On January 15, 2020, the Court of Québec handed down an important decision that could have an impact very quickly on the entire childcare network.1. In its ruling dealing with a breach of the obligation to provide constant supervision of the children, the court questioned the concept of auto-pauses (also known as pauses jumelées or pauses autogérées). This widespread practice consists of having a single childcare staff member, usually an educator, temporarily supervise two groups of napping children to allow another childcare staff member to go on a break. The court took advantage of the opportunity to delimit the obligation of constant supervision set out in section 100 of the Educational Childcare Regulation2 (The “Regulation”), awhich applies indiscriminately to all childcare providers: the centres de la petite enfance (CPEs), daycare centres and home childcare providers. Finally, the court made some interesting comments on the calculation of the ratios, although this was not a central issue in the dispute. The court’s reasons and comments will likely lead childcare providers to question the organization of their work, their practices, directives and even their individual or collective work agreements. Decision Facts In April 2018, an inspector from the Ministère de la Famille visited a CPE to conduct a full inspection for the renewal of its permit, and to deal with a complaint about child supervision during naps. In the afternoon, the inspector entered a room and found seven children lying on small mats scattered on the floor. Some of them were not sleeping and no educator was present. However, in an adjacent room, an educator was sitting along the back wall. This second room had ten other children, also lying down for a nap. The evidence showed that an observation window separated the two rooms, which were also connected by a shared bathroom. The court noted that it was impossible at that time for the educator to get a full view of the adjacent room, in particular, because of the furniture that was dispersed about the room and partially obstructed the view. A statement of offence for failure to maintain constant supervision was issued to the CPE, although the practice of placing two groups under the supervision of a single educator at nap time, to allow a colleague to take a break, is a well-known practice. The concept of constant supervision To date, there are very few decisions dealing with the concept of constant supervision in a childcare context. The court, therefore, used this opportunity to consider this concept in greater detail [translation]: «  The CPE [...] must ensure that the children to whom childcare is provided are constantly supervised for their safety;  The French adjective constante [constant] is defined in the Larousse dictionary as follows: [translation] that which is uninterrupted, continuous; durable.  Le Petit Druide des synonymes et des antonymes has the following synonyms for the adjective constante: [translation] continual, continuous, at every moment, unceasing, uninterrupted, perpetual, without end. The antonyms are: [translation] discontinuous, intermittent, irregular.  The Larousse dictionary defines the French word surveiller [to supervise] as the act of observing attentively. In the decision in Directeur des poursuites criminelles et pénales c. Centre de la petite enfance (CPE) Le petit sentier, Judge Rivest noted that it is the action of watching over someone in one’s care and/or for whom one is responsible, taking care of them, being attentive.  There are few reported decisions dealing with this issue. Based on the decisions filed with the pleadings, the Court finds that the adequacy of the supervision depends on the specific facts of each case.  Since young children are involved in this case, the Court finds that this supervision must be visual and auditory to be effective. (References omitted) Applying this reasoning to the facts in this case, the court found, beyond any reasonable doubt, that the children in the group for which there was momentarily no educator were not under constant, but rather “intermittent", supervision. Due diligence and the auto-pause concept At trial, the CPE presented a so-called "due diligence" defence, arguing that all reasonable precautions were taken to avoid committing the offence. In particular, it referred to an internal memo sent to all the employees on how to proceed during an auto-pause. According to the memo, educators must be near the observation window and walk regularly between the two rooms to verify the children’s status. In the event that a child wakes up, the instruction is then to respond to his or her needs promptly and engage in a quiet game with the child in order to respect the other children’s nap time. The CPE demonstrated that this directive had been communicated to all the staff and that it was regularly discussed at meetings. In addition, a pedagogical adviser ensured that this rule was respected. The failure to comply with this obligation could result in disciplinary sanctions up to and including dismissal. Despite the foregoing, the court rejected the CPE’s due diligence defence. It stated that in the context of an auto-pause, the directive was not able to bring the CPE into compliance with the Educational Childcare Act3 (the “Act”). It was in fact inevitable, in the court's view, that the educator would have to attend to a specific child at some point in time and would no longer be able to see what was happening in the other room. The court concluded by adding that a reasonable person placed in the same circumstances should provide for a sufficient quantity of staff to replace the educators during their breaks. On this point, it noted that [translation] “the children's safety must take precedence over the economic interests of the [childcare] service providers”4. Furthermore, it stated that, despite the CPE's efforts to ensure compliance with its directives, it was the auto-pause concept itself that was problematic and, in the court’s words, [translation] “completely inappropriate”5. Thus, the CPE was convicted of breaching the obligation of constant supervision of the children and ordered to pay a fine. What is the impact with respect to the organization of work for childcare providers? The court’s decision will likely raise doubts about the organization of work for many childcare service providers, particularly permit holders who make use of the auto-pause concept. However, the ramifications could be much more far-reaching. Level of supervision We can easily imagine that the issue of adequate supervision could give rise to many challenges on a daily basis. The court indicated that such supervision must be auditory and visual, but may also vary depending on the circumstances. The analysis of a situation could therefore be influenced by various things, such as the premises (private residence, facility, park, etc.), their layout (presence of furniture, size of openings, etc.), the location of the workers and children while services are being provided, and the nature