Isabelle P. Mercure Partner, Lawyer

Artificial intelligence technologies are extremely promising in healthcare.1 By examining, cross-referencing and comparing a phenomenal amount of data,2 AI lets researchers work more quickly at a lower cost3 and facilitates doctors’ decision-making with regard to diagnosis, treatment and choice of prescription. The integration of AI into the healthcare field can take various forms:4 Management of electronic medical records (e.g., Omnimed) Direct patient care to improve decision-making with regard to diagnosis, prognosis and choice of treatment method Integration in the area of monitoring and medication (e.g., Dispill) The performance of robotic exams and surgeries Indirect patient care functions, such as: Optimization of workflow Better management of hospital inventory Home care applications, where portable devices and sensors would be used to assess and predict patient needs. Working to protect innovators, their clients and the public No matter what form AI takes when it is implemented into the healthcare field in Quebec, as with any innovation, we must adapt and work to protect the public, innovators and their clients. What is an innovator? An innovator is a developer, provider or distributor who is involved in the development and marketing of products that use artificial intelligence. 1 - Innovator protection As the future of healthcare lies in an increased integration of AI, innovators must be properly supported and protected, which means that they must be equipped with all of the appropriate tools for protecting their rights, especially intellectual property rights. At the time of product development: they must make sure that they obtain the necessary guarantees and commitments from their partners in order to be able to assert their rights in the event that their technology is appropriated by a third party.  At the time of product marketing: having taken care to properly protect their rights, they will avoid prosecution or claims, whether for patent infringement or otherwise. In addition, if the proposed technological solution implies that the data collected, transmitted or analyzed is stored and pooled or that it is shared with other stakeholders, innovators must ensure in particular that the patients’ personal information is protected in accordance with the applicable laws and regulations5 and that this data is not used for commercial purposes. If not, an innovator could be the target of a claim by professional organizations or by patient groups and, when certification is required, that certification could be withdrawn by the Ministère de la Santé et des Services sociaux [health and human services ministry]. To learn more about innovator protection, we invite you to read the following article: Artificial intelligence: contractual obligations beyond the buzzwords. 2 - Protection of clients (buyers of artificial intelligence solutions) Artificial intelligence operations have several intrinsic limits, including the prioritization of quantity over quality of the data collected; systematic errors that are reproduced or amplified;6 and even human error in the entry of the data relied on by professionals and researchers. Accordingly, innovators must ensure that they properly warn their clients of the limits and risks tied to the use of their products in order to protect themselves against potential claims. They must therefore be objective in the way that they represent their products. For example, terms like “intelligent database” should be used rather than “diagnostic systems.” This word choice will avoid both potential civil liability claims and the possibility of being reprimanded for violating the Medical Act for performing functions reserved only for doctors.7 The innovator will also be required to enter into a contract with the client that is clear and detailed with regard to the use, access and sharing of data collected in electronic medical records (EMR). 3 - Protection of the public (Collège des médecins du Québec [“Quebec college of physicians”] regulation) All products using AI technology must allow doctors to respect their obligations with regard to creating and maintaining EMR. These obligations are included in Section 9 of the Collège des médecins draft regulation, which is expected to come into force in the near future and will make the use of EMR mandatory. The Collège also intends to specify in this regulation that collected data may not be used [TRANSLATION] “for any purpose other than to monitor and treat patients.”8 The Inquiries Division of the Collège has also recently cautioned its members that the technological tools that they use [TRANSLATION] “must be used exclusively within the context of their duties, meaning the administration of care.”9 The current position of the Collège des médecins and the Ministère de la Santé is that the marketing of data contained in EMR is prohibited even if the data is anonymous. Furthermore, according to Dr. Yves Robert, Secretary of the Collège, even if the shared data is anonymous, it may not be used either to promote a product, such as a less expensive medication in the case of an insurance company, or to influence a doctor’s choice when making a decision. 10 The Inquiries Division has also reminded members of their ethical obligation to “disregard any intervention by a third party which could influence the performance of their professional duties to the detriment of their patient, a group of individuals or a population.11”   The use of Big Data would create more than $300 billion USD in value, with two-thirds of that amount coming from reduced expenditures.  Big Data Analytics in Healthcare, BioMed Research International, vol. 2015, Article ID 370194; see also Top health industry issues of 2018, PwC Health Research Institute, p. 29. The American consortium Kaiser Permanente holds around 30 petabytes of data, or 30 million gigabytes, and collects 2 terabytes daily. Mining Electronic Records for Revealing Health Data, New York Times, January 14, 2013. For examples of the integration of AI in healthcare in Canada, see Challenge Ahead: Integrating Robotics, Artificial Intelligence and 3D Printing Technologies into Canada’s Healthcare Systems , October 2017. See in particular S. 20 of the Code of ethics of physicians, CQLR c. M-9, r. 17 and the Act respecting the protection of personal information in the private sector, CQLR c P-39. See When artificial intelligence is discriminatory. Medical Act, CQLR c. M-9, s. 31. Id., S. 9, par. 9. L’accès au dossier médical électronique : exclusivement pour un usage professionnel [“Access to medical records: exclusively for professional use”], Inquiries Division of the Collège des médecins du Québec, February 13, 2018. Marie-Claude Malboeuf, “Dossiers médicaux à vendre ” [“Medical records for sale”], La Presse.ca, March 2, 2018. Accès au dossier médical électronique par les fournisseurs [“Access to electronic medical records by providers”], Inquiries Division of the Collège des médecins du Québec, May 29, 2017, citing section 64 of the Code of Ethics of Physicians, supra, note 12.

