outside the European Union. It appears that Canada and some of its provinces are now following in the footsteps of the GDPR with the new legislation it adopted at the end of 2020.

Canada has two federal privacy laws that are enforced by the Office of the Privacy Commissioner of Canada. The Privacy Act[2] regulates how the federal government handles personal information, whereas the Personal Information Protection and Electronic Documents Act[3] (PIPEDA) controls how businesses handle personal information.

PIPEDA applies across Canada, but is pre-empted by privacy legislation enacted by a province if that legislation is substantially similar[4]. Of Canada’s ten provinces and three territories, only three provinces have opted to enact or maintain their own privacy legislation (Alberta, British Columbia and Quebec). Federally regulated businesses that conduct business in Canada are always subject to PIPEDA regardless of their location in Canada. Furthermore, information that crosses provincial or national borders in Canada is subject to PIPEDA regardless of where the business is located.

For this reason, changes to privacy legislation at the federal level have an enormous impact on business across Canada. Currently, both the federal government and the provincial government in the province of Quebec are implementing new rules.

In Canada, in November 2020, Parliament approved Bill C-11, An Act to Enact the Consumer Privacy Act and the Personal Information Protection and Data Protection Tribunal Act and to make consequential and related amendments to other Acts (“Bill C-11”).

In Quebec, in June 2020 the National Assembly approved Bill 64, An Act to Modernize Legislative Provisions Respecting the Protection of Personal Information (“Bill 64”)[5].

If passed, these Bills will strengthen the protection of personal information collected by private institutions. Even if these Bills are not passed “as is”, we can expect a number of these measures to be enacted in the coming years.

These Bills include the following measures:

• Stricter restrictions on consent to the use of an individual's personal information, and a guarantee that the information will only be used for the intended purpose.
• Stricter requirements regarding the wording of the request for consent, which must be written in a manner that is easy to understand.
• Special rules regarding consent when dealing with "sensitive" information. Information is designated as "sensitive" if, because of its nature or the context of its use or dissemination, it involves a high level of reasonable expectation of privacy.
• The requirement to appoint an individual within the organization who will be responsible for compliance with applicable legislation.
• Enhanced rights are given to individuals to determine how their information is handled and whether they want their information destroyed or no longer disseminated. These rights differ according to the proposed legislation.

Another important element is the new restrictions on data transfers between jurisdictions. The provincial legislation requires additional measures when seeking to transfer data out of the province. An assessment of the protection afforded must be made to determine whether the exported data will benefit from a similar level of protection as the domestic data. If it is determined that the destination of the potential transfer does not provide an equivalent level of protection, the transfer of the data will be prohibited. Where transfers are allowed following the assessment, they must be accompanied by a written agreement between the parties.

This requirement is much stricter than under federal legislation, which provides for a general obligation to use agreements or other methods to ensure comparable levels of protection for information transferred to third parties, without necessarily conducting a preliminary assessment.

In both cases, if foreign jurisdictions do not have adequate safeguards in place, it will be necessary to put in place rigorous contracts to ensure the protection of information. Otherwise, the company that transferred the information could be held liable in the event of an incident or a breach. Key point: if you want to do business in Canada or with Canadians, you may be required to conform to Canadian privacy standards.

Overall, these Bills provide for more stringent legislation on the handling of personal information, greater responsibility on the part of businesses, greater control mechanisms on the part of regulatory authorities in the event of an incident, as well as stricter penalties for businesses that do not comply with the law.

The sanctions proposed in the Bills far exceed those that existed before. If the Bills are adopted, companies could be fined between $10 million and $25 million or a percentage of their revenues. These sanctions are similar to the GDPR, which sets a maximum fine of €20 million or 4% of annual worldwide turnover for infringement. These percentages and the way they are calculated differ. In the proposed provincial legislation, the amount is between 2% and 4% of the company's annual revenues, while in the proposed federal legislation, the amount is between 3% and 5%.

By comparison, in the United States, various levels of regulators may issue penalties, but there is no unified legislation or authority throughout the United States thus penalties can vary widely.

As many countries, including Canada, are adapting their legislation to keep pace with trends in the GDPR, one of the lingering questions is whether this will have an impact on the United States.

Businesses today are highly dependent on technology, and even more so since the global pandemic. Personal information is ubiquitous, and few businesses can operate without it. Authorities in Canada are committed to restricting the use and handling of personal information. The consequences of not complying with these new restrictions once they take effect could be devastating for businesses.

On November 17, 2020, the Innovation, Science, and Industry Minister Navdeep Bains introduced Bill C-11, An Act to Enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts (CPPA). If enacted, the bill will enhance the protection of data that is collected by private institutions throughout Canada. The legislation is still at the stages of its first reading and will likely be amended substantially before its enactment. Nonetheless discussion of the bill in its current form is relevant to understand where the wind of change is blowing in relation to privacy legislation in Canada. In its current form, the bill includes many changes to Canada’s existing framework and repeals large sections of the current federal privacy law The Personal Information Protection and Electronic Documents Act (PIPEDA). Bill C-11 also implements the ten principles contained in the Canadian digital charter which is not a legal document and for this reason, it has no legal force. Therefore, the proposed law is an important step towards giving Canadians greater control over their personal data. 

The New Privacy Law and PIPEDA

The CPPA repeals Part 1 of PIPEDA but does not entirely dismiss its content or principles. The CPPA embeds the principles, once found in the annexes of PIPEDA, directly into the legislation. This change is substantial as these dispositions will, if enacted, have the force of law.  

Part 2 of Bill C-11 enacts the Personal Information and Data Protection Tribunal Act, which establishes an administrative tribunal to hear the appeals of certain decisions made by the Privacy Commissioner and to issue penalties for non-compliance.

It is worth noting that among the privacy rules found in PIPEDA, the following are also found in the CPPA: accountability, appropriate purposes, limiting collection, use and disclosure, retention and disposal of personal information, accuracy of personal information, security safeguards and openness and transparency.

The CPPA also has a new purpose; it is worth taking the time to quote this purpose directly:

“The purpose of this Act is to establish — in an era in which data is constantly flowing across borders and geographical boundaries and significant economic activity relies on the analysis, circulation and exchange of personal information — rules to govern the protection of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances”.<SUP>1</SUP>

At a time when the theft of personal data is on the rise and web giants are cultivating vast quantities of data on Canadian users, the question of data privacy has never been more relevant. The CPPA acknowledges the trope that states when services online are free often the consumer is the product and their data is the true prize. If we assume the purpose as outlined above will continue to be a guiding principle, we can expect the CPPA will change matters considerably in reference to the use of this data. We can expect to see change on this front even if the final version of the bill is greatly modified.

The Enforcement of the CPPA

Unfortunately, PIPEDA is notorious for its ineffective enforcement model. In reference to the CPPA, the Office of the Privacy Commissioner of Canada (the “Privacy Commissioner”) will no longer be limited to non-binding penalties. Rather, the bill is designed to increase the power of the Privacy Commissioner. This will enable the Privacy Commissioner to issue orders requiring organizations to comply with the requirements of the CPPA, and to force an organization to stop collecting data or using personal information.

Regarding the penalties, businesses that dare to defy the law, if enacted, could face fines up to $25 million or up to 5% of their annual revenue. In the case of less serious offences, the penalties are substantial, being the higher of $10,000,000 or 3% of the organization’s gross global revenue in its financial year preceding the year the penalty is imposed.<SUP>2</SUP>

As mentioned above, Part 2 of Bill C-11 enacts the Personal Information and Data Protection Tribunal Act. The new Tribunal, composed of three to six members, will hear the appeals of the Privacy Commissioner’s decisions during public hearings. The Tribunal will have the power to impose penalties, but also to increase or decrease penalties ordered by the Privacy Commissioner; these decisions will be made public. This will be helpful in allowing scholars and professionals to understand how factors will be weighed in a ruling and therefore be helpful in guiding businesses towards acceptable practices.<SUP>3</SUP>

The CPPA also provides whistleblower provisions that will protect any person who notifies the Privacy Commissioner of non-compliance with the law. This provision would support enforcement of the act by encouraging employees or representatives to report non-compliant behaviour.<SUP>4</SUP>

In addition to the legislative penalties, individuals who are affected by a violation of Bill C-11 will have a private right of action to seek damages for loss or injury. The limitation period for bringing the action is within two years of the Commissioners finding.<SUP>5</SUP>

Consent

The CPPA places greater emphasis on the obligation of private institutions to obtain consent.  Organizations must obtain valid consent from an individual before using or disclosing any personal information regarding that individual. The consent must be express, unless the organization can demonstrate that it is appropriate to rely on implied consent in the given circumstances. Consent cannot be obtained by using false or misleading information or using deceptive or misleading practices. An individual can, on reasonable notice, withdraw his consent in whole or in part.<SUP>6</SUP>

However, there are many exceptions to the requirement for consent<SUP>7</SUP>:

• Business activities which include the delivery of a product or service, due diligence, system or network security, safety of a product and others.
• Transferring and individual’s personal information to another service provider
• De-identifying an individual’s personal information
• Research and development if the information is de-identified before it is used
• Prospective and completed business transactions
• Information produced in employment, business or profession
• Employment relationship — federal work, undertaking or business
• Disclosure to lawyer or notary
• Witness statement
• Prevention, detection, or suppression of fraud
• Debt collection
• Publicly available information

There are also other exceptions that fall into the category of “public interest”<SUP>8</SUP>:

• Individual’s interest
• Emergency that threatens the life, health or security of any individual.
• Identification of an individual who is injured, ill or deceased.
• Communication with the next of kin or authorized representative
• Financial abuse
• Statistical or scholarly study or research
• Records of historic or archival importance
• Disclosure after period of time
• Journalistic, artistic or literary purposes
• Socially beneficial purposes

Finally, there are additional exceptions for investigations, disclosures to government institutions, disclosures required by law.<SUP>9</SUP> With such a large list of exceptions, it appears that consent will be the rule and exceptions may be limited to a prescribed list of activities appearing in the law. These lists will likely be debated as interests’ groups identify moments when consent should be explicit.

New Provisions

Although transparency was part of PIPEDA, Bill C-11 will also ensure greater transparency and accountability in how organizations use the personal information they collect.  Businesses will have to obtain consent from their clients in clear, plain, and simple terms, setting aside the long, bulky, and incomprehensible 20-page legal documents. Also, the CPPA gives an individual the right to access their personal information that is held by any organization.<SUP>10</SUP> This takes into consideration a growing concern expressed by many in the processing of decisions by automation or artificial intelligence. Recognizing that automation and artificial intelligence is limited to the quality of the information held, this provision would address the concern that faulty data can lead to highly prejudicial automated decision-making. The CPPA states in Section 63(3): 

If the organization has used an automated decision system to make a prediction, recommendation or decision about the individual, the organization must, on request by the individual, provide them with an explanation of the prediction, recommendation or decision and of how the personal information that was used to make the prediction, recommendation or decision was obtained.

Furthermore, Bill C-11 will allow clients and users to understand how their personal data is collected and grant them rights in reference to transferring their data from one organization to another. The new mobility of personal information right takes into consideration the reality of modern times and the necessity of transferring data between organizations. When two organizations are subject to the data mobility framework provided by the law, an individual will be able to direct an organization to disclose personal information that it has on this individual to another designated organization.<SUP>11</SUP>

Bill C-11 also includes a new privacy right, which is the de-identification of personal information. Basically, de-identification means to:

modify personal information — or create information from personal information — by using technical processes to ensure that the information does not identify an individual or could not be used in reasonably foreseeable circumstances, alone or in combination with other information, to identify an individual.<SUP>12</SUP>

When used reasonably and for the right purposes, de-identified information can be very useful for statistical purposes. However, there is always a concern that de-identified information can be reverse engineered and personal information may be restored. To address this concern the CPPA prohibits the use of de-identified information in order to identify an individual, unless it is used “to conduct testing of the effectiveness of security safeguards that the organization has put in place to protect the information”.<SUP>13</SUP> Severe penalties will be given to those who do not comply with the rule.