of the activities conducted. Given the court’s requirement that the supervision must be both visual and auditory, the assessment of its adequacy would seem to be all the more likely to raise questions for home childcare providers and compliance officers in coordinating offices who conduct visits to monitor these providers. Calculating ratios It should be noted that the offence with which the CPE was charged in this case did not concern compliance with the ratios provided for under the Act for the number of children to childcare staff that are required to be present on the premises during the provision of services. The issue before the court was strictly to determine whether the CPE was providing constant supervision of the two groups of children at the time of the inspection. While the court stated that it would reserve its comments on the question of the ratio, it nevertheless clearly added that it did not agree with the CPE’s interpretation of the number of childcare staff that were needed to care for the children in its facility. Thus, despite the fact that the educators could not leave the facility during their breaks, the court noted that by ordering the educators to split their time between two rooms, the CPE was disregarding the ratios provided for in the Act. Thus, the court's view was evidently that the ratios set out in section 21 of the Act would apply to each group of children, and could not be calculated as a whole, across the entire facility. The auto-pause concept In light of the specific facts submitted as evidence, the court found that the very concept of auto-pause is inappropriate. While some might therefore be tempted to conclude that all auto-pauses should be abolished, or that they are necessarily illegal, it should be remembered that each situation must be analyzed separately, based on its specific circumstances. Thus, a permit holder may still be able to show that they are in compliance with their obligation of constant supervision, for example, through a combination of adequate premises, resources, work instructions and protocols. This being said, the fact that the court has raised doubts about the very concept of the auto-pause will necessarily lead permit holders to question the organization of their work. In a context in which the court relies, inter alia, on its own calculation of the ratios applicable to the group of children, it could be even more complex for permit holders to determine the scope of their obligations. The same thing can be said for the manner in which they will be able to meet their obligations taking into account their mission, budget, human and material resources, individual or collective work agreements, and the specific needs of the children in their care. Conclusion The decision rendered by the Court of Québec on January 15, 2020 sheds light on the notion of constant supervision in the context of the provision of childcare services. Thus, to ensure that they are in compliance with their obligations and avoid penal or administrative penalties, it may be appropriate for childcare providers to review the organization of their work. A notice of appeal of this decision was filed on February 14, 2020 by the CPE. We will keep you informed of further developments. Should you wish to obtain further information on this topic, or discuss possible solutions for your own situation, please do not hesitate to contact our team of professionals. Directeur des poursuites criminelles et pénales c. Centre de la petite enfance Soulanges (CPE Soulanges), C.Q. Beauharnois, 760-61-124110-199, January 15, 2020 (hereinafter DPCP c. CPE Soulanges). CQLR, c. S-4.1.1, r. 2. CQLR, c. S-4.1.1. DPCP c. CPE Soulanges, para. 42. Idem, para. 45.
- Québec, 2004
Ms. Myriam Lavallée focuses her practice on labour and employment law, administrative law, and human rights. She advises and represents companies in various sectors with respect to individual and collective labour relations. She also acts as a spokesperson for employers in the negotiation of collective agreements.
Ms. Lavallée has specific expertise in the field of childcare services and is frequently called upon to advise and represent childcare and day care centres and home childcare coordinating offices throughout Quebec before the courts.
Her recognized skills as a manager have led her to sit on the boards of directors of numerous organizations. She is currently the chair of the board of directors of FestiVoix de Trois-Rivières. Previously, she sat on the board of directors, among others, of the Chambre de commerce et d’industries de Trois-Rivières, Femmessor Mauricie, the Jeune Barreau de la Mauricie, Les Petits Collégiens childcare centre, and the Jeune chambre de commerce de la Mauricie, for which she was chair of the board of directors in 2009 and 2010. She also acts as an ambassador for, and is a member of the regional committee of, La Ruche Mauricie.
In 2009, Ms. Lavallée was awarded the Prix d’Excellence of the Réseau de recherche en santé et en sécurité du travail du Québec in recognition of a speech she delivered at a conference.
In the eight years before she joined Lavery, Ms. Lavallée worked for another national law firm. Prior to that, she worked for the Ministère de la Justice, more specifically for the Justices of the Superior Court of Quebec. She also coordinated the republication of a treaty for a legal publisher.
- Represent and act as counsel to many businesses with respect to labour and employment law matters
- Acts as a spokesperson for employers in the negotiation of collective agreements
- Advise and represent various home childcare coordinating offices in connection with childcare management matters and proceedings initiated by the administrators of a home childcare centre before the Tribunal administratif du Québec
- Represent childcare centres and home childcare coordinating offices in connection with obstruction complaints and applications for orders
- Advise and represent businesses regarding the application and the decree of the Loi sur les décrets de convention collective
- Represent companies before the Tribunal administratif du travail
- Co-author a memorandum on the Act to tighten the regulation of educational childcare (November 2010)
- “Constant supervision: how does the recent court decision impact CPEs, daycare centres and home childcare providers?”, article published in a legal information bulletin for child care managers, February 2020 edition (in collaboration with Guillaume Laberge)
- Hiring an employee versus a self-employed worker: advantages, disadvantages and pitfalls to avoid, article published on www.laverygoinc.ca.
- First-aid course required by the Ministère de la Famille: is the employer required to pay for the training time, article published in a legal information newsletter for operators of childcare and day care centres, January 2017.
- Myriam Lavallée, “Modification éventuelle au Règlement sur les services de garde éducatifs à l’enfance”, article published in a legal newsletter for operators of child care centres, November 2015.