The use of a nominee corporation The Act Respecting Duties on Transfers of Immovables (the “Act”) imposes transfer duties (also known as the “welcome tax”) on the transfer of immovables in Quebec. Since transfer duties are only payable from the time the transfer is registered in the land register (section 6 of the Act), some property structures make it possible, in practice, to avoid paying them. One of these ownership structures consists in registering a nominee corporation as the owner in the land register, while the real owner is the corporation’s shareholder. This way, upon the sale of the property, it is not the nominee corporation who is a party to the transaction, but rather its shareholder who sells the property and the shares of the nominee corporation. The name of the owner of the immovable remaining unchanged in the land register, this makes it possible to avoid paying transfer duties. These transactions deprive municipalities of significant revenues, as was the case for Quebec City when the Hotel Le Concorde was sold in 2014. The 2016-2017 budget tabled on March 17, 2016 by Minister of Finance Carlos Leitão (the “Budget”) provides for significant amendments to the Act to end this practice. Therefore, effective from March 18, 2016, the Act will be amended to provide that the payment of transfer duties will be due from the date an immovable is transferred, irrespective of whether or not the transfer deed is registered in the land register. In the case of a transfer which is not registered in the land register, the transferee will be required to file a notice of disclosure within 90 days from the date of the transfer, failing which he will be required to pay to the Minister of Revenue supplementary duties equal to 150% of the transfer duties payable in respect of the transfer, as well as interest. The Budget also announces other, more technical changes to the Act, which are summarized hereinafter. Although most of the changes announced in the Budget also apply from March 18, 2016, it must be noted that no bill has been tabled. Pending the adoption of the Budget and the tabling of a Bill, it is recommended to rely on what is provided for in the Budget. Tightening of some exemptions Transfer between a legal person and a natural person who controls the shares: clarifications as to the concept of “control” Until the Budget, there was an exemption from transfer duties when the transfer of an immovable was made between, on the one hand, a natural person and, on the other hand, a legal person, 90% of the issued fully voting shares of whom were owned by the natural person immediately before the transfer. The Budget specifies the conditions for the exemption as to the 90% percentage which must henceforth be established by calculating the number of votes attached to the issued shares of the share capital of the legal person, irrespective of the number of shares held. This amendment does away with the ambiguity that existed in the case of multiple voting shares. Transfer between “closely related legal persons”: reduction in scope of this definition An exemption is also provided for when the transfer of an immovable occurs between two closely related persons. Until the Budget, legal persons were considered to be closely related, particularly when one of them held either (i) more than 90% of the fully voting shares of the other legal person or (ii) at least 90% of the fair market value (FMV) of all the shares issued and outstanding of the other legal person. The Budget restricts the scope of the definition of “closely related legal persons” by deleting the criterion based on the FMV of the shares because it was difficult in practice to verify compliance. It is to be noted that for the purpose of this definition, the obligation to hold 90% of the voting shares will also be replaced with an obligation for one of the legal persons to hold 90% of the voting rights attached to the issued shares of the share capital of the other legal person, irrespective of the number of shares held. New obligation to maintain the conditions for exemption for a minimum period of 24 months following or preceding the transfer Furthermore, in order to eliminate some schemes, the sole purpose of which is to momentarily satisfy the exemption condition related to the percentage of voting rights, the Act will be amended to introduce a minimum period during which the condition for exemption of exempted transfers will be required to be maintained. Thus, in the case of the exempted transfer of an immovable by a natural person to a legal person or between two closely related legal persons, compliance with the condition for exemption pertaining to the percentage of voting rights must maintain for a 24 month period following the transfer. In the case of the transfer by a legal person to a natural person, the exemption will only be granted if the condition has been complied with for a minimum period of 24 months preceding the transfer. If the legal person which transferred the immovable to a legal person has been incorporated for less than 24 months prior to the transfer, the exemption from the payment of the transfer duties will be granted provided that the condition of exemption has been satisfied from the date of the incorporation of the legal person until the moment immediately preceding the transfer. In the case where a transferee ceases to be entitled to the exemption, he will be required to pay the transfer duties. In such a case, a notice of disclosure will be required to be provided to the municipality within 90 days from the date on which such condition ceases being met, failing which the transferee will be required to pay to the Minister of Revenue supplementary duties equal to 150% of the transfer duties payable in respect of the transfer, as well as interest. Beware of some provisions of shareholder agreements and other agreements Furthermore, when, during the 24-month period preceding or following, as the case may be, the date of transfer of an immovable which allowed the transferee to benefit from the exemption from transfer duties, a person acquires the right to acquire or control the voting rights or require the legal person to redeem, acquire or cancel shares of its share capital held by other shareholders, it will then be deemed to have acquired the shares on which this right applies, except for some exceptions which will be found in the amendments to the Act. New exemption for transfer between former common-law partners The Act will be amended to introduce an exemption from the payment of the transfer duties when the transfer of an immovable is made between former common-law partners within 12 months following the breakup. Common-law partners are two persons who have been living together in a marital relationship for a 12-month period or are the father and mother of a same child. This amendment will apply in respect of the transfer of an immovable made after March 17, 2016.