Bill C-11 will also give individuals the right to have their information deleted when they withdraw their consent. The right to retention and disposal of personal information grants any individual the right to write a request to an organization to dispose of the information on the individual that is held by the organization. An organization can refuse to dispose of the information if the disposing would result in the disposal of personal information on another individual from whom this information cannot be removed. A refusal is also permitted if other requirements of the CPPA, of a federal or provincial law or of the reasonable terms of a contract prevent the disposing. If an organization refuses a request from an individual, it must notify the individual in writing of the reasons for denying this request and inform the individual of its recourse.<SUP>14</SUP> One can imagine that the concept of information that “cannot be disposed” will require further development. 

How will CPPA affect Quebec’s organizations?

Bill C-11 stipulates that the Governor in Council may, by order, exempt organizations, activities, or class of a specific province from the application of the CPPA if the legislation of the given province is substantially similar to the CPPA. With the two current Quebec laws, the Act respecting Access to documents held by public bodies and the Protection of Personal Information and the Act respecting the protection of personal information in the private sector, it is most likely that Quebec organizations will not be subject to the CPPA. We can assume that businesses in Quebec that are subject to PIPEDA, such as corporations falling under the federal jurisdiction, will be subject to the CPPA.

It is important to note that Quebec is in the process of adopting a bill that will equally modify the privacy legislation applicable in Quebec, An Act to Modernize Legislative provisions as Regards the Protection of Personal Information (Bill 64). Bill 64 resembles Bill C-11, as it also seeks to strengthen the protection of personal information. If you want to read more on Bill 64, see our article on this subject here.

In its current form, Bill C-11 will drastically update Canada’s privacy regime. Although it is in its early stage, the essence of Bill C-11 is simple: protect Canadians’ information with a strict new privacy law.

Bill 78 modifies the Act on the legal publicity of companies (Loi sur la publicité légale des entreprises ("LPLE")) and the Regulation respecting the application of the Act respecting the legal publicity of enterprises, by introducing new rules regarding the corporate transparency and what information must be disclosed by entities[1]. All shareholders, partners, directors and officers of enterprises registered with the Québec Enterprise Register ("REQ"), as well as their legal advisors, accountants and tax advisors, will have to become familiar with these changes, as their impact is significant.

What are the new requirements?

From now on, registrants will be required to declare the ultimate beneficiaries of their enterprises, provide identification documents for all their directors and declare the dates of birth of all individuals listed on the REQ.

In addition, Bill 78 will allow individuals operating a sole proprietorship to declare a professional address. While this does not exempt them from declaring their residential address, the latter may not be consulted unless it is by a court bailiff in the practice of their profession[2].

Finally, the REQ intends to optimize its search engine for the benefit of those who use it, so that users may be able to conduct a search using an individual’s first and last name[3]. However, it should be noted that this function will only be available as of March 31, 2024.

Important Dates to Remember

Amendments made to the LPLE by Bill 78 will also come into force on March 31, 2023[4], requiring enterprises to comply with the proposed changes. That being said, the Quebec government has planned a gradual implementation of Bill 78 to allow for compliance over the course of the next year.

In the case of an entity that isn’t yet registered with the REQ by March 31, 2023, it will have to declare information regarding its ultimate beneficiaries upon filing of a declaration of registration, an initial declaration or a declaration of reregistration. Note that this applies to any corporation incorporated after March 31, 2023 that carries out activities in Quebec.

In the case of existing registrants, such as an enterprise carrying out activities in Quebec or one incorporated under the Business Corporations Act, the declaration of mandatory information regarding its ultimate beneficiaries must be provided no later than its first annual updating declaration due and filed after March 31, 2023[5], or the filing of a current updating declaration, whichever comes first. For further clarification, any change or modification to the information disclosed on the REQ will require registrants to file a current updating declaration, even if the annual declaration filing period has not yet expired.

In this regard, it should be noted that the Quebec government mentions in its directives of Bill 78 that enterprises eligible for joint filing will be able to check "no" on boxes 39 or 436 of the applicable tax return form, as the case may be, when filling their first income tax return following the implementation of these new rules.

An enterprise will then have to file their annual updating declaration directly with the REQ when declaring new information, and not in one step. Following that first declaration, enterprises will once again be able to file their annual updating declaration via their income tax return declaration as it is currently possible to do so[6].

Which enterprises will have to declare an ultimate beneficiary?

As a result of the recent amendments to the LPLE, the following enterprises (Quebec, Canadian or international) that will have to declare an ultimate beneficiary :

• Business corporations carrying on an activity covered by the LPLE in Quebec;
• Individuals operating a sole proprietorship;
• Partnerships (e.g., limited partnerships, general partnerships) carrying on an activity covered by the LPLE in Quebec;
• Cooperatives carrying on an activity covered by the LPLE in Quebec, except for financial services cooperatives;
• Trusts operating a commercial enterprise in Quebec.

Additionally, certain entities are exempt from these new rules, such as[7] :

• Legal persons established in the public interest;
• Non-profit legal persons;
• A reporting issuer within the meaning of sections 68 and following of the Securities Act;
• Financial institutions referred to in paragraphs 1 to 3 of section 4 of the Insurers Act, i.e. insurers authorized to carry insurer activities under the Insurers Act, deposit institutions authorized under the Deposit Institutions and Deposit Protection Act, and financial services cooperatives within the meaning of the Act respecting financial services cooperatives;
• Trust companies governed by a provincial or federal law, or by the laws of another province or territory of Canada;
• Banks and authorized foreign banks listed in Schedules I, II and III of the Bank Act;
• Associations within the meaning of the Civil Code of Quebec;
• Joint ventures (undeclared partnerships) within the meaning of the Civil Code of Quebec.

What is an ultimate beneficiary?

For entities subject to these new requirements, it is important understand what is meant by the term “ultimate beneficiary”[8]. An ultimate beneficiary is an individual that holds an interest in a given entity in such a way that it enables them to benefit from a portion of its revenue or assets, or to direct or influence its activities[9]. In short, this refers to any individual who has an influence and an impact over the affairs of an enterprise, whether through legal or de facto control. Moreover, an enterprise may have several ultimate beneficiaries. It is therefore important that each beneficiary is declared to REQ.

In accordance with Bill 78, an ultimate beneficiary is [10] :

• A person who holds, directly or indirectly, 25% or more of the voting rights;
• A person who holds, directly or indirectly, 25% or more of the fair market value of all shares or units issued by the enterprise;
• A person who has a direct or indirect influence which could result in a de facto control[11].

Through an inherently subjective analysis, de facto control can exist in situations where an individual influences the decisions of an enterprise in an important way.  As such, de facto control is closely linked to the interpretation given to it under the Taxation Act, with necessary adaptations.

Determining whether a person has such influence requires a factual and legal analysis that largely depends on a given situation. To determine whether a person has a direct or indirect influence over an enterprise so that, if exercised, it would result in a de facto control, all relevant factors must be considered.

Examples of de facto control include the influence of a family member, a long-time employee, a client or even a major creditor over the management of an enterprise. However, it should be noted that situations of de facto control are not limited to these examples. As such, it is recommended to consult the Quebec government’s guide on the matter and review further with a lawyer.

In situations where individuals who directly or indirectly hold, or are beneficiaries of shares or units in a given entity agree to jointly exercise voting rights attached to these shares or units, and the effect of such agreement would grant this group the power to exercise 25% or more of the voting rights in an entity, each of them is considered to be an ultimate beneficiary[12].

In the case of a sole proprietorship, the individual who operates the business is presumed to be the only ultimate beneficiary unless declared otherwise[13].

Finally, it should be noted that the Quebec government may establish by regulation other situations and conditions under which an individual would be considered an ultimate beneficiary[14]. It will therefore be important to follow developments on this matter over the upcoming years.

What kind of information do ultimate beneficiaries need to declare?

Ultimate beneficiaries need to declare the following information to the REQ:

• Their first and last names;
• Their residential address;
• Their date of birth;
• The date on which they became an ultimate beneficiary and that on which they ceased to be one; and
• How the ultimate beneficiary qualifies as such.

While some of this information is accessible to the public, this is not the case for dates of birth and residential addresses of ultimate beneficiaries (if they have also declared a professional address). In any case, it remains the responsibility of entities subject to the requirements of LPLE to declare this information. 

It should be noted that dates of birth, as well as residential addresses, if a professional address is declared, will not be available to the public, whereas all other information will appear publicly on the REQ. However, a court bailiff may consult the information related to any individual’s residential address in the exercise of their profession.

Additionally, enterprises will have to update and modify the registers in their corporate minute book to take into account the notion of ultimate beneficiaries and document this information accordingly.

Proof of Identification Documents for Directors

It will now be mandatory for directors of an enterprise registered with the REQ, as well as for each newly named director, to provide a copy of identification in support of any declaration or updating of information relating to them[15], as a means to ensure the accuracy of the first and last name and date of birth of all directors of an enterprise. For this purpose, the identification provided must be valid and issued by a government authority. Only identification with a first and last name and date of birth will be accepted[16].

What penalties do enterprises face if they fail to comply?

An enterprise that fails to comply with these requirements exposes itself to administrative sanctions, in addition to penalties of up to $20,000, depending on the situation[17]. Such fines may be doubled in the event of a subsequent offence[18].

Key Points to Remember

In short, these new measures will usher in a new era of corporate transparency for those doing business in Quebec. These measures seek to strengthen the protection of the public and make it possible to fight against tax evasion, money laundering and corruption.

For any questions regarding Bill 78 and what this means for your business going forward, do not hesitate to contact a member of our business law team.

Link :

• Government Guide (French only)

Most likely, you are beginning to feel a slowdown in your operations because the suppliers you deal with outside of the Canadian border have supply and/or production problems. Another possibility is that you have contracts with clients, distributors or partners that impose penalties in case of delays in delivery or production. It is quite possible that your business is already closed at the moment or that it will be forced to do so by tomorrow. Behind these legitimate questions lies the question of how you can lessen the impact of this crisis on your business. 

It should not be forgotten that several contracts include a force majeure clause allowing businesses to be released from their commitments for a certain period in case of an event beyond the control of the signatories of the contract. It is therefore strongly recommended in these uncertain economic times to have your contracts binding you and your partners reviewed in order to better understand the scope of these clauses as well as the necessary reasons to meet in order to invoke their necessity.

In the absence of a force majeure clause in your contracts, the Civil Code of Québec explicitly provides that a person may free themselves from their liability for injury caused to another by proving that the injury results from superior force, unless they have undertaken to make reparation for it.¹  However, the situation and its effects must qualify as force majeure. Some decisions of the court have already recognized the principle that an epidemic must meet the criteria of the law in order to be subject to the principle of force majeure.² Although there is currently no case law regarding the qualification of the current COVID-19 pandemic as being a case meeting the criteria of force majeure provided for in the Civil Code of Québec, it is necessary to specify with a fairly high degree of certainty that the effects on both sides of the contractual obligations of this pandemic will pass the test for qualification as force majeure by the courts later on.

When your contracts emphasize the notion of force majeure, it usually requires you to give written notice to your co-contractor to advise them of an event of force majeure and your willingness to use this as a reason for not complying with the entire contract.

Now, do all the obligations arising from a contract cease to apply when one of the parties invokes a case of force majeure? Not necessarily, because it is a case by case situation and it is more than recommended to analyze the full scope before systematically pleading force majeure.

In all cases, it is necessary that the wording of the clause and its effects be analysed in order to determine its application or non-application and the consequences of its application.

It is relevant to verify your insurance contracts in parallel with your commercial contracts that may currently be problematic, in order to validate before taking any action whether the commercial insurance you took out when you signed your contract covers the losses you have suffered. Commercial liability insurance policies generally do not cover force majeure, but rather liability arising from a fault or wrongful act of the insured. Pure economic loss resulting from a breach of contract is generally not covered or is generally excluded from most liability insurance policies. It is, however, advisable to declare to your insurer any loss that may jeopardize your cover as soon as you become aware of it.

It must also not be forgotten that the concept of force majeure has not been treated in the same way in all jurisdictions around the world. In particular, the other Canadian provinces have treated the concept of contractual force majeure differently under common law. It is therefore recommended to analyze the applicable regime for your contract in order to make the best business decision when the time comes to invoke contractual force majeure. For example, if your contract currently binds you to an Ontario business and it originated in Ontario, the principles discussed above will not apply in the same way.

In closing, if you are about to sign new commercial contracts, the notion of force majeure has never been as high a priority as it is in these times of economic instability. We strongly recommend that you consult a professional before signing a new commercial contract, even with a local company, because the issues surrounding COVID-19 can have serious consequences right now if you do not have good contractual protection. Furthermore, we also consider that identifying the elements of force majeure and the process for enforcing the elements that may allow this ground to be used in a contract are very useful, but it is strongly recommended that each of the clauses of this nature be specified and adapted to the different types of contracts and to each situation.

For any additional questions and for advice on how to properly manage your contracts in relation to the current situation with COVID-19, we invite you to contact our Business Law team. The team remains on the lookout for you.

Labour Standards

Undertaking measures such as temporary layoffs to counter the COVID-19 situation has significant impacts on employees. First, it is necessary to plan the workforce according to the company's needs. Second, we must assess the impact of the decisions and plan meetings with employees to provide them with all the necessary information and support.

If an organization needs to downsize, work-sharing may be considered but an application must be made to Service Canada. Recently, the federal government announced new measures regarding the work-sharing program. The temporary special measures extend work-sharing agreements by an additional 38 weeks, lift the mandatory waiting period and relax the requirements of the recovery plan. For more information, please visit: 

https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

If an organization must close its doors completely and the layoff is less than six (6) months, the employer is not required to give written notice and may do so verbally. In this case, it is preferable to appoint a responsible person (manager) who is calm to make the announcement in order to reassure the employees, to adequately communicate the announcement and thus reduce the risk of misunderstanding in this situation.

Psychological

This period of uncertainty can be a source of stress and even anxiety for some people. In order to accompany employees who may be experiencing both professional and personal concerns, transparent and frequent communication will be required, promptly upon announcement of the closure and throughout this temporary situation, which could become precarious for some.

Therefore, an HR committee should be established to ensure continuity in communication with employees. The role of this committee will be to keep employees informed daily of the situation, including measures taken by government authorities that will have an impact on the organization. These communications should be verbal and written to be as clear and precise as possible. It will therefore be essential that each employee has access to the company's communications and that they can be easily reached.

Members of the HR Committee may refer employees to assistance programs such as an EAP (Employee Assistance Program) or a telemedicine platform service if such programs are in place within the company. If such employee assistance solutions are not available, a person in charge of the HR Committee may be responsible for listening to these employees in order to respond to their concerns and refer them to professional services, if necessary.

Retention

With a temporary closure, the possibility that some employees may seek new employment is not excluded. It is more important for organizations to prepare for such a challenge.

Solutions are possible: it is possible to involve employees in certain decisions or to ask their opinion in order to maintain a link with employees during the temporary closure period. They will have a better understanding of the reasons for the decisions made by the HR committee or management and they will feel included and important in the organization.

Even more so, if management decides to take advantage of the temporary closure to make certain improvements within the company, this would be an opportunity for employees to participate in some way, depending on their level of incentive. 

Finally, it is important to stress, throughout this management, that the decisions and communications that will be taken gradually will have to reflect the organizational values present within the organization and, consequently, convey the behaviours to be adopted.

For advice on how to properly manage the current situation related to COVID-19, we invite you to contact our HR consulting services team, which remains on the lookout for you.

Before this crisis, we were able to work remotely on a sporadic basis depending on company policy, work-family balance or the job content requirements of individual positions. Now, for some businesses, the new reality of working remotely is full-time and continuously for an undefined period. 

Some of you find yourselves in this new reality for the very first time as an employee or manager. Thus, new work practices are emerging and bringing their share of challenges!

In order to help you see things more clearly and to assist you in meeting this challenge, we share with you some good practices on the management of telework and suggest some winning conditions to put in place.

Communication

One of the challenges of managing remote teams is communication. As a matter of fact, ensuring frequent communication, daily if possible, helps to foster guidance, a sense of belonging and employee commitment.

Your role, as a manager, is to establish a context of proximity by using the technological tools available to you through routine communication with your team members. Regularity is essential to create work habits, even at a distance.

Here are some concrete elements to be put in place to promote its application:

First, schedule weekly team meetings with recurring agenda items. Topics could include an update on recent management decisions and impacts on the organization; explain changes or guidelines to be implemented, etc. Make a briefing of current and future mandates, follow up on deadlines and ensure the efficiency of equipment and work tools. During these virtual meetings, you could also take a moment to answer employees' questions and/or concerns. If you are not able to answer them on the spot, commit yourself to returning with responses to them as soon as possible and respect this commitment. You could also invite employees to share their questions with you in advance to better prepare yourself. No doubt they will appreciate these meetings, which will allow them to follow the company's positioning in near-real-time as the situation evolves.

Second, focus on individual moments with your team members throughout the week. This will not only strengthen your relationship on a personal level but will also allow you to evaluate each employee's performance level. Your challenge as a manager is to remotely monitor their performance by avoiding a "micro-management" mode. How should it be done? Set clear and measurable objectives, conduct regular follow-ups and ensure that deadlines are met. Manage for results and let employees find ways to achieve their goals. Above all, trust them! Obviously, we encourage you to involve the employee in the identification of objectives so that they feel involved in the decision-making process and consequently makes them feel responsible for their role.  

Relationship

Why not take the opportunity to learn more about your work team?

In this unique context, do not hesitate to start your discussions by asking "how are things going?" or "how are things going on your end? "in order to encourage a human approach.

Be aware of the personality of each member of your team, because no two people react in the same way and have the same speed of adaptation. Some are quieter, some are fearful, and some are more detached. In either situation, all you must do is remain open, listen and prepare for a variety of emotions. If you notice that someone who is more anxious is having difficulty acclimatizing, consider support options. For example, a member of your team who is more optimistic by nature could certainly help them to temper their reactions and keep their mind occupied with more positive things. Or, refer the employee to an employee assistance program if one is in place within the organization. The idea is to be prepared for the various situations that may arise so that everyone feels taken care of and supported. You could also initiate the sharing of good practices among your team members, since as a manager you are note under any obligation to have all the answers.

The key to success lies in the goodwill and quality of support offered on an ongoing basis.

Sense of Belonging

Is it possible to maintain sound management and foster a fun working environment from a distance?

Yes, fun acts as an important lever and stimulates a sense of belonging, thus creating a positive employee experience. But beware, there are conditions that must be respected! First, the operating rules must be well established and known by everyone. Then, there must be room for creativity in order to create initiatives that will cultivate a sense of belonging. 

Get your employees to identify online team-building rituals or activities and make a promise to keep these initiatives on your agenda. These will become long-awaited "events" that people will be eager to attend. For example, you could organize a happy hour or an online relaxation activity such as yoga. Be creative and stand out! These activities will have as much impact on the employee experience as on your employer image. Believe it or not, these moments, even the craziest ones, will soon become unforgettable memories!

In conclusion, do not forget to take breaks throughout the day, such as going for a walk at lunchtime to disconnect, which will not only allow you to refocus, but will also help you get back on track. Studies show that people who work remotely are more productive than in the office. It's all about balance, and you cannot neglect your mental and physical health. Have good habits and plan a healthy work routine that meets your well-being as well as the mandates you have to execute.

For advice on how to properly manage the current situation related to COVID-19, we invite you to contact our HR Consulting team. The team remains on the lookout for you.

Question 1:  

My company must submit a major bid abroad and if we get the contract, it means that we will have to deliver our equipment to our client's premises as well as send a team to install the equipment.  Should we submit this bid or wait? 

Answer 1: 

With border closures around the world, currently restricted to travellers and not goods, the fact remains that things can change quickly.

The duration of this pandemic is unknown. Responses and actions vary from country, state or province, sometimes even at the municipal level. It is therefore very risky to commit to such a contract, especially with respect to installation services, since employees may be prevented from travelling abroad, may become ill, or even be unable to return, in addition to a foreseeable quarantine.

It is obvious that companies will have significant problems and delays in their supplies, as well as production in the plant or finding means of transportation, since this pandemic will have the effect of temporarily reducing the available workforce required for normal operations.

Knowing these risks, if both parties are still willing to contract, then protecting yourself as a seller through the terms of a written contract, signed by both parties, which will include an enhanced "force majeure" clause is adequately needed.

This type of clause will need to provide for more than just natural disasters and catastrophes, including epidemics/pandemics, quarantines, border closures and other decisions and actions by government authorities. It will also need to provide for delays and inability to find transportation or to source raw materials, components, parts and other inputs from suppliers.

It would also be prudent to mention that this clause will also apply in the specific context of the COVID-19 pandemic, in order to make it clear in the contract that the parties, who knew or could have imagined that there would be the possibility of non-compliance with the contract because of this virus, nevertheless agreed to contract together and to provide a loophole in this particular circumstance.

The contract should furthermore clearly state that the delivery date is only an approximate date and that no default, compensation or penalty will apply to your business as a result of such situations.

Question 2: 

Our company ordered strategic components from international suppliers, which will then be integrated into the production chain of our products in Canada. We are concerned that we will not be able to receive our components on time, as Chinese factories are in the affected areas. What could we do?

Answer 2: 

Obviously, try to contact your supplier for more information on the local situation.

Also take the time to look over the contractual documentation related to this transaction. If you have not signed a written contract, your document exchange such as purchase orders and order acceptance confirmations, or simply quotations and purchase orders, are still valid contracts between the parties.

One of the difficulties may be that neither party has foreseen what would happen in the event of such a problem, nor what laws and courts would have jurisdiction to resolve such a situation. Our international trade lawyers, who also have access to our affiliated international law firms, should be consulted and will be able to advise you on the specific legal situation your company is facing and may be able to suggest solutions.

Even if no contract has been signed, it is possible that the supplier's bid may still contain conditions that you have accepted by sending your purchase order or payment. These terms and conditions could also possibly be found on your supplier's website, which is referred to in the supplier's documents as part of the terms and conditions of sale. These general terms and conditions of sale may also have been attached to the documents sent by your supplier, which are often in small print that few companies bother to read.

If such supplier terms and conditions of sale exist, they will most often include a "force majeure" clause (see question 1 for more details on this type of clause) which will normally release the supplier from any liability for default or delay in such a case. Although not necessarily mentioning epidemics/pandemics and specific cases of COVID-19, general terms often used by the supplier could include this situation.

In the event of a dispute, it is also likely that the supplier will have provided that the applicable laws will be the laws of its country, as well as its local courts or arbitrations in its country. You will then be left with no choice but to attempt to negotiate or to wait until the supplier is able to meet its obligations, failing which no other recourse will be available against the supplier. Our specialized lawyers will be able to confirm whether there is any potential recourse against a supplier, considering your case.

We also recommend that you try to protect yourself against the default of a supplier by diversifying your suppliers, in the hope that not all of them will be equally and simultaneously affected by the pandemic, fluctuations in the financial markets and changes in exchange rates. So now is a good time to actively look at your supply capabilities.

Question 3:  

Should our company consider changing its contract templates to be better equipped to deal with this pandemic or similar situations in the future?

Answer 3: 

Absolutely! All international contract models could be improved, following their review by our specialized lawyers, and adapted in your favour, depending on whether you are the buyer or the seller of products or services.

For example, your contracts for the sale of products and services, bids, offers of services, distribution, supply or representation contracts, purchase orders, invoices and general conditions, etc.

The "force majeure" clause will have to be adapted on a case-by-case basis.

Penalties or compensation measures may be provided for or revised. The contract termination clauses may also be improved, among others.  

It is therefore important to seek advice from our specialized lawyers, who will also be assisted, if necessary, by our foreign partner firms, if foreign laws apply to your contract.

Question 4: 

We have plans to acquire a company abroad. How can the virus have a significant impact on the transaction and is it a good idea to get the project going?