- Myriam Lavallée (in collaboration) and Véronique Savoie, “The importance of good communication with one’s insurer: a childcare center is sued”, article published in a legal information newsletter for operators of childcare and day care centres, September 2015
- Myriam Lavallée, “Verifying impediments”, article published in a legal information newsletter for operators of childcare and day care centres, March 2015
- COVID-19: mesures temporaires ou permanentes pour les employeurs et les employés?, webinar presented at the Chambre de commerce et d’industrie de Shawinigan, July 14, 2020
- COVID-19 : Enjeux de droit du travail, webinar presented at the Chambre de commerce et d’industrie du Cœur-du-Québec, May 14, 2020
- COVID-19 : Enjeux de droit du travail, webinar presented in collaboration with the Formation continue et services aux entreprises du Cégep de Trois-Rivières, May 6, 2020
- COVID-19 : Droits et devoirs des manufacturiers - Enjeux commerciaux et de droit du travail, with Me Yves Rocheleau, webinar presented to the Manufacturiers de la Mauricie et du Centre-du-Québec (MMCQ), March 19, 2020
- Prévention de la violence et du harcèlement au travail, training given to senior managers and employees, March 10 and 11, 2020
- Les comportements des employés à l’extérieur du travail, training given to elected officials and senior managers, December 5, 2019
- Enjeux juridiques de ressources humaines lors d’un transfert d’entreprise, conference presented at theChambre de commerce et d’industrie du Cœur-du-Québec, May 7, 2019
- Key principles of a winning negotiation, conference presented to elected officials and senior executives, October 30, 2019
- Éléments à analyser dans le cadre d’une vérification diligente – travail et emploi, presentation given to the Club M&A Trois-Rivières, September 6, 2018
- Myriam Lavallée and Marie-Josée Hétu, “La surveillance et la filature des travailleurs absents : les bonnes pratiques et les pièges à éviter” talk before the Grand Symposium en droit du travail et de l’emploi de Drummondville, June 12, 2018
- Myriam Lavallée and Marie-Josée Hétu, “Les incontournables de la dernière année en droit du travail et de l’emploi” talk before the Grand Symposium en droit du travail et de l’emploi de Trois-Rivières, May 17, 2018
- “La plaidoirie”, customized training delivered to Université de Sherbrooke, March 1, 2018 and December 8, 2017
- “Le contre-interrogatoire”, customized training delivered at the Université de Sherbrooke, February 26, 2018 and September 28, 2017
- “L’interrogatoire en chef”, customized training delivered at the Université de Sherbrooke, February 22, 2018,November 14, 2016 and October 28, 2016
- “Les décisions marquantes”, talk delivered at the Université de Sherbrooke, February 15, 2018
- “La production de pièces”, customized training delivered at the Université de Sherbrooke, February 6, 2018
- “La préparation d’un témoin”, customized training delivered at the Université de Sherbrooke, October 12, 2017
- Collective bargaining: Is there a winning formula?" with Jean Boulet, seminar presented as part of the annual Major Symposium on Labour and Employment Law, June 13, 2017
- “Preparing a defence for an arbitration tribunal,” customized training delivered in French for Université de Sherbrooke, February 10 and March 1 and 2, 2016
- Myriam Lavallée, “L’exercice du droit de gérance et la gestion des dossiers disciplinaires et administratifs”, talk delivered to members of the Corporation des concessionnaires d’automobiles de la Mauricie, March 23, 2016.
- Myriam Lavallée, “Conduite et comportements à l’extérieur du travail: vie privée ou domaine de l’employeur”, talk delivered to the Regroupement des garderies privées du Québec, October 17, 2015.
- Myriam Lavallée and Marie-Josée Hétu, “Développements récents en droit du travail et de l’emploi, ainsi qu’en santé et sécurité du travail”, talk before the Réseau RH de Drummondville, May 6, 2015
- Myriam Lavallée, “Le devoir d’accommodement de l’employeur en 2015: Jusqu’où faut-il aller?” talk before the Colloque annuel en droit du travail, May 5, 2015
- Myriam Lavallée and Jean Boulet, “Droit du travail québécois – Développements récents”, talk given in connection with the Barreau du Québec’s Mandatory continuing education program, May 22, 2013
- Myriam Lavallée, “Les politiques d’entreprises : Portée et limites”, talk given at the annual Labour, Employment and Human Rights Law Conference, April 18, 2013
- Myriam Lavallée and Jean Boulet, “Droit du travail québécois – Développements récents”, talk given in connection with the continuing education program of the Ordre des conseillers en ressources humaines agréés, April 16, 2013
- Myriam Lavallée and Jean Boulet, “Arbitrage de griefs: Développements récents 2011 - 2012”, talk given in connection with the Barreau du Québec’s Mandatory continuing education program, February 20, 2013
- Myriam Lavallée, “La protection des renseignements personnels”, talk given to the members of the Corporation des concessionnaires d’automobiles de la Mauricie, May 29, 2012
- Myriam Lavallée, “Préparation d’un dossier pour le Tribunal administratif du Québec”, training session given to managers of home childcare coordinating offices, February 22, 2012
- Myriam Lavallée, “Droits de la personne en milieu de travail: Où en sommes-nous?”, talk given as part of the annual Labour, Employment and Human Rights Law Conference, February 16, 2012
- The Canadian Legal LEXPERT® Directory in the field of Labour and Employment Law, 2022
- The Best Lawyers in Canada in the field of Labour and Employment Law, 2022
- Leadership and management skills Certificate, Institut de leadership and Concordia University, 2020
- LL.B., Université de Sherbrooke, 2003
Boards and Professional Affiliations
- Chambre de commerce et d'industries de Trois-Rivières
- Jeune chambre de commerce de la Mauricie
- Ordre des conseillers en ressources humaines agréés du Québec
On June 16th of this year, Mr. Sébastien Proulx, Minister of Education, Recreation and Sports and Minister of Families, presented Bill 143 1 to improve the educational quality and foster the harmonious development of educational childcare services (the “Bill”). The Bill proposes amendments to the Educational Childcare Act2 (the “Act”) and the Educational Childcare Regulation.3 The main thrust of the Bill’s intervention is aimed at ensuring the health and safety of children, providing parents with childcare services of comparable diversity and quality throughout Québec and fostering the harmonious development of childcare services. Health and safety of children First, the Bill reinforces the obligations of all childcare providers by specifically incorporating a new section into the Act which makes such providers responsible for ensuring the health, safety and well-being of children.4 A non-exhaustive list of prohibited behaviour is also included. As a result, childcare providers cannot, among other things, apply degrading or abusive measures, use exaggerated punishment, denigration or threats, or employ abusive or disparaging language that could humiliate or frighten a child or undermine the child’s dignity or self-esteem.5 In the event of a violation of this provision, daycare or childcare centre permit holders and home childcare providers risk the suspension, revocation or non-renewal of their permits or their recognitions.6 They will, by the same token, be liable to a fine ranging from $5,000 to $75,000.7 Moreover, the Bill reduces the number of children that a natural person without a permit or recognition can have in his or her care. Therefore, a person will not be permitted to offer or provide childcare services in return for parental contribution if that person does not hold a childcare or daycare centre permit or has not been recognized as a home childcare provider, unless the person in question: Is a natural person; Is self-employed; Provides childcare in a private residence where such childcare is not already being provided; and Welcomes up to four children, of whom not more than two are under the age of 18 months, including the person’s own children under nine years of age and any other children under nine who ordinarily live with the person and are present while the childcare is provided.8 A person who violates this requirement is guilty of a penal offence and is liable to a fine of $1,000 to $10,000.9 Quality and diversity of childcare services Subsequent to the coming into force of the Bill, childcare providers will be subject to the obligation to promote the educational success of children, in particular to facilitate their transition into the school system. This aspect must be added to the educational program applied by childcare providers.10 Additionally, and once again with the goal of improving the quality of childcare services, childcare providers shall be required to participate, at the Minister’s request, in a process to assess and improve the educational quality of the childcare provided by them, which process may include the provision of documents or information as well as the completion of quality assessment questionnaires.11 Failure to comply with this process may result in an administrative penalty of $500 for each day of lack of compliance.12 Childcare services development In order to foster the harmonious development of childcare services, the Bill imposes several other obligations on childcare providers and home childcare coordinating offices. The Bill requires all childcare providers to register with the singlecontact access to childcare services designated by the Minister. As a result, childcare providers will be required to use only the waiting list generated by the single-contact access to childcare services to fill any vacant childcare service spots.13 Childcare providers who do not register within the prescribed time limits,14 will expose themselves to an administrative penalty of $500 for each day of lack of compliance15 and to a fine ranging between $500 to $5,000.16 Furthermore, daycare centre permit holders who wish to increase the maximum number of children indicated on their permit shall be required to obtain the Minister’s prior written authorization.17 The same will be true for daycare or childcare centre permit holders who wish to permanently relocate their facilities to offer childcare services in another area.18 Non-compliance with these requirements may result in an administrative penalty of $250 for each day of non-compliance.19 The Bill also adds the obligation for childcare providers and home childcare coordinating offices to send additional information to the Minister.20 In the event of non-compliance, these entities may be subject to an administrative penalty of $500 for each day of noncompliance21 and will be liable to a fine ranging between $500 to $5,000.22 In order to promote the harmonious development of educational childcare services, the Bill also sets forth the factors to be considered by the Minister when evaluating the needs and priorities in this regard,23 and establishes a new advisory committee. The committee will henceforth be composed of seven members. In addition to current members there will also be one member designated by the body most representative of the daycare centres of the territory in question and which do not provide subsidized childcare and one member designated by the body most representative of the home childcare coordinating offices of the territory in question.24 Members shall be designated for a renewable three-year term and no member may be prosecuted for acts performed in good faith in the course of his or her committee functions.25 Finally, the requirements for the issuance of non-subsidized daycare centre permits shall be reinforced by new conditions26 and all permit applicants will henceforth be required to provide additional information with their written applications to the Minister.27 As of the date of publication of this newsletter, the Bill was still under review. It is not until the Bill is passed that we can be certain of its content. However, the date on which the Bill will come into force remains unknown. We will keep you informed of further developments. Bill 143, An Act to improve the educational quality and foster the harmonious development of educational childcare services, 1st Session, 41st Legislature, Quebec, 2017. Educational Childcare Act, CQLR, c. S-4.1.1. Educational Childcare Regulation, RLRQ, c. S-4.1.1, r.2. Bill 143, op. cit. s. 3. Id. Bill 143, op. cit. s. 10 and Bill 143, op. cit. s. 23. Ibid, s. 19. Ibid, s. 4 and 5. Educational Childcare Act, op. cit. s. 108.1. Ibid, s. 1 and 2. Ibid, s. 3. Ibid, s. 16 and Educational Childcare Act, op. cit.. s. 101.3 and 101.5. Bill 143, op. cit. s. 11. The deadline has yet to be specified, but depending on the circumstances, it can be no later than May 31, 2018 or April 1, 2019. See Bill, s. 27 and 28. Bill 143, op. cit. s. 16 and Educational Childcare Act, op. cit. s. 101.3 and 101.5. Bill 143, op. cit. s. 20 and Educational Childcare Act, op. cit. s. 116. Bill 143, op. cit. s. 8. Id. Bill 143, op. cit. s. 22 and Educational Childcare Act, op. cit. s. 16.1 and 123.1. Bill 143, op. cit. s. 17. Bill 143, op. cit. s. 16 and Educational Childcare Act, op. cit. s. 101.3 and 101.5. Bill 143, op. cit. s. 19. Bill 143, op. cit. s. 7. Ibid, s. 18. Id. Ibid, s. 6. Ibid, s. 21.
The Educational Childcare Regulation1 (the “Regulation”) requires every permit holder to ensure that each member of its childcare staff holds a certificate not older than 3 years which must have been obtained through the successful completion of an early childhood first-aid course of a minimum of 8 hours. Following the amendment of the Regulation of April 1, 20162, an additional component concerning the management of severe allergic reactions was added to this training obligation: 20. A permit holder must ensure that each childcare staff member holds a certificate not older than 3 years attesting that the member has successfully completed a minimum 8-hour early childhood first-aid course including a component on the management of severe allergic reactions or a minimum 6-hour refresher course updating the knowledge acquired as part of the early childhood first-aid course. This obligation on permit holders is accompanied by an administrative penalty in the event of its contravention.3 Recently, in the case of Syndicat québécois des employés et employées de service, section locale 298 et CPE Les Petits Semeurs,4, the arbitrator, André Sylvestre, upheld the decision of a childcare center not to compensate staff for the training time they are required to complete under this section of the Regulation. In doing so, he also considered the scope of the obligation on childcare centers under section 57(4) of the Act respecting labour standards5 (“ALS”), which reads as follows: 57. An employee is deemed to be at work (…) (4) during any trial period or training required by the employer. Facts It was the employer’s habit to send to educators in its employ, two months before the expiry of their first-aid card, a note reminding them of the requirement in section 20 of the Regulation to attend a six-hour refresher course. In addition, the terms of the collective agreement required each member of the childcare staff to have a first-aid training certificate. Attached to the note was a list of the schools in the region that provided the training. The employer gave some educators notice that if they failed to renew their first-aid card, they would be suspended without pay until it was renewed. Collective agreement and the parties’ positions Section 27.04 of the collective agreement stated that the employer would reimburse the registration fees for the first-aid course, but not the salary for the time spent taking the course. Section 27.05 stated that [translation] when taking employer-authorized training during the day, employees are deemed to be at work, and therefore paid. In its grievance, the union contested the employer’s decision not to recognize employees as “deemed to be at work” when they were taking their first-aid course, arguing that the training was considered essential for the performance of their duties and necessary by the very nature of their employment. In this regard, it relied on section 57(4) of the ALS as well as section 27.05 of the collective agreement. The employer disagreed, claiming that section 27.05 of the collective agreement did not support the employees’ argument and that section 57(4) of the ALS did not apply. In support of his claim, the employer maintained that since the training was not required by the employer itself, but rather imposed by the ministère de la Famille, neither section supported the employees’ position. Arbitrator’s decision At the outset, the arbitrator found that the first-aid courses did not meet the criteria set out in section 27.05 of the collective agreement. He was of the view that these courses were not one-time, but periodic events since they had to be renewed every three years. He further found that the employer had not authorized these courses and that it was not necessary for it to do so as they constituted a legal obligation. The employer had only reminded the employees to renew their training before the deadline was reached. Furthermore, clause 27.04 of the collective agreement only imposed the payment of the registration fees for the first-aid course. Had the parties intended to provide for the payment of salary for the time spent taking this course, they would have done so. Then, regarding the application of section 57(4) of the ALS, the arbitrator agreed with the employer’s submission that [translation] the imposition of a professional requirement by a legislative text does not constitute training required by the employer within the meaning of this section. Thus, the arbitrator held that the claim in the grievance could not succeed because the requirement found in section 20 of the Regulation originated from the ministère de la Famille and not the employer. Indeed, the employer only sent reminder letters to its staff members. Conclusion Based on this decision, and subject to more favourable provisions in the employment contract or collective agreement, employers may be entitled to refuse to acknowledge that educators in their employ are “deemed to be at work” when they are taking a first-aid course required by the ministère de la Famille. However, this conclusion could be different if the facts show that the training is in fact a requirement of the employer, particularly if the employee is left with no choice in the matter. For instance, in the decision in Syndicat des travailleuses en CPE - région Laurentides (CSN) et CPE Le petit équipage,6 the relevant clause in the collective agreement was different, and the arbitrator, André G. Lavoie, found that the training was effectively a requirement of the employer, since it was the employer itself that registered its employees in a first-aid course and imposed a time and date for taking it. In any event, one should conduct a detailed review of the circumstances and obligations set out in the collective agreement or employment contract to determine whether or not the employer does indeed not have to compensate employees for the time spent completing training required by the ministère de la Famille. CQLR, c. S-4.1.1, r. 2. For more information on the legislative amendments made to the Regulation, please consult the newsletter “Le Droit de savoir, Modification éventuelle au règlement sur les services de garde éducatifs à l’enfance” (in French only) November 2015, by Myriam Lavallée. Supra, note 1, ss. 123.1 and 124. D.T.E. 2016T-333 (T.A.). CQLR, c. N-1.1. D.T.E. 2015T-32 (T.A.).
PROVIDERS OF EDUCATIONAL CHILDCARE SERVICES, SUCH AS CHILDCARE CENTRES AND DAYCARE CENTRES, MUST HOLD VARIOUS TYPES OF INSURANCE COVERAGE, INCLUDING PROPERTY AND LIABILITY INSURANCE. ALTHOUGH SOME MAY THINK THAT THE SIMPLE FACT OF TAKING OUT SUCH INSURANCE COVERAGE IS ENOUGH TO PROTECT THEM, YOU MUST BE AWARE THAT OTHER STEPS ARE NECESSARY TO BENEFIT FROM FULL COVERAGE. OBLIGATION TO NOTIFY A LOSS TO YOUR INSURER The law, as your insurance contract, requires you to notify your insurer of any loss or event which may trigger the application of your insurance policy: “The insured shall notify the insurer of any loss which may give rise to an indemnity, as soon as he becomes aware of it. Any interested person may give such notice.”1 Such notification must be done quickly, that is, as soon as you become aware of the loss. Any failure to do so may bring you many headaches since the insurer may refuse to indemnify or defend you in whole or in part if it has not been notified quickly enough and thereby suffers injury: “An insurer who has not been so notified, and thereby suffers injury, may set up against the insured any clause of the policy providing for forfeiture of the right to indemnity in such a case.”2 A premium increase or even a refusal to renew your insurance policy upon its expiry may follow. It is therefore important to remain vigilant and notify your insurer of anything which may possibly involve your insurance coverage. KEEPING ONE’S INSURER INFORMED OF SETTLEMENT NEGOTIATIONS The law, as your insurance contract, provides that the insurer who pays you an indemnity to compensate an economic loss benefits from an automatic legal subrogation which will allow it to sue the person responsible for the loss to recover the amount it paid to you: “The insurer is subrogated to the rights of the insured against the person responsible for the loss, up to the amount of indemnity paid. The insurer may be fully or partly released from his obligation towards the insured where, owing to any act of the insured, he cannot be so subrogated.”3 In legalese, this remedy is called “a subrogatory remedy”, which results in the indemnified insured losing any and all rights he may have against the third party responsible for the loss in respect of the amount the insured received from the insurer. It is therefore essential that you notify your insurer of any negotiation process you initiate with the opposing party, if the insurer has not yet adopted a position on coverage or paid an indemnity. Indeed, a settlement entered into with the opposing party without the consent of the insurer may have a fatal impact on the insurer’s subrogatory remedy, as was recently the case in the matter of Société d’assurances générales Northbridge v. Maruca4 (hereinafter respectively referred to as “Northbridge” and “Maruca”). In this case, defendant Maruca had worked as an administrative assistant for a childcare centre (a “CC”). She was also responsible for payroll preparation and management. Now, Maruca was using the CC credit card for purchasing items for personal use. In this way, she had embezzled several thousand dollars and had paid to herself unauthorized excess wages. The CC had notified its insurer of these events and the insurer, after analysing the file, paid to the CC an amount of $19,108 pursuant to employee dishonesty coverage. However, concurrently to this claim, and unbeknownst to the insurer, the CC instituted legal proceedings against Maruca on March 29, 2012 to claim compensation from her for the faults she had committed. These proceedings were settled in December 2013 through an agreement entitled “Receipt, release, waiver, discharge and transaction”, the relevant excerpt of which reads as follows: “In consideration of all the foregoing, and under reserve of all the terms and conditions of the present Transaction, the parties hereby renounce immediately and definitely to all claims, rights, recourses, rights of action, sums and payments that they had, have or may have now or in the future, from or against her other, and hereby give one another a mutual, reciprocal, full, final, complete, definitive, unconditional and immediate release, discharge and exoneration of and from any and all past, present and future claims, that they had, have or may have, now or in the future, directly or indirectly relating to or arising from the litigation under Quebec Court number 500-22-191245-128.” After paying the indemnity, the insurer Northbridge, unaware of the existence of this lawsuit, introduced its own lawsuit against Maruca in August 2014, claiming, as is customary, the indemnity paid, and impleaded the CC in order for it to recover its $500 deductible. Now, since the December 2013 transaction included a final release respecting any claim “directly or indirectly relating to or arising from the litigation under Quebec court number 500-22-191245-128”, the judge ruled that Northbridge, as subrogated party, could not have more rights than its insured. In the case under review, in each of the lawsuits, namely, the first lawsuit of the CC, in 2012 and that of Northbridge in 2014, amounts were claimed to compensate the harm resulting from the same faults, that is, the illegal use of the credit card of the CC and the unauthorized payment of additional wages. The allegations as to the dates on which the faults were committed and discovered were also the same in each of the two files. The judge therefore ruled that the amounts claimed in Northbridge’s file were identical or less that those claimed in the lawsuit of the CC, which had concluded in 2013. Accordingly, Northbridge’s lawsuit was dismissed. As shown by the above judgment of the Court of Québec, the failure to notify the filing of proceedings concerning the same events as those on which the claim for indemnity to the insurer and the fact that the case was settled without having informed the insurer resulted in the insurer losing its rights under legal subrogation and being unable to obtain compensation for the indemnity it paid pursuant to the insurance contract. This time, the consequences were even more serious for the CC that the simple risk of premium increase or non-renewal of the insurance policy; indeed, Northbridge, having lost its rights due to the fault of the CC, instituted proceedings against the CC, claiming the repayment of the indemnity paid as well as the costs related to the proceedings.5 CONCLUSIONIt is therefore essential to notify your insurer of the existence of any element which may give rise to a claim under your insurance coverage and of any step toward a settlement related to such event. In so doing, you will preserve your good relations with the insurer and limit your risk of legal and financial complications. Better safe than sorry! 1 Art. 2470 par. 1 of the Civil Code of Québec, RLRQ c. C 1991 (hereinafter referred to as the “CCQ”). 2 Art. 2470 par. 2 CCQ. 3 Art. 2474 par. 1 CCQ. 4 Société d’assurance générale Northbridge v. Maruca, 2014 QCCQ 10083 (C.Q.). 5 Société d’assurance générale Northbridge v. Centre de la petite enfance St-Andrew’s, no. 500-22-219992-156 (C.Q.).
Lavery is pleased to announce that 67 of its lawyers have been recognized as leaders in their respective fields of expertise by The Best Lawyers in Canada 2023. The following lawyers also received the Lawyer of the Year award in the 2023 edition of The Best Lawyers in Canada: René Branchaud : Natural Resources Law Chantal Desjardins : Intellectual Property Law Bernard Larocque : Legal Malpractice Law Patrick A. Molinari : Health Care Law Consult the complete list of Lavery's lawyers and their fields of expertise: Josianne Beaudry : Mergers and Acquisitions Law / Mining Law Laurence Bich-Carrière : Class Action Litigation / Corporate and Commercial Litigation / Product Liability Law Dominic Boivert : Insurance Law (Ones To Watch) Luc R. Borduas : Corporate Law / Mergers and Acquisitions Law Daniel Bouchard : Environmental Law Laurence Bourgeois-Hatto : Workers' Compensation Law René Branchaud : Mining Law / Natural Resources Law / Securities Law Étienne Brassard : Equipment Finance Law / Mergers and Acquisitions Law / Real Estate Law Jules Brière : Aboriginal Law / Indigenous Practice / Administrative and Public Law / Health Care Law Myriam Brixi : Class Action Litigation Benoit Brouillette : Labour and Employment Law Richard Burgos : Mergers and Acquisitions Law / Corporate Law Marie-Claude Cantin : Insurance Law / Construction Law Brittany Carson : Labour and Employment Law Eugene Czolij : Corporate and Commercial Litigation France Camille De Mers : Mergers and Acquisitions Law (Ones To Watch) Chantal Desjardins : Intellectual Property Law Jean-Sébastien Desroches : Corporate Law / Mergers and Acquisitions Law Raymond Doray : Privacy and Data Security Law / Administrative and Public Law / Defamation and Media Law Christian Dumoulin : Mergers and Acquisitions Law Alain Y. Dussault : Intellectual Property Law Isabelle Duval : Family Law Chloé Fauchon : Municipal Law (Ones To Watch) Philippe Frère : Administrative and Public Law Simon Gagné : Labour and Employment Law Nicolas Gagnon : Construction Law Richard Gaudreault : Labour and Employment Law Danielle Gauthier : Labour and Employment Law Julie Gauvreau : Intellectual Property Law Michel Gélinas : Labour and Employment Law Caroline Harnois : Family Law / Family Law Mediation / Trusts and Estates Marie-Josée Hétu : Labour and Employment Law Alain Heyne : Banking and Finance Law Édith Jacques : Energy Law / Corporate Law Pierre Marc Johnson, Ad. E. : International Arbitration Marie-Hélène Jolicoeur : Labour and Employment Law Isabelle Jomphe : Intellectual Property Law Guillaume Laberge : Administrative and Public Law Jonathan Lacoste-Jobin : Insurance Law Awatif Lakhdar : Family Law Bernard Larocque : Professional Malpractice Law / Class Action Litigation / Insurance Law / Legal Malpractice Law Myriam Lavallée : Labour and Employment Law Guy Lavoie : Labour and Employment Law / Workers' Compensation Law Jean Legault : Banking and Finance Law / Insolvency and Financial Restructuring Law Carl Lessard : Workers' Compensation Law / Labour and Employment Law Josiane L'Heureux : Labour and Employment Law Despina Mandilaras : Construction Law / Corporate and Commercial Litigation (Ones To Watch) Hugh Mansfield : Intellectual Property Law Zeïneb Mellouli : Labour and Employment Law Patrick A. Molinari : Health Care Law André Paquette : Mergers and Acquisitions Law Luc Pariseau : Tax Law Ariane Pasquier : Labour and Employment Law Jacques Paul-Hus : Mergers and Acquisitions Law Hubert Pepin : Labour and Employment Law Martin Pichette : Insurance Law / Professional Malpractice Law Élisabeth Pinard : Family Law François Renaud : Banking and Finance Law / Structured Finance Law Judith Rochette : Insurance Law / Professional Malpractice Law Ian Rose FCIArb : Director and Officer Liability Practice / Insurance Law Chantal Saint-Onge : Corporate and Commercial Litigation (Ones To Watch) Éric Thibaudeau : Workers' Compensation Law André Vautour : Corporate Governance Practice / Corporate Law / Information Technology Law / Intellectual Property Law / Technology Law Bruno Verdon : Corporate and Commercial Litigation Sébastien Vézina : Mergers and Acquisitions Law Yanick Vlasak : Corporate and Commercial Litigation Jonathan Warin : Insolvency and Financial Restructuring Law These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals.
Lavery is pleased to announce that 68 of its lawyers have been recognized as leaders in their respective fields of expertise by The Best Lawyers in Canada 2022. Lawyer of the Year The following lawyers also received the Lawyer of the Year award in the 2022 edition of The Best Lawyers in Canada: Caroline Harnois: Family Law Mediation Bernard Larocque: Professional Malpractice Law Consult the complete list of Lavery's lawyers and their fields of expertise: Josianne Beaudry : Mining Law / Mergers and Acquisitions Law Dominique Bélisle : Energy Law Laurence Bich-Carrière : Class Action Litigation René Branchaud : Mining Law / Natural Resources Law / Securities Law Étienne Brassard : Mergers and Acquisitions Law / Real Estate Law / Equipment Finance Law Dominic Boisvert: Insurance Law (Ones To Watch) Luc R. Borduas : Corporate Law Daniel Bouchard : Environmental Law Jules Brière : Administrative and Public Law / Health Care Law Myriam Brixi : Class Action Litigation Benoit Brouillette : Labour and Employment Law Richard Burgos : Corporate Law / Mergers and Acquisitions Law Marie-Claude Cantin : Construction Law / Insurance Law Charles Ceelen-Brasseur : Corporate Law (Ones To Watch) Eugène Czolij : Corporate and Commercial Litigation / Insolvency and Financial Restructuring Law Chantal Desjardins : Intellectual Property Law Jean-Sébastien Desroches : Corporate Law / Mergers and Acquisitions Law Michel Desrosiers : Labour and Employment Law Raymond Doray, Ad. E : Administrative and Public Law / Defamation and Media Law / Privacy and Data Security Law Christian Dumoulin : Mergers and Acquisitions Law Alain Y. Dussault : Intellectual Property Law Isabelle Duval : Family Law Chloé Fauchon: Municipal Law (Ones To Watch) Philippe Frère : Administrative and Public Law Simon Gagné : Labour and Employment Law Nicolas Gagnon : Construction Law Richard Gaudreault : Labour and Employment Law Danielle Gauthier : Labour and Employment Law Julie Gauvreau : Intellectual Property Law Michel Gélinas : Labour and Employment Law Caroline Harnois : Family Law / Family Law Mediation / Trusts and Estates Marie-Josée Hétu : Labour and Employment Law Alain Heyne : Banking and Finance Law Édith Jacques : Corporate Law / Energy Law Pierre Marc Johnson, Ad. E., G.O.Q., MSRC : International Arbitration Marie-Hélène Jolicoeur : Labour and Employment Law Isabelle Jomphe : Intellectual Property Law Guillaume Laberge: Administrative and Public Law Jonathan Lacoste-Jobin: Insurance Law Awatif Lakhdar: Family Law Bernard Larocque: Class Action Litigation / Insurance Law / Professional Malpractice Law Myriam Lavallée: Labour and Employment Law Guy Lavoie: Labour and Employment Law / Workers’ Compensation Law Jean Legault: Banking and Finance Law / Insolvency and Financial Restructuring Law Carl Lessard: Labour and Employment Law / Workers' Compensation Law Josiane L'Heureux: Labour and Employment Law Hugh Mansfield : Intellectual Property Law Zeïneb Mellouli : Labour and Employment Law Patrick A. Molinari, Ad.E., MSRC : Health Care Law André Paquette: Mergers and Acquisitions Law Luc Pariseau : Tax Law Jacques Paul-Hus : Mergers & Acquisitions Law Ariane Pasquier : Labour and Employment Law Hubert Pepin : Labour and Employment Law Martin Pichette : Insurance Law / Professional Malpractice Law Élisabeth Pinard : Family Law François Renaud : Banking and Finance Law Marc Rochefort : Securities Law Judith Rochette : Professional Malpractice Law Ian Rose : Director and Officer Liability Practice / Insurance Law Éric Thibaudeau: Workers' Compensation Law Philippe Tremblay : Construction Law / Corporate and Commercial Litigation Jean-Philippe Turgeon : Franchise Law André Vautour : Corporate Law / Energy Law / Information Technology Law / Intellectual Property Law / Private Funds Law / Technology Law Bruno Verdon : Corporate and Commercial Litigation Sébastien Vézina : Mergers and Acquisitions Law Yanick Vlasak : Corporate and Commercial Litigation Jonathan Warin : Insolvency and Financial Restructuring Law
Lavery is pleased to announce that Audrey Gibeaut, Justin Gravel, Myriam Lavallée, Marilyn Paré and Virginie Simard have been appointed Partners of the firm. Audrey Gibeault is a member of the firm’s Business Law group and practices tax law. From family-owned businesses to multinationals, she provides companies with advice in connection with reorganizations, corporate acquisitions and sales, but also in regards to developing several private investment funds, including the legal structures to be put in place in order to welcome investors to Canada who are residents and non-residents alike. Justin Gravel is part of the firm’s Litigation and Conflict Resolution group and he practices primarily in the bankruptcy and insolvency, bank law and construction law sectors. He is frequently called on to represent bankruptcy trustees, financial institutions and various construction sector stakeholders before all of the province’s law courts. Myriam Lavallée focuses her practice on labour and employment law, administrative law as well as human rights law. She advises and represents numerous companies in a variety of sectors in connection with individual working relations and collective labour relations. She has specific expertise in the childcare services sector. Marilyn Paré is a member of Lavery’s Business Law group and practices in the areas of transactional law, commercial law, financing as well as corporate reorganizations. She frequently advises companies in drafting and negotiating numerous types of commercial or corporate agreements, such as sales agreements and shareholder agreements. Virginie Simard works with Lavery’s Litigation and Conflict Resolution group. Virginie focuses her practice primarily in the areas of hospital liability, civil and professional liability, director and officer liability, as well as insurance law. Virginie represents insurers, hospital centres, clinics and youth centres before civil courts, in arbitration matters, as well as in connection with coroners’ inquests.
The Trois-Rivières edition of Lavery’s Major Symposium on Labour and Employment Law was held on June 13 at the Hôtel Gouverneur. Participants attended various workshops facilitated by Jean Boulet, Nicolas Courcy, Myriam Lavallée and Carl Lessard. The speakers discussed a variety of subjects, including best practices when hiring and terminating an employment, managing employees with difficult behaviour or in psychological distress, and renegotiating collective agreements.