Your guests have arrived and it’s time to give the toast! Are you ready to celebrate? December is undoubtedly the most festive month of the year. It’s a great opportunity for employers to thank their employees for the services rendered during the year, but also for employees to interact with their colleagues in a relaxed atmosphere. With the parties just around the corner, it’s a good time to remind employers that maintaining the health, safety and dignity of all participants is crucial when organizing such events. Even in these happy times, the employer’s obligation to ensure the health and safety of employees extends beyond normal work hours and outside the regular work premises. Here are some tips to help you celebrate in a happy, respectful and safe atmosphere for all. Moderation is always in good taste First, preventing undesirable situations begins with controlling the consumption of alcohol and other substances that can cause impairment. As psychoactive products that directly and quickly affect brain function, excessive alcohol or cannabis consumption is certainly the main factor that can lead to misdemeanour during holiday parties. When employees participate in employer-sponsored activities, they attend as part of their job: they thus have the same status that they do when at work within the company1. Consequently, employers retain their management and leadership powers during social events. Thus, they can sanction any misconduct committed during a social event. In order to limit alcohol consumption and reduce the risk of incidents, employers may, in particular: Distribute a limited number of alcohol vouchers; Stop serving alcohol a few hours before the event ends; Limit the open bar formula, if you have one, to a predetermined schedule. As for the use of cannabis and cigarettes, including e-cigarettes, it’s worth remembering that your guests must respect the smoking ban in or near the premises. Harassment prevention Though the movement concerning harassment has prompted employers to increase their efforts to prevent sexual misconduct in the workplace, the Act respecting labour standards already obliged employers, since 2002, to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it2. Employers are not exempt from this obligation when they invite employees to a social event. A safe trip back home At the party’s end, employers should make sure their employees get home safely by providing ways to travel other than getting behind the wheel, including: Providing taxi vouchers to prevent road accidents caused by impaired driving; Reimbursing employee travel expenses; Encouraging employees to contact organizations offering driver services. Company holiday parties have become a must. Beyond employer obligations and responsibilities, such festivities are a great opportunity for employees to forge ties with their colleagues outside the more rigid work environment and for employers to show their appreciation and thank their employees. Happy festivities to all! Association internationale des machinistes et des travailleuses et travailleurs de l'aérospatiale, district 140, section locale 2309 et Servisair (Avo Minassian), D.T.E. 2009T-448; Nettoyage de drains A. Ducharme (2000) inc. et Syndicat national des travailleuses et travailleurs de l’environnement (F.E.E.S.P.-C.S.N.), D.T.E. 2001T-1030. Sec. 81.19 A.L.S.
Bernard Trang Lawyer
- Québec, 2019
Bernard Trang is a member of the Business Law group. He focuses his practice primarily in private financing, financial services and general banking law.
In the context of his practice, Bernard advises banks, financial institutions and private companies on matters involving the granting of credit facilities and security relating thereto. Clients rely on his expertise for private debt or equity financing, project financing, equipment lease financing and acquisition financing.
His understanding of legal and business issues enables him to provide his clients with practical advice focused on solutions and the achivement of their objectives.
Bernard completed his law degree at Université de Montréal. After winning the Juripop Moot Court Competition in 2014, he has acted as a mentor to subsequent participants of such competition. Upon completing his studies, Bernard took part in a research seminar in business law at the Université de Montréal, whereby he has closely studied the social responsibility of Canadian companies.
- Financing and acquisition by Cultures Gen V Inc. of Les Serres Royales Gen V Inc. as Quebec's largest diversified greenhouse producer;
- Financing and acquisition of the Molson Brewery site located on Notre-Dame Street, in Montréal, which was recognized as Quebec's Transaction of the Year by the M&A Club in 2020;
- Establishment of a consortium for the construction, development and ownership of Espace Montmorency, the largest mixed-use real estate project in Laval;
- Financing by Caisse Desjardins du Nord de Lanaudière, Ressources Québec and Investissement Québec of the construction of a wood pellet plant producing wood pellets from forest biomass;
- Financing by National Bank of Canada of Flinks Technology Inc.
Professional and community activities
- Mentor, Juripop Court Competition
- Volunteer, Pro Bono Students Canada
- Ones to Watch, The Best Lawyers in Canada in the field of Banking and Finance Law and Project Finance Law, 2024
- LL.B., Université de Montréal, 2017
In the context of the case of Wilson c. Alharayeri1 (“Wilson”), issued on July 13, 2017, the highest court of the land confirmed the decision of the Court of Appeal of Québec which ordered a corporate director personally to pay an amount of $648,310 to a shareholder following an abuse he committed in respect of this shareholder. Nearly two decades after the case of Budd c. Gentra2 (“Budd”) in the Court of Appeal of Ontario, the Supreme Court of Canada seized the opportunity to reaffirm this judgment and clarify the circumstances in which the oppression remedy under the Canada Business Corporations Act3 (“CBCA”) may validly be exercised against a director rather than the corporation. The test developed in Budd and adopted by the Supreme Court in Wilson to find a director extra contractually liable is less restrictive than that of the Civil Code of Québec (“CCQ”), which facilitates finding a director personally liable by using the remedy under the CBCA. Furthermore, although the Wilson case had been adjudicated on the basis of the federal CBCA, one may wonder about the possibility of using it in support of an application for remedy in case of abuse of power or unfairness under section 450 of the Business Corporations Act4 (Québec) (“BCAQ”). Background From 2005 to 2007, Mr. Ramzi Mahmoud Alharayeri (“Alharayeri”) was the President and Chief Executive Officer of Wi2Wi Corporation (“Wi2Wi”). Alharayeri was also a significant shareholder of Wi2Wi, holding common shares and class A and B preferred shares. On this subject, Alharayeri was the sole holder of A and B preferred shares, which were convertible into common shares subject to the corporation meeting some of its financial targets in 2006 and 2007, respectively. Wi2Wi had also issued class C preferred shares, many of which were ultimately held byMr. Andrus Wilson (“Wilson”). In March 2007, as negotiations pertaining to the merger of Wi2Wi and Mitec Telecom Inc. (“Mitec”) had been undertaken as a result of Wi2Wi having cash flow issues, Alharayeri simultaneously entered into a share purchase agreement with Mitec, without the knowledge of Wi2Wi, on whose board he sat. Once the board of directors was informed of Alharayeri’s manoeuvre, he resigned and Wilson took control of the corporation’s management. Over the following months, Wi2Wi’s financial woes continued. As a result, the corporation offered to the holders of its common shares secured notes which could be converted into common shares in the context of a private placement. This decision resulted in, among other things, reducing the percentage of common shares held by the shareholders who did not participate in the private placement. Moreover, for the purpose of enabling Wilson to participate, the corporation had previously accelerated the conversion of Wilson’s class C preferred shares into common shares, despite the fact that doubts remained as to the validity of this conversion from a legal point of view. However, no class A and B shares, which were solely held by Alharayeri, was converted into common shares, despite the fact that they could be in the light of the financial tests established in the constating documents of the corporation. Wilson was maintaining that converting Alharayeri’s shares would not be appropriate in light of his conduct. Alharayeri has therefore been prevented from participating in the private placement and the value of his preferred shares, as well as the percentage of the common shares he held, was materially reduced. In view of the situation, Alharayeri instituted an oppression remedy under section 241 CBCA against four directors of Wi2Wi, including Wilson.. The oppression remedy under the Canada Business Corporations Act The oppression remedy under section 241(3) CBCA is an equity remedy which allows the Court to make any interim or final order against a corporation or director to remedy a situation of abuse. The Budd judgment, issued in 1998 by the Court of Appeal of Ontario, established the essential guidelines for analyzing the liability of directors in the context of an oppression remedy by establishing a two pronged approach to directors’ personal liability. Since the Budd case has not been uniformly applied throughout Canada, the Supreme Court seized the opportunity to finally clarify the guidelines applicable in determining the personal liability of directors under the CBCA. Firstly, the oppressive conduct must be attributable to the director because of his or her action or inaction, particularly in respect of the powers conferred on him or her. Secondly, the application for remedy must in itself be a fair way of dealing with the situation and must be relevant in the light of the facts in dispute. In this respect, the Supreme Court notes that the relevance of imposing personal liability on a director must be assessed in the light of four general principles, which may be summarized as follows: The oppression remedy must in itself be a fair way of dealing with the situation. For instance, finding a director liable will tend to be fair when the director derives a personal benefit from the abuse, particularly an economic benefit or increased control over the corporation. To this effect, it is important to note that the existence of a personal benefit is only an indicator pointing towards a director’s liability, it is not a mandatory criterion. Being of a remedial nature, the order must not exceed what is necessary to rectify the situation of injustice or inequity between the parties. The order may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stakeholders. Director liability cannot be a surrogate for other forms of statutory or common law relief. The courts must therefore consider the general context of corporate law in the context of the oppression remedy. In the light of the facts in dispute and the test developed in the Budd case, the Supreme Court has concluded that Wilson had had a lead role in the decision of the board of director of Wi2Wi not to convert Alharayeri’s preferred shares into common shares, which prevented the latter from participating in the private placement. The Court has further ruled that the oppression remedy constituted an equitable manner to remedy the situation of abuse and was relevant in the light of the circumstances of the case. In fact, the abuse provided Wilson with a personal benefit, that is, increased control of the corporation to the detriment of Alharayeri. The order for a payment in the amount of $648,310 to Alharayeri thus constituted an equitable remedy for the abuse since it represented what Alharayeri would have obtained if his preferred shares had been validly converted into common shares. The reasonable expectations of Alharayeri have been respected. The applicability of the Wilson case to the rectification remedy under the Business Corporations Act (Québec) Following the Wilson case, one may wonder about the possibility of relying on its principles in support of a rectification remedy under the BCAQ. First, it must be noted that the wording of section 450 BCAQ is nearly identical to that of section 241 CBCA, which, according to author Paul Martel5, results in the case law dealing with the CBCA being applicable to remedies under the BCAQ. The Superior Court of Québec has already explained that “the courts may draw from the case law developed concerning similar remedies under the CBCA”6 to analyze the remedies under the BCAQ. Accordingly, it is reasonable to believe that the Wilson case may at least guide the reasoning of the judges in implementing the remedy under provincial law. However, some distinctions between the remedies will have to be taken into consideration by the courts when analyzing the rectification remedy under the BCAQ: The CBCA provides for three situations which may give rise to the oppression remedy under section 241, namely, abuse, unfair prejudice and unfair omission to take into account the interests of security holders, creditors, directors or officers. However, section 450 BCAQ only provides for two situations which may give rise to the rectification remedy, namely, abuse and unfair prejudice. The equity remedy of the CBCA, which takes into account the interest of security holders, creditors, directors or officers, does not exist under the BCAQ. Under the CBCA, the order must only satisfy the reasonable expectations of