Answer 4: 

Especially in a context of setting up abroad, you will need to rely on key local people who are familiar with the company and the local market. The impact of the virus, from a demographic point of view, cannot be underestimated and it is therefore possible that the head of the company or some of the key people may be victims of this situation.

Furthermore, any acquisition abroad also presupposes that members of your staff will have to travel on numerous occasions to the country or countries involved in the transaction, as well as for extended periods of time in order to complete the transaction, implement practices and policies, harmonize tools and management, etc.

It is therefore obvious that the current situation may not only slow down the transaction, but also compromise it.

Finally, we must not overlook the volatility of the financial markets and it will be more risky to commit significant capital to expansion projects in the short and medium term, since the company will undoubtedly need access to significant liquidity to get through this crisis locally and to deal with the emergency and public security measures that have been put in place and those that will be put in place.

Nevertheless, international trade will not stop, and the situation will eventually return to normal. It is therefore also necessary to consider, in full knowledge of the facts, taking advantage of a market opportunity, even in these times of crisis.

If you wish to proceed with the possible acquisition transaction abroad, it will be essential to pay attention to the contractual documents (letters of intent, offer to purchase, etc.). These documents must not only provide for the addition of the "force majeure" clause, but also provide, among other things, for more flexible timetables, opportunities for your business to withdraw along the way or at certain stages, as well as specific conditions related to the workforce and the owners of the business to be acquired.

It will also be necessary to make sure to provide for additional declarations and obtain additional indemnification commitments from the vendor regarding the possible recourse of local personnel related to COVID-19, for example, for alleged misconduct on the employer for insufficient measures that led to the contamination and complications of the employees' medical condition, including death. Local laws will then apply to the recourse of employees or their estates. Our international affiliates will be called upon by our firm to provide you with valuable recommendations for such a transaction.

Question 5:

We are accustomed to making all our transactions in US dollars or Euros. We have many outstanding contracts in foreign currencies as well. What could we do, and should we change our habits for future transactions?

Answer 5: 

Unfortunately, from a contractual point of view, the contract between the parties will apply if it is already in place. Therefore, in the event of a currency fluctuation to your disadvantage, you will have to deal with the consequences.

However, it is always possible to contact your clients who, like you, are also concerned about currency fluctuations in these times of pandemic, especially when the currency of the transaction is not your buyer's currency either. It is possible to try to foresee at least a range of currency fluctuations, beyond which the parties will be able to renegotiate the contract with a price that provides for a more acceptable replacement currency for both parties, or to terminate the contract with or without penalty.

It would be prudent, given the volatility of the markets, which can also lead to significant variations in exchange rates, to use the various products available on the market, such as those offered by EDC (Export Development Canada) and your financial institutions, and to inquire about the full range of financial products and strategies available to you.

It is also likely that the various insurance products on the market that will be offered to you will soon be modified specifically in relation to a pandemic situation, as was the case with the addition of a terrorism-related exclusion following the events of September 11. You will need to find out about the exclusions and limits associated with these products in order to fully understand your true business risks.

Question 6:  

Our company has an international contract in place that contains a force majeure clause. We must immediately stop production and temporarily close the plant due to COVID-19. We are therefore unable to meet our obligations towards our clients. What do we have to do quickly?

Answer 6: 

First of all, the contract must be analysed as soon as possible to check the exact wording of the "force majeure" clause. This clause should normally contain an obligation for you to give written notice to the other party as soon as possible, informing them of the state of affairs and your inability to meet your obligations. This type of clause could include a specific maximum period of time that you must respect, or use expressions such as "without delay", "immediately", "as soon as reasonably possible in the circumstances", etc.

You will also need to consider how and to whom this formal written notice is to be given. It is imperative that the notice mechanism provided for in the contract be complied with, otherwise the clause will normally become inapplicable.

There is nothing to prevent you from sending such a notice by email, so that your client could quickly react, if the contract does not provide for email as a means of transmission. But remember that in order to benefit from this exception in the contract, you will also have to send the notice a second time using one of the methods provided for in the contract.

You will have to notify the other party of any changes that occur during the impediment, since you will normally have to resume performance of the contract once the impediment has ceased. The specific text of the "force majeure" clause could provide for even partial performance of your obligations as soon as it becomes possible for you to do so.

Finally, in a context of international law, if the contract provides that the laws in force in Quebec are the applicable ones, it is in light of Quebec law and its jurisprudence that the clause will be interpreted and that the facts and circumstances that forced your company to invoke this clause will be examined by the courts, should your client ever have to sue you for breach of contract. If the law provided for in the contract is that of another country or jurisdiction, the criteria could change, as could the interpretation by the local courts.

It is therefore important to seek advice from our specialized lawyers, who will also be assisted, if necessary, by our foreign partner firms, if foreign laws apply to your contract.

To read the first three Q&As for companies operating internationally, click here!

The COVID-19 pandemic brings its share of disruptions around the world, but also within Quebec, affecting all spheres of the economy as well as employees, self-employed workers and owners of small, medium and large businesses.

Aware of this sad reality, both the federal and Quebec governments have announced different measures over the past few weeks to limit their negative impacts. Some of these measures are direct assistance, while others are tax related.

DIRECT ASSISTANCE

Through various announcements, the federal government introduced several measures aimed at individuals and businesses, including the following: 

• Granting of a temporary 3-month wage subsidy available to businesses eligible for the small business deduction, NPOs and charities. This grant is equivalent to 10% of the remuneration paid during this period, up to a maximum of $1,375 per employee and $25,000 per employer. This grant and the Canada Emergency Wage Subsidy are not cumulative in that the amounts obtained by employers under the Temporary Wage Subsidy will reduce the amount that can be claimed as a Canada Emergency Wage Subsidy;
• Granting of the 3-month Canada Emergency Wage Subsidy (March, April and May 2020) available to eligible Canadian businesses, including not-for-profit and charities, regardless of their size and sector of activity. This grant is equivalent to 75% of the wages paid during this period, up to a maximum weekly amount of $847 per employee. Considering the importance of this measure, our team has prepared a document explaining this new measure in more detail, entitled “Canada's Emergency Wage Subsidy: For Whom and How to Benefit?”;
• Granting of the Canada Emergency Benefit of $500 per week for up to 16 weeks is available to employees who are unable to remain at work due to illness, quarantine or caring for a family member;
• Granting of the Supplementary Unemployment Benefit Plan, which allows an employer to top up the salary of an employee who is receiving Employment Insurance benefits, as long as the program is recognized by the government;
• Granting of the Employment Insurance Sickness Benefit that eliminates the mandatory one-week waiting period and the requirement to provide a medical certificate in order to receive Employment Insurance sickness benefits;
• Implementing the Employment Insurance Work-Sharing Program, which provides benefits to workers who agree to reduce their normal work schedule due to new circumstances beyond the control of their employer;
• For low- and modest-income families, providing a special one-time payment through the Goods and Services Tax Credit;
• Increasing the maximum Canada Child Tax Benefit for the year 2019-2020 by $300 per child starting in May;
• 6-month moratorium on student loan repayments;
• Reducing by 25% the minimum required RRIF mandatory withdrawals for the year 2020;
• Enhancing the Business Credit Availability Program which allows the Business Development Bank of Canada (BDC) and Export Development Canada (EDC) to provide additional support to businesses;
• Changing the Canada Account to allow the Canadian government to provide support to businesses through loans, guarantees or insurance policies;
• Granting $5 billion in financial assistance to farmers through loans from Farm Credit Canada;
• Granting an emergency account for businesses to access loans of up to $40,000 from a financial institution, with EDC's assistance.

For its part, as part of the various announcements, the Government of Quebec has presented social measures for workers and businesses, including : 

• Establishing the Temporary Aid for Workers Program (TAWP COVID-19), which provides a lump sum of $573 per week to workers who are in isolation and who are unable to benefit from their earnings or another compensation alternative, such as employment insurance;
• Implementing the Concerted Temporary Action Program for Businesses (CTAPB) to provide a new loan to be granted or guaranteed by Investissement Québec for a minimum amount of $50,000 at advantageous rates to support the working capital of businesses operating in all sectors of activity and directly affected by COVID-19 (provided that certain conditions are met);
• Easing the conditions of loans already granted by Investissement Québec; 
• Reducing by 25% the minimum required amount of mandatory RRIF withdrawals for 2020.

In addition to these measures, some municipalities are postponing the date for payment of municipal taxes, the cities of Montreal, Laval, Longueuil, Quebec City and Lévis, to name a few.

Furthermore, financial institutions have proposed moratoriums on the payment of principal and interest on certain loans and some municipalities, including the City of Lévis, through local economic development organizations, have announced measures to help businesses.

TAX ASSISTANCE

• New deadlines for filing income tax returns and making payments. In Quebec as well as in the federal government, the deadlines for filing income tax returns, paying taxes due (without penalties or interest) and making instalments (without penalties or interest) have been changed for most taxpayers. 

The following is a summary table of these reliefs:

• The Quebec Revenue Agency announced the following administrative measures:
  • Activities related to tax audit (except fraud) and collection are suspended;
  • It will be open and flexible with respect to the usual duration of payment agreements related to tax debts;
  • Notices of Objection with a 90-day deadline between March 13 and June 29, 2020 are extended to June 30, 2020;
  • Administrative measures regarding income tax (except for deductions at source ("DAS") to be made between March 17, 2020 and May 31, 2020 are postponed to June 1, 2020.
• The Canada Revenue Agency announced the following:
  • It is temporarily suspending its communications with small and medium businesses to begin or initiate tax audits (excluding fraud) for a period of 4 weeks;
  • It is also suspending the processing of notices of objection;
  • The deadline for notices of objection with a 90-day period between March 18 and June 30, 2020 is extended to June 30, 2020;
  • Income tax administrative measures (except for DAS) to be completed after March 18, 2020 are extended to June 1, 2020.

Furthermore, in the current context, you will find below a brief reminder of some tax concepts that may be useful in making certain decisions for the coming weeks.

• Responsibilities of Directors. In the current economic context, some businesses may be tempted to use the amounts collected from GST/QST and DAS to reimburse a supplier or creditor. However, it is important to keep in mind that corporate directors may be held personally liable for a corporation's failure to meet its withholding tax obligations. The directors' responsibility is not absolute, but they must be able to prove that a reasonable person in the same circumstances would have taken the same positive action to avoid any default.
• Before the courts. In the Court of Quebec, there is a suspension of the computation deadlines for certain recourses, starting March 15 until the end of the health emergency measures and starting March 16, 2020 until May 1, 2020 in the Tax Court of Canada.
• Request for relief from interest and penalties. In the event of an inability to pay a tax debt and the failure is due to exceptional circumstances, the tax authorities may waive interest, penalties and other charges. Thus, the COVID-19 pandemic may, in our opinion, eventually arise for certain taxpayers whose precarious financial situation prevented them from paying their tax debts in full. In this context, we recommend that taxpayers properly document their file if they are unable to meet all their tax obligations.
• Tax losses. The use of various types of tax losses accumulated, carried forward or resulting from the stock market downturn could be an alternative in order to allow taxpayers to minimize their taxes payable and thus preserve their liquidity.
• TFSA and RRSP. Withdrawals from an RRSP may be preferable to withdrawals from a TFSA during a period when the taxpayer's tax rate is lower than normal. Finally, from an investment perspective, for the more optimistic who would like to take advantage of falling stock markets and anticipate potential gains, investing through TFSA funds may be preferable considering that the withdrawal of gains made within the TFSA is tax-free, unlike withdrawals from an RRSP.

Aware of this sad reality, the federal and Quebec governments have announced measures to limit their negative impacts. Some of these measures are direct assistance while others are tax measures.

DIRECT ASSISTANCE

In its March 18 announcement, the federal government presented an assistance plan intended for individuals and businesses consisting of the following measures:

• Eliminating the mandatory one-week waiting period for Employment Insurance sickness benefits;
• Eliminating the requirement to provide a medical certificate in order to receive Employment Insurance sickness benefits;
• Implementing the Employment Insurance Work-Sharing program, which provides benefits to workers who agree to reduce their normal work schedule due to new circumstances beyond the control of their employer;
• Granting an emergency care allowance of up to $900 every two weeks, for a maximum period of 15 weeks, for people who are unable to remain at work due to illness, quarantine or caring for a family member and who do not benefit from paid sick leave or are not eligible for Employment Insurance sickness benefits including, especially, the self-employed (application for this type of benefit is expected to be available starting in April);
• Granting an emergency support allowance of up to 14 weeks maximum for people who are not eligible for Employment Insurance and who will lose their job or see their hours of work reduced (according to available information, this benefit would be equivalent to Employment Insurance benefits);
• For low-income and modest-income families, a one-time special payment through the Goods and Services Tax Credit;
• Increasing the maximum Canada Child Allowance benefits for the year 2019-2020 by $300 per child starting in May;
• A 6-month moratorium on the repayment of student loans;
• A 25% reduction in the minimum required RRIF withdrawal requirement for 2020;
• Granting a temporary 3-month wage subsidy to businesses eligible for the small business, NPO and charity deduction. This subsidy is equal to 10% of the remuneration paid during this period, up to a maximum of $1,375 per employee and $25,000 per employer;
• Enhancing the Business Credit Availability Program to allow the Business Development Bank of Canada (BDC) and Export Development Canada (EDC) to provide additional support to businesses;
• Introducing the Insured Mortgage Purchase Program (IMPP);
• Changing the Canada Account to allow the Government of Canada to provide support to businesses through loans, guarantees or insurance policies.

In its March 19 announcement, the Government of Quebec presented social measures for workers and businesses, including the following:

• Establishing the Temporary Aid for Workers Program (TAWP COVID-19), which provides a lump sum of $573 per week to workers who are in isolation and who are unable to benefit from their earnings or another compensation alternative, such as employment insurance;
• Establishing the Concerted Temporary Action Program for Businesses (CTAPB) to provide a new loan to be granted or guaranteed by Investissement Québec for a minimum amount of $50,000 at advantageous rates to support the working capital of businesses operating in all sectors of activity and directly affected by COVID-19 (provided that certain conditions are met);
• Relaxing the conditions of loans already granted by Investissement Québec; 
• 25% reduction in the minimum required amount of mandatory RRIF withdrawals for 2020.

In addition to these measures, some municipalities are postponing the payment date of municipal taxes, including the cities of Montréal, Québec City and Lévis, to name a few.

In addition, financial institutions have proposed moratoriums on the payment of principal and interest on certain loans.

TAX ASSISTANCE

•  New deadlines for filing income tax returns and making payments. Both Quebec and the federal government have decided that the deadlines for filing income tax returns, paying taxes due (without penalties or interest) and making instalments (without penalties or interest) have been changed for most taxpayers.  Currently, these additional deadlines do not apply to net tax remittances (GST and QST).

The following is a summary table of these reliefs:

• Revenue Quebec announced that tax audit and collection activities are suspended and that it will be open and flexible with respect to the usual duration of payment arrangements related to tax debts.
• The Canada Revenue Agency announced that it is temporarily suspending its communications with small and medium size enterprises to initiate or begin tax audits.

Furthermore, in the current context, you will find below a brief reminder of some tax concepts that may be useful to you in making certain decisions for the coming weeks.

• Directors' liability. In the current economic context, some businesses may be tempted to use the amounts collected from GST, QST and DAS to reimburse a supplier or creditor. However, it is important to keep in mind that corporate directors may be held personally liable for failure to meet a corporation's obligations to withhold source deductions or remit net taxes.
• Deadlines. The deadlines for objections (90 days) and appeals of decisions on objections (90 days) are still in effect and have not been modified by the announcements made by the federal and Quebec governments. However, the judicial time limits provided for under legislation administered by the courts may have been suspended for a certain period, as is the case for the Tax Court of Canada.
• Request for relief from interest and penalties. In the event of an inability to pay a tax debt and that the failure is due to exceptional circumstances, the tax authorities may waive interest, penalties and other charges. Thus, the COVID-19 pandemic may, in our opinion, possibly arise for certain taxpayers whose precarious financial situation prevented them from paying their tax debts in full.
• Tax losses. The use of various types of tax losses accumulated or resulting from stock market declines could be an alternative to allow taxpayers to minimize their taxes payable and thus preserve their liquidity.
• TFSA and RRSP. Withdrawals from an RRSP may be preferable to withdrawals from a TFSA during a period when the taxpayer's tax rate is lower than normal. Finally, from an investment perspective, for the more optimistic who wish to take advantage of falling stock markets and anticipate potential gains, investing through TFSA funds may be preferable considering that the withdrawal of gains made within the TFSA is tax-free, unlike withdrawals from an RRSP.

The facts of the decision

In this case[1], the employer is informed by the Police Service of Quebec City (SPVQ) that a pyramid scheme called the Mouvement du présent (French for “Movement of the present”), could be present on the employer’s premises.

Surprised, the employer quickly assigns an investigation mandate to an outside firm to validate whether the information received by the SPVQ is indeed true.

As part of the investigation, the plaintiff employee is met by the outside firm and denies any involvement with the Mouvement du présent at work and outside of work.

However, the investigation reveals that the employee is not only an active member of the Mouvement, but also one of the pillars that allowed the scheme to take root within the employer’s premises. In fact, he spoke of the Mouvement at the workplace to colleagues and gave many presentations on the Mouvement outside of the workplace and working hours. Some colleagues have participated in these presentations. 

The employer then decided to dismiss the employee for actively participating in a pyramid scheme in the workplace, for soliciting colleagues while knowing that this network is illegal and for lying and denying his implication with this network during the investigation. 

The arbitrator’s analysis

First, the arbitrator found that explaining a pyramid scheme to colleagues is likely to constitute solicitation in the workplace. 

Second, the arbitrator agrees that the more serious activities, namely the presentations on the Mouvement by the employee to potential new members, were done outside the workplace and working hours. However, he retains that the employee set “traps” during working hours to encourage his colleagues to participate in these presentations. In doing so, the employee cannot invoke the right to privacy in order to free himself from the actions he has taken.

Also, given the complexity of the case and the number of people implicated, the employer equipped himself with a grid of sanctions that vary depending on the alleged facts in order to ensure consistency between the sanctions. The acts of the plaintiff place him at the grid’s second level. This level provides for a suspension going from two weeks to a month for employees that have guided, explained or given presentations.

The union therefore argues that the employee should have been suspended and not dismissed.

On the other hand, the arbitrator retains the employer’s argument that the repeated denials from the employee during the investigation, his refusal to collaborate and his refusal to amend his version while many others accepted to do so, are considered aggravating factors that justify the deviation from the internal grid used by the employer.

In the same line of thought, the arbitrator mentions he doesn’t have the power to intervene on the sole basis that the employer doesn’t respect the sanctions grid since the use of said grid, a tool of his own making, is part of his management rights.

The arbitrator then dismisses the grievance, confirming the employee’s dismissal.

Key points to remember

Several elements can be drawn from this decision:

• It isn’t a determining factor that the most serious acts were committed outside the hours and places of work, provided that these activities have a sufficient connection to the work environment;
• The fact, for an employee, to persistently lie and deny any implication with a fraudulent activity during an employer’s investigation can justify a dismissal even if the initial alleged act is not, in itself, justifiable for dismissal; and
• An internal decision-making tool used by the employer to decide a disciplinary sanction does not limit his management rights and is not binding for the arbitrator. 

For all other questions regarding your rights as an employer, don’t hesitate to communicate with our Labor and employment law team.

Although the vaccination rollout is still in its early stages, several people are questioning the risks associated with COVID-19 vaccines and whether they should in fact get vaccinated. Employers are now faced with a difficult question: Can they require their employees to get vaccinated against COVID-19?

Although no decision has yet been rendered on mandatory vaccination policies in the context of COVID-19, some well-recognized legal principles regarding consent to care and the right to personal integrity should be considered in answering this very topical question.

Under the Act Respecting Industrial Accidents and Occupational Diseases (hereinafter the “Act”), the employer must, on the one hand, take the necessary measures to protect the health and ensure the safety and physical integrity of its employees, and, on the other hand, employees must reciprocally take the necessary means to protect their health and safety at work. In addition, employees are also required to participate in the identification and elimination of risks in the workplace.

It is also important to consider the provisions of the Quebec Charter of Human Rights and Freedoms (hereinafter the “Charter”) and the Civil Code of Québec (hereinafter the “Code”) as they relate to human rights in order to identify the legal issues pertaining to this question. As such, the Charter states that every human being has the right to life, security, integrity, and personal freedom. The Charter also enshrines the principles of the right to freedom of religion, dignity, and privacy. The Code, for its part, provides that no one may be made to undergo care of any nature without their consent, namely examination, specimen taking, treatment, or any other act.

Considering the primacy of the Charter over other Quebec laws, it is likely that individual rights protected by the Charter will supersede employers’ general health and safety obligations. Notwithstanding specific exceptions set out by case law in similar matters, but obviously in a context quite different from that of COVID-19, an employer could not require its employees to get vaccinated, in accordance with the applicable legal principles mentioned above.

Given that the provincial government has declared a public health emergency, it could order compulsory vaccination of all or a portion of the population in accordance with the Public Health Act.

Currently, there is no clear precedent for mandatory workplace vaccination in the context of the COVID-19 pandemic.

However, there exists some case law in Canada regarding mandatory vaccination policies in the context of influenza. As such, certain employers in the health care sector implemented policies requiring workers to be vaccinated against the flu in order to minimize the spread of the virus in the workplace. Unions representing these workers challenged these policies and several labour arbitration decisions followed on whether these policies violated the collective agreement. However, the decisions rendered were divided and did not provide a clear answer to this question.

In Québec, an employer’s decision[1] to remove from the workplace and suspend without pay an employee, who worked in a long-term care facility and who refused to be vaccinated, was upheld by a grievance arbitrator. After balancing the interests of employees and the employer’s objective, the grievance arbitrator concluded that an employer, who can demonstrate that the vaccination of employees is a bona fide occupational requirement due to frequent and repeated contact with a vulnerable clientele, for example, could impose administrative measures on employees who refuse to be vaccinated.

Thus, an employer could assert that vaccination against COVID-19 is a bona fide occupational requirement if it can demonstrate the health and safety reasons justifying such a measure in the specific context of its activities. As a result, employees who refuse to be vaccinated, notwithstanding that vaccination is made to be a requirement for employment or continued employment, could face administrative measures, such as a suspension without pay.

It appears unlikely that governments would order compulsory vaccination of the entire population. As is the case with most legal issues raised by COVID-19, we will need to await the decisions of administrative tribunals or judicial courts to better understand the context in which an employer could require employees to be vaccinated against COVID-19.

In the meantime, we recommend that employers adopt all measures recommended by public health authorities to provide a safe workplace, and strongly encourage employees to be vaccinated to reduce the spread of COVID-19 in the workplace. 

While the governments of Quebec and Canada have already announced a series of measures to slow the spread of the virus, what measures can or should be put in place by employers?

Here are answers to the most common questions raised by employers in relation to the management of the COVID-19 pandemic.

1. What are the employer's obligations in the context of managing the COVID-19 pandemic?

The employer must take the appropriate measures to protect the health, safety and physical well-being of its workers, particularly in the context of the spread of contagious viruses such as COVID-19. The employer must provide a hazard-free work environment and remain informed as to the health of its employees.

In order to meet these obligations, the employer should implement preventive measures in the workplace, including those recommended by governmental authorities.

2. What health measures should an employer put into place within its organization to protect its employees?

Amongst other things, the employer should:

• Ensure that employees do not report to work if they have symptoms of fever, cough or breathing difficulties;
• Question an employee who has flu-related symptoms;
• Encourage employees and visitors to adopt proper hygiene practices. For example, an employer should post signs demonstrating proper hand washing technique, encourage employees and visitors to cough or sneeze into their elbow and to avoid touching their eyes, nose or mouth with unwashed hands;
• Provide employees and visitors with the necessary means to promote good hygiene, such as hand sanitizer and other disinfectant products;
• Arrange for more frequent cleaning of potentially contaminated surfaces, especially in common areas;
• Take appropriate action if employees or visitors are symptomatic, for example, by restricting access to the workplace or specific areas;
• Reserve their right to question symptomatic employees or visitors;
• Demonstrate their proactiveness by detailing the measures taken to prevent the spread of COVID-19, including all limitations to access to the workplace, and post said measures at the various entrances to the workplace;
• Recommend that employees avoid any physical contact with others. 

3. What strategies should an employer put in place to reduce the risk of contagion and to accommodate its employees?

The employer should ensure that clear policies are put in place to address COVID-19, particularly policies on workplace behaviour, absenteeism, telework and travel.

When possible, the employer should encourage telework in order to limit the risk of spreading the virus. As of March 12^th, 2020, governmental authorities have encouraged that employers adopt this practice considering the situation surrounding COVID-19.

The employer is encouraged to limit or even cancel meetings, gatherings, social events or other activities where the presence of employees is required. The use of communication technologies such as Skype should be a preferred alternative.

4. What information can an employer request from its employees in order to assess the risks of contagion?

In order to assess the risks and ensure appropriate follow-up of the situation, the employer can ask its employees if they have travelled outside of Canada in the last few weeks and, in the case of an affirmative answer, their destination and date of return. The employer can also require to be informed of any upcoming foreign travel, regardless of the destination.

The employer can also question their employees to find out if they have symptoms associated with COVID-19 or if they think they have been in contact with a person suffering from or showing symptoms of COVID-19.

Once the information has been obtained, the employer should ensure appropriate follow-up with its employees, as symptoms of COVID-19 can take up to fourteen (14) days to appear.

5. Can an employer require an employee returning from a trip abroad to isolate themselves for fourteen (14) days?

An employer may impose a period of isolation on an employee if there are reasonable grounds to do so, in accordance with the employer’s obligation to protect the health and safety of its employees. 

Governmental authorities recommend a fourteen (14) day period of self-isolation following any foreign travel. Should an employer impose a fourteen (14) day period of isolation on a foreign worker who arrives in Canada under an immigration program and who must begin their employment with the organization?

According to the directives announced by the government, the worker should be placed in isolation for fourteen (14) days upon arrival. Directives issued by government authorities should be followed by the employer to limit the risk of spreading COVID-19 within the organization. In this context, there may be certain rules of compliance to follow regarding the payment of the temporary foreign worker's salary during the isolation period, depending on the immigration program under which the worker was hired. For example, if you have hired a foreign worker under the Temporary Foreign Worker Program, it is recommended as a best practice to maintain the worker's remuneration during the period of isolation, so as not to pose any problems in terms of the employer's compliance with the program's rules should there be any future investigation into the matter.

6. How should an employer manage the return of an employee who has travelled to, and returned from, a risk area?

The employer should follow the recommendations of governmental authorities in this regard and ask the employee returning from a trip outside Canada to follow the fourteen (14) day voluntary isolation protocol currently in place.

7. How should the employer respond if an employee displays symptoms of COVID-19 in the workplace?

The employer should promptly isolate the employee from the workplace, impose a fourteen (14) day isolation period and suggest that the employee seek medical attention, if necessary.

It should also be noted that the Collège des médécins (College of Physicians) announced that going forward, nurses are authorized to issue a note to those who test positive for COVID-19 to be off work for fourteen (14) days.

8. Does an employer remain responsible for the remuneration of an employee who is absent due to preventative isolation?

The choice of whether to pay an employee who is absent due to preventative isolation varies from one employer to another and largely depends on internal policies, a collective agreement, a group insurance plan and other applicable measures within the organization. In some cases, the employee may also have access to group disability insurance or employment insurance.

On March 13^th, 2020, the Minister of Labour announced that measures would be announced in the upcoming days to support private companies whose employees will have to be absent, as well as to support employees who will be absent without pay.

9. Does an employer remain responsible for the remuneration of an absent employee who has contracted COVID-19 or who is showing symptoms?

As previously mentioned, remuneration will vary from employer to employer and depends on, amongst other things, existing working conditions. In the case of COVID-19, the absence will be considered like any other absence due to illness.

10. In the event that an employee must be absent from work because of school and daycare closures, and has already taken the ten (10) days provided for in the Act respecting labour standards for family commitments or that their absence exceeds them, can the employer refuse the employee’s absence?

Given the present exceptional circumstances, even if the number of absences taken by an employee exceeds the number of absences provided for in the Act, the employer should remain very open and understanding before refusing any leave and demanding a return to work. We still believe that an employer can question the employee about the actual reasons for the absence and, in the case of childcare, about looking into alternative means, but flexibility is essential. Each case must be carefully considered before refusing requests for any leave beyond what is provided for by the Act.

11. What financial measures are being put in place by governmental authorities to help employers and employees deal with the consequences of the spread of COVID-19?

The Government of Quebec has invited employers to be more accommodating, particularly in light of the numerous requests for absences that will likely occur in the upcoming weeks. Government assistance is also expected to be announced shortly, so the situation must continuously be monitored.

At the federal level, the government has relaxed the rules related to employment insurance in order to help Canadians affected by COVID-19 or placed in isolation. As a result, employees who are unable to work due to illness or quarantine will be able to receive EI sickness benefits. In the case of these claims, the one (1) week waiting period is waived and applications should be processed on a priority basis.

Other measures are also being considered, specifically to help people who would not normally be eligible for EI sickness benefits. Seeing as the situation is evolving rapidly, employers should remain informed and closely monitor new developments.

12. Can an employee benefit from the coverage provided for in the group insurance contract should they need to absent themselves due to COVID-19?

Some insurance companies have published specific information related to COVID-19. With respect to group insurance, an employee who is absent from work after having contracted COVID-19 should be able to benefit from the short-term disability clauses provided for in the insurance contract.

As for a person who is placed in isolation for a certain period of time, the person could potentially be covered by their short-term disability insurance coverage. This will vary according to each group insurance policy and will have to be verified on a case-by-case basis.

In order to be proactive, we therefore suggest that employers with group insurance policies validate the short-term disability coverage offered by the insurer to support employees.

13. What must an employer indicate on the Record of Employment form for an employee to receive EI benefits in relation to COVID-19?

Keep in mind that governmental authorities may provide specific instructions on the code to be used and it is therefore important that employers inform themselves prior to issuing the form. Since no such instructions exist to our knowledge as of today, we recommend the following:

A) if the employee is ill code D;

B) if the employee is absent due to a period of isolation code K;

C) in the case of a lay-off: code A.

14. Can an employee refuse to work because of COVID-19?

The Act respecting occupational health and safety provides that an employee may refuse to report to work should they have reasonable grounds to believe that the performance of their work would expose them to a danger to their health, safety or physical well-being or may also expose another person to a similar danger. In such situations, the employee's wages should continue to be paid, and the employee should not be subject to any measures.

However, an employee may not refuse to report to work simply out of fear of contamination if their work environment does not facilitate contamination and if the employer complies with all the preventive measures recommended by governmental authorities. In a case of an unjustified refusal, the usual rules of unjustified absence apply.

15. What restrictions can an employer impose on its employees regarding future foreign travel?

The employer should cancel all business trips of their employees unless they are necessary.

While an employer cannot prohibit personal travel, employees can be required to disclose whether they plan to travel outside of Canada. The employer should strongly encourage employees to remain in the country and advise employees that should they decide to travel abroad, there are significant risks to their ability to return home or return to work. Employees should also be informed that they will be subject to a period of mandatory isolation upon their return, in accordance with government recommendations in effect at the present time.

It should be noted that Canadian governmental authorities have recommended that everyone avoid unnecessary travel abroad.

For any additional questions and for advice on how to properly manage the current COVID-19 situation, please contact our Labour and Employment Law team who shall be monitoring any and all developments for you and your business.

On May 19, 2020, the Canadian Competition Bureau (the "Bureau") announced a settlement agreement (the "Agreement") between the Commissioner of Competition (the "Commissioner") and Facebook Inc. ("Facebook"). The Agreement follows the Commissioner's finding that Facebook provided false or misleading representations to the public regarding the privacy of personal information obtained from the users of Facebook’s website and mobile applications, primarily Facebook Messenger.

Under the Agreement, Facebook undertakes among other things:

• To refrain from providing misleading representations to its users on the extent to which users may control access to their information, and the sharing of users’ personal information with third parties on its platforms;
• To pay an administrative penalty of 9 million dollars;
• To reimburse the 500,000 dollars in costs incurred by the Commissioner in the course of his investigation; and
• To put in place a Compliance Program¹:

a) ensuring compliance with the order prohibiting Facebook from making false or misleading representations to the public on the disclosure of personal information;

b) harmonizing Facebook’s practices with those in the "Corporate Compliance Programs" bulletin issued by the Bureau; and

c) agreeing to the oversight and supervision of the Commissioner for a period of 10 years.

It is important to note that the Agreement does not constitute the end of the proceedings instituted by the Office of the Privacy Commissioner of Canada on February 6, 2020, which  is currently underway before the Federal Court under the Personal Information Protection and Electronic Documents Act².

Commissioner's position on misleading commercial practices

In his decision, the Commissioner states that the guarantees provided by corporations, in reference to the protection and use of personal information, must comply with the specific provisions of the Competition Act³. The provisions of this act explicitly penalize deceptive marketing practices. The Commissioner has thus demonstrated an intent to protect privacy and personal information in Canada in a manner that is consistent with the Office of the Privacy Commissioner of Canada and Quebec’s access to information commission, the Commission d'accès à l'information du Québec.

To summarize, business practices, which involve the use of personal data, must comply with privacy and personal information laws⁴, and must also respect the provisions of the Competition Act.

The Competition Act, which is a federal statute, prohibits corporations from making "false or misleading claims about a product or service to promote their business interests”⁵.

In the Commissioner's view, this prohibition applies, in particular, to a corporation’s claims about the personal information it collects, the purposes for which it is collected and how it is used, both for "free" digital products and for products and services purchased by consumers⁶.

Examples may include, but are not limited to, representations made to the public when a company offers a so-called "free" mobile application in exchange for personal information, or when it offers a service that requires collecting personal data (for example, statements contained in a contract, a registration form, a policy posted on a website or any other medium).

Commissioner's Investigation and Conclusion

The Commissioner investigated Facebook's practices from 2012 to 2018. This included the information provided to Facebook users on the website and applications, including Facebook Messenger, and the handling and dissemination of user’s personal information. The Commissioner concluded that Facebook had breached its obligations under the Competition Act because Facebook's claims about the privacy of user’s personal information was false and misleading.

Facebook allegedly made representations to the public, through several policies, settings and other parameters. This information was made available to users on Facebook’s website and mobile applications. The information provided users with a false and misleading impression about third parties access to their personal information, including, who could view or access their personal information and the user’s ability of to control the disclosure of their personal information.

Thus, beyond the literal meaning of the words used by Facebook in its representations, the Commissioner considered the overall impression of a user; as a result, Facebook was not in compliance with its duties under the Competition Act.  

Conclusion

In light of the Agreement and the position taken by the Commissioner in this matter, we can assume that the Commissioner may increasingly use the powers granted to him, under the Competition Act, to ensure that businesses comply with the requirements of the Act. These requirements will be enforced in addition to the various federal and provincial laws on privacy and personal information protection.

We have a team of lawyers who can assist you in reviewing your privacy policies to ensure that your business complies with all applicable legislation.

You can contact us for more information.

***

To access the full text of the Agreement, please click on the following link: https://decisions.ct-tc.gc.ca/ct-tc/cdo/fr/item/471812/index.do.

To view the Bureau's "Corporate Compliance Programs" bulletin, please click on the following link: https://www.bureaudelaconcurrence.gc.ca/eic/site/cb-bc.nsf/vwapj/cb-bulletin-corp-compliance-f.pdf/$FILE/cb-bulletin-corp-compliance-f.pdf.

The United Kingdom's (UK) exit from the European Union (EU), which is now official, was the result of a marathon of negotiations in the international diplomatic arena. In addition to everything else, the Brexit has brought with it the end of the application of free trade agreements to which the UK is a party as an EU member state, i.e. the CETA in the case of Canada. The Canada-United Kingdom Trade Continuity Agreement (TCA) is a response to the common interest of both nations in preserving the stability of the business relationship between them. For Canadian businesses, the TCA is therefore a variation on the CETA, with some nuances.

The TCA is primarily a short form agreement due to time constraints. Its purpose is to establish a transitional regime pending the conclusion of a full Free Trade Agreement (FTA) between Canada and the UK. The TCA essentially provides for the provisions of the CETA to continue to apply, with the necessary adjustments set out in it. It officially entered into force on April 1^st, 2021 but had already been provisionally applied for the most part since January 1^st, 2021, except for the services sector.

Tariff elimination is thus maintained, and tariff quotas have been adjusted to reflect the proportionate size of the UK market in relation to the EU. As is often the case, the agri-food sector is an exception in some respects. If you operate in this sector, you should find out more about it. Import formalities should also be monitored. A new tariff for the UK has been created but is not yet active in the Canadian customs system. A special authorization code must therefore be used to benefit from duty remission.

In terms of rules of origin, supply and production chains will benefit from a potentially extended 3-year transition period during which EU cumulation will be allowed. This means that materials originating in the EU or production of which a material has been subject of EU can continue to count towards the origin of the finished product for the purposes of the TCA.

However, Canadian exporters will be well advised to check the continuity of marking requirements within their area. Following the Brexit, the UK created the UK Conformity Assessed Mark (UKCA), which replaces the CE marking except in areas where the legislation has remained the same as the EU. The UKCA will only be required for most products as January 1^st, 2022 but does already apply in some cases.

In this respect, a Customs and Trade Facilitation Committee was established under the TCA to strengthen regulatory cooperation between Canada and the UK. In general, however, the CETA deadlines for mutual recognition or harmonisation of certain standards have started to run again from the beginning under the TCA. This means that accommodations at this level may take longer than under CETA, while technical experts review the applicable legislation in this new bilateral context.

In this sense, the agreement forms a bridge between the pre- and post-Brexit Canada-UK relationship. It also provides that the two countries will begin negotiations on a comprehensive FTA within one year of the TCA coming into force, with an objective to concluding it within three years. 

The UK has also formally applied to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), to which Canada is also a party. The CPTPP was drafted after CETA and goes further than CETA in some respects, considering the changing context and practices. This can be expected to be the case with the framework for the future trade relationship between Canada and the UK, which has already discussed the importance of modernizing provisions on, for example, e-commerce, privacy, and the environment.  

Until then, our team and those of our affiliated firms around the world can assist you with the specific steps involved in the international development of your business and answer your questions on how best to benefit from the free trade agreements put in place by Canada.

IRCC update on travel in Canada effective March 23, 2020.

Workers, students and permanent residents whose applications have been approved, but who have not yet arrived, should not travel. We have announced exemptions, but they are not in place. Travel restrictions are still in place for these groups.

Only Canadian citizens and permanent residents of Canada, as well as certain foreigners travelling from the United States, who have lived in the U.S. for at least 14 days and are symptom-free, may enter Canada by air at this time.

https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-special-measures.html

This update follows the restrictions regarding the travel ban imposed by the Government of Canada on March 20, 2020.

Please find the list of the impacted temporary residents below:

• Temporary Foreign Workers;
• Seasonal Agricultural Workers;
• Workers in the fish and seafood industry;
• Caregivers;
• International Students (with approved study permits or valid study permits);
• Permanent Resident applicants for which the permanent residency application has been approved but had not yet travelled to Canada.

Attention: The aforementioned people exempted from the travel ban must not yet enter Canada. Further announcements are expected at the beginning of the coming week regarding the matter.

The travels of the people mentioned above will thus be considered essential travel in regards to the new travel ban into Canada.

Please note, however, that all travellers arriving from abroad must undertake health screening protocols before their arrival into Canada and must isolate during 14 days following their arrival to Canada. Companies will be responsible for enforcing the 14-day isolation period among seasonal agricultural workers who will join their business in the coming weeks.

The aforementioned persons are therefore added to the pre-existing exemptions to the travel ban announced at the beginning of the week, as listed below:

• Foreign nationals travelling at the invitation of the Canadian government for a purpose related to the containment of COVID-19;
• Close family members of Canadian citizens;
• Close family members of permanent residents;
• A person who is authorized, in writing, by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members;
• A person registered as an Indian under the Indian Act;
• Accredited diplomats and family members (including NATO, those under the United Nations Headquarters Agreement, other organizations);
• Air crew;
• Any foreign national, or group of foreign nationals, whose entry would in the national interest, as determined by the Minister of Foreign Affairs, the Minister of Immigration, Refugees and Citizenship, the Minister of Public Safety;
• Members of the Canadian military, visiting forces and their family members;
• Transiting passengers.

Recruitment relief regarding the Labour Market Impact Assessments (LMIA): The required 2-week recruitment period in the agriculture and food processing industry will be waived for the next 6 months. This temporary measure will reduce the processing time for this type of application.

Temporary Foreign Workers in the low-wage stream: The maximum duration allowed will go from 1 year to 2 years.

Many businesses were awaiting temporary foreign workers to face the new challenges and the growing pressures on our agricultural industry will definitely require additional Seasonal Agricultural Workers this year. Our team remains available to these businesses to help ease the process of obtaining the required work permits for their employees.

Please do not hesitate to one of our team members for any additional information.

Program Summary

The Canada Mortgage and Housing Corporation (CMHC) administers this assistance program on behalf of the Government of Canada and its provincial and territorial partners.

The CECRA is offering forgivable loans to eligible commercial property owners so that they can reduce the rent payable by their tenants who are small businesses (SMEs) affected by the effects of the COVID-19 crisis by at least 75% for the months of April, May and June 2020.

Program’s Aim

Since the CMHC and the federal government are currently working to finalize the details of this program, the following, announced by the CMHC, outlines how it will operate:

• “The CECRA will cover 50% of the gross rent owed by impacted small business tenants during the 3-month period of April, May and June 2020;
• The property owner will be responsible for no less than half of the remaining 50% of the gross rent payments (paying no less than 25% of the total);
• The SME will be responsible for no more than half of the remaining 50% of the gross rent payments (paying no more than 25% of the total).”

Who is Eligible to Apply for the CECRA?

According to available information available from the CMHC, the property owner must meet the following requirements in order to be eligible for the CECRA:

• “You own property that generates rental revenue from commercial real property located in Canada.
• You are the property owner of the commercial real property where the impacted small business tenants are located.
• You have a mortgage loan secured by the commercial real property, occupied by one or more small business tenants.*
• You have entered or will enter into a rent reduction agreement for the period of April, May, and June 2020, that will reduce impacted small business tenant’s rent by at least 75%.
• Your rent reduction agreement with impacted tenants includes a moratorium on eviction for the period of April, May and June 2020.
• You have declared rental income on your tax return (personal or corporate) for tax years 2018 and/or 2019.”

* For those property owners who do not have a mortgage, an alternative mechanism will be implemented. Further information will be outlined in the near future.

Which Small Business Tenants are Covered by the CECRA?

SMEs, including NPOs covered by the CECRA, must meet the following criteria:

• “pay no more than $50,000 in monthly gross rent per location (as defined by a valid and enforceable lease agreement),
• generate no more than $20 million in gross annual revenues, calculated on a consolidated basis (at the ultimate parent level), and
• have temporarily ceased operations (i.e. generating no revenues), or has experienced at least a 70% decline in pre-COVID-19 revenues.**

** To measure revenue loss, small businesses can compare revenues in April, May and June of 2020 to that of the same month of 2019. They can also use an average of their revenues earned in January and February of 2020.”

Agreement to Intervene Between the Owner (Landlord) and the Tenant (SME)

In accordance with the eligibility criteria outlined above, an agreement for each application must be reached between the landlord and the tenant who qualify with the CECRA.

We are in the process of drafting a template agreement that will be enhanced and completed when all the specific details of this program are available at the beginning of May 2020.

The information contained in this memo is taken from the CMHC website. This memo is not a legal opinion and each situation must be analyzed in the light of its own facts.

The Honourable Nicholas Kasirer decided that a child cannot have three parents, which decision was endorsed by the Honourable Jocelyn F. Rancourt and Stephen W. Hamilton (Family Law - 191677, 2019 QCCA 1386). This decision in matters of filiation reversed in part the Superior Court judgment rendered on April 23^rd, 2018 by the Honourable Gary D. Morrison (Family Law - 18968, 2018 QCCS 1900).

In this case, the couple being Mrs. L. and Mrs. R. wish to have a child. To do so, they signed an "Agreement to Bring a Child into the World" with Mr. M., which agreement was notarized.

The child born as a result of a relationship between R., the biological mother, and M., the biological father. However, the birth certificate indicates that the child's parents are R. and L. It should be noted that L. undertook a process to change their gender following the birth of the child, which resulted in a change to the child's birth certificate.

The couple is having trouble and a petition for divorce is filed. An interim consent is then signed regarding the joint exercise of their parental authority, without any consideration toward the biological father. In response, M. files an application to institute proceedings for recognition of paternity. The issue in dispute therefore relates to the determination of the child's filiation, which is shared between L., R. and M.

Mr. Justice Morrison concluded a parental project between the three parties in accordance with a notarized agreement. As a matter of fact, the three parties developed a parental project and set out the roles of each party in the child's life. Consequently, this is not a case of filiation by assisted procreation and the rules of filiation by blood apply.

Since triparental (or multiparental) is not recognized in Quebec, the Superior Court granted the biological father's application and ordered the Civil Director to amend the birth certificate so that the names of both biological parents be indicated on it, considering that "biological truth must predominate". Moreover, following the separation, M. and R. shared custody of the child, while L. exercised rights of access. 

But the story does not end there since L. applied to the Court of Appeal to overturn the Superior Court judgment. The Court of Appeal concluded that the judgment of the court of first instance should be reversed in part on the grounds that the judge erred in law in his statutory interpretation of the "parental project involving assisted procreation" provided for in Article 538 of the Civil Code of Québec. Specifically, the third rule identified by the case law was misinterpreted since the distinction required between "parentage" (based on the bond of filiation) and "parenthood" (based on the exercise of functions related to parental authority) for the purposes of determining the child's filiation was not made.

However, as the Court of Appeal points out, “the definition of the parental project, as the basis for filiation involving assisted procreation, is based on a willing relationship between the parties to the project and the child and, for the spawner, the awareness and acceptance of his limited role in this regard”. In this case, the biological father renounced his filiation at the birth of the child.

Consequently, rather than applying the rules of filiation by blood as proposed by the first instance judge, the Court of Appeal applied the rules of filiation involving assisted procreation, which had the effect of considering the biological father as a third party external to the parental project, having no rights with respect to the child as such.

Although the paths used by the Superior Court (filiation by blood) and the Court of Appeal (filiation involving assisted procreation) diverged in determining the filiation of the child in question, a principle of law brings these two judicial bodies together: the family of this child is biparental in both cases, considering that Quebec law does not recognize that a child could have three parents. Nevertheless, as the Court of Appeal pointed out, arrangements such as bi-parentage for filiation or tri-parenthood for the exercise of certain parental responsibilities could be made legally, since nothing in the law of assisted procreation prevents a third party in the sense of filiation from being the biological father of the child" as was the case in accordance with Article 539.1 of the Civil Code of Québec.

As a matter of fact, only urgent requests continue to proceed, and technological methods are favoured. However, many of these requests require a sworn statement, formerly known as an affidavit, so it could be presented. Such statements are also required for files that will proceed by way of paper only.

In this era of social distancing, the best way to complete such statements remained a source of questioning until the publication of information by the Department of Justice on March 20.

Thus, sworn statements may be made by technological methods, if the following conditions are met:

• The signature may be affixed by various technological methods as long as it makes it possible to identify the signatories and the manifestation of their consent;
• The declarant and the commissioner of oaths must be able to see and hear each other simultaneously;
• The declarant and the commissioner of oaths must be able to look at the document that is the subject of the oath;
• The integrity and, where appropriate, confidentiality of the shared documents and the swearing process must be assured.

Obviously, the usual indications (date, place, signature, etc.) must also appear in the statement.

Thus, we can imagine several methods to carry out an oath by technological methods. Since mostly all smartphones have a function that allows video conversations, this function could be used to allow the declarant and the commissioner of oaths to see each other. The declarant could then sign the statement, scan it and send it to the commissioner, who will do the same.

For those whom this is possible will also be able to affix an electronic signature to the document. At the same time, certain software programs could be used to display the document simultaneously on two screens.

It will also be necessary to ensure that the technological methods selected will adequately protect the information exchanged and its confidentiality as well as the integrity of the documents.

To consult the Department of Justice publication: https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/Fr__francais_/centredoc/publications/systeme-judiciaire/Assermentation_distance.pdf

The Regulations amending the Trade-marks Regulations were published on June 21, 2023, in the Canada Gazette, Part II, Volume 157, Number 13. 

The 25% increase in official fees will take effect on January 1, 2024.

For trademarks, the most common official fees [1] will be adjusted as follows: 

If you are planning to file trademark applications in 2024, we recommend that you bring your plans forward and proceed by December 31, 2023.

If your trademark registration expires in 2024, we recommend that you renew it by December 31, 2023.

The countdown has begun! In just over 3 months, the new CIPO fees will apply. We invite you to take advantage of this delay to anticipate your plans for protecting your trademarks in Canada and save on the official fees.

Do not hesitate to contact our team of trademark professionals for any questions or additional information.

Bill 96, a law amending the Charter of the French language (the “Charter”), has been adopted by the Quebec government. For companies doing business in Quebec, this will reinforce obligations regarding the use of French as the language of business, and it will have an important impact on trademarks and business names. The new law will also impose obligations related to the use of French in contracts, communications and in the workplace. Do not hesitate to contact our business law or labour law team for any advice you may need on this regard.

One of the main changes is that a trademark written in a language other than French must be translated, unless it has been registered with the Canadian Intellectual Property Office (CIPO), and provided that no French version is on the CIPO register. In Canada, the trademark registration process now takes more than three years, so we recommend those who are using non-French trademarks to take immediate action.  

It is important to note that even if a non-French trademark is already registered, the Charter prescribes certain restrictions pertaining to the language of its signage.

Bill 96 goes even further, as it pertains to trademarks for goods. This new law will therefore affect businesses in Quebec, as well as foreign businesses operating in Quebec.

We will first address the new law as it pertains to the signage of trademarks and business names visible on outside premises, and then as it pertains to products.

TRADEMARK ON PUBLIC SIGNS AND POSTERS VISIBLE FROM OUTSIDE PREMISES

Registered Tademark in French

You are required to use the French version of a trademark if it is pending or registered at the Canadian Intellectual Property Office (CIPO), even if you filed a non-French version of the trademark.

Registered Trademark in a Language Other Than French

You are not required to translate your trademark registered in Canada. However, on public signs and posters visible from outside premises, French text accompanying the mark must be markedly predominant.

The new exception for registered trademarks, according to Article 58.1 of the Charter, states that:

"Notwithstanding section 58, on public signs, posters and in commercial advertising, a trademark may be written, even in part, only in a language other than French, when, at the same time, it is a registered trademark within the meaning of the Trade-marks Act (Revised Statutes of Canada, Chapter T-13) and that no corresponding version in French in the register kept under this Act.”

However, in the public display visible from outside premises, French be markedly predominant, when such a mark appears therein in such another language.“[1] (free translation, our emphasis)

With the new legislation, the criteria of sufficient presence of French on accompanying text with a trademark visible from outside a building is replaced by the “markedly predominantly” criteria. A regulation already in effect is defining the scope of the expression. For example, when text appears on the same sign or poster, we must meet the following conditions:

“Where texts both in French and in another language appear on the same sign or poster, the text in French is deemed to have a much greater visual impact if the following conditions are met:

1. the space allotted to the text in French is at least twice as large as the space allotted to the text in the other language;
2. the characters used in the text in French are at least twice as large as those used in the text in the other language; and
3. the other characteristics of the sign or poster do not have the effect of reducing the visual impact of the text in French.”[2]

Non-Registered Trademark in a Language Other Than French

There are no exceptions in this case. All non-registered trademarks in a language other than French must be accompanied by a predominantly featured translation. Moreover, you must conform with having the signage predominantly in French.

Business Names

It is to be noted that the exception for registered trademarks does not apply for a business name unless this name is registered as a trademark. If the business name is not registered as a trademark, you must use a French version or have the business name be accompanied by a French translation that is clearly predominant.

TRADEMARK IN ASSOCIATION WITH GOODS

Bill 96 also affects trademarks in conjunction with products and their packaging.

A registered trademark in a language other than French may be used on products or packaging, unless a French version of the trademark is pending or registered.

However, the law goes even further, because for registered trademarks containing non-French descriptive or generic elements, a French translation of such terms must be visible on the product.

While the bill was being studied, the example of SOFTSOAP was given. The registered trademark SOFTSOAP contains descriptive elements such as lavender and shea butter, refill 50 ounces or washes away bacteria. Trademark owners sometimes register the product label as a trademark. The new law requires that descriptive elements which are part of the registered trademark must be translated in French.

APPLICABLE PENALTIES

Until now, the Office québécois de la langue française (QQLF) only took actions against businesses with an establishment in Quebec. With the new law, we can expect that the OQLF will now take actions against foreign companies selling products or services in Quebec.

The fines for non-conformity are considerable $700 to $30,000 may be fined for a first offense, and each day of non-conformity will be considered as a separate offense. It is important to note that the directors and officers of a business may be held personally responsible if they commit an infraction of the law. Directors and officers will be presumed to have committed the infraction themselves if they cannot prove to have taken the necessary precaution to prevent the infraction.[3]

Moreover, the OQLF could issue an injunction to ensure that the requirements of the Charter are respected.

CONCLUSION

Once the law receives Royal Assent, it will gradually come into effect over the course of three years.

Considering that the trademark registration process currently takes more than three years, it is essential to quickly file your applications for non-French trademarks in Canada in order to benefit from the exception for registered trademarks.

Two options to consider when creating new trademarks are choosing French trademarks, or trademarks comprised of invented words that are not part of any language.

Businesses operating in Quebec will have to review their signs, posters, websites, and all other use of their trademarks in order to make sure that they meet the new law requirements.

We invite you to contact our team of trademark professionals if you require assistance.

The bill and its amendments are available here.

The content of this article is informational only and does not constitute legal advice.

The College of Patent Agents and Trademark Agents (CPATA) will be responsible for maintaining the registers of Patent Agents and Trademark Agents; to administer the qualifying examinations for agents and to enforce an agent code of conduct. One of the objectives of CPATA is to protect the public by ensuring that agents are competent and by setting up an investigation mechanism following a complaint.[i] For more information about the profession, you can consult the website www.cpata-cabamc.ca. The profession was previously regulated by the federal government through the Canadian Intellectual Property Office (CIPO).

Patent agents are the only professionals in Canada who can file a patent application and represent an inventor or a business with CIPO. Trademark agents are the only professionals in Canada who can apply for trademark registration and represent a person or business with CIPO.

Our team of trademark agents is at your service. Please do not hesitate to contact us for all your trademark protection and intellectual property needs.

For example, the fees for filing a trademark application will increase from $330.00 to $336.60 for the first class of products and services and from $100 to $102 per additional class.

This is not a significant increase that could affect the decision of whether or not to file an application, such as the United States Patent and Trademark Office which increase the regular electronic filing fee from US$275 to US$350. However, CIPO’s decision to adjust some official fees each year for inflation is entirely new. In fact, the official fee for filing an application for registration has been $250 regardless of the number of classes for more than a decade, before it was increased in 2019 with the reform of the law and Canada’s accession to the Madrid Protocol.

Source: https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00142.html

This exceptional delay finally provokes a timid response from the administrative authorities to protect the rights of trademark owners awaiting the grant of their rights. In certain circumstances, it is now possible to file a request for expedited examination of a trademark application.

Also, to participate in the national effort against the COVID-19 pandemic, CIPO has opened the door to requests for expedited examination of trademark applications associated with services or products related to COVID-19.

The situations and criteria to be met are summarized below:

A. Your rights are at risk due to the actions of third parties

Since May 3, 2021, it is now possible to file a request for expedited examination when you face at least one of the following situations:

1. A court action is expected or underway in Canada with respect to your trademark in association with the goods or services listed in the application;
2. You are in the process of combating counterfeit products at the Canadian border with respect to your trademark in association with the goods or services listed in the application;
3. You must obtain registration of your trademark to protect your intellectual property rights from being severely disadvantaged on online marketplaces; or
4. You must obtain registration of your trademark to preserve your claim to priority within a defined deadline and following a request by a foreign intellectual property office. Note that in such cases the request must be attached to the Affidavit or Statutory Declaration.

This request must be accompanied by an Affidavit or Statutory Declaration signed by a person having knowledge of the facts and stating the circumstances and reasons for the request.

While the circumstances described in points 1, 2 and 4 are fairly clear, the circumstances described in point 3 are open to different situations. If you see facts that cause you to fear a loss of rights in the protection of your trademark(s) in the context of online commerce, do not hesitate to contact one of our trademark team members to discuss your situation.

B. Your goods and services are medical in nature and related to COVID-19

Since a few months now, it is possible to request an expedited examination of a trademark application in relation to goods and services of a medical nature in connection with COVID-19.

The request must be accompanied by an Affidavit or Statutory Declaration signed by a person having knowledge of the facts. To be eligible, you must be in one of the following situations:

1.   There are legal proceedings pending in Canada in respect of your trademark in association with the goods or services listed in your trademark application;

2.   You are fighting counterfeit goods at the Canadian border with respect to your trademark in association with the goods or services listed in your trademark application;

3.   You have applied to Health Canada for authorization or have already been authorized by Health Canada to use the goods or services listed in your trademark application under the same name as the trademark. CIPO cites the following examples:

• a Medical Device Licence (MDL);
• a Medical Device Establishment Licence (MDEL);
• an authorization under the Interim Order Respecting the Importation and Sale of Medical Devices for Use in Relation to COVID-19;
• an investigational testing authorization (ITA);
• an authorization under the Interim Order Respecting Clinical Trials for Medical Devices and Drugs Relating to COVID-19;
• No Object Letter (NOL) for clinical trials;
• Notice of Compliance (NoC);
• an authorization under the Interim Order Respecting the Importation, Sale, and Advertising of Drugs for Use in Relation to COVID-19.

To be eligible for expedited examination under this procedure, the trademark application must include at least one of the following types of products or services:

• pharmaceuticals, medical devices (such as diagnostic tests, ventilators) or medical protective equipment (such as sanitary masks for protection against viral infections, disposable gloves for medical purposes) that prevent, diagnose, treat, or cure COVID-19;
• medical services or medical research services for the prevention, diagnosis, treatment, or cure of COVID-19.

Our team can assist you with all your trademarks needs in Canada and foreign countries. Do not hesitate to contact us.

On November 17, 2020, the Innovation, Science, and Industry Minister Navdeep Bains introduced Bill C-11, An Act to Enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act and to make consequential and related amendments to other Acts (CPPA). If enacted, the bill will enhance the protection of data that is collected by private institutions throughout Canada. The legislation is still at the stages of its first reading and will likely be amended substantially before its enactment. Nonetheless discussion of the bill in its current form is relevant to understand where the wind of change is blowing in relation to privacy legislation in Canada. In its current form, the bill includes many changes to Canada’s existing framework and repeals large sections of the current federal privacy law The Personal Information Protection and Electronic Documents Act (PIPEDA). Bill C-11 also implements the ten principles contained in the Canadian digital charter which is not a legal document and for this reason, it has no legal force. Therefore, the proposed law is an important step towards giving Canadians greater control over their personal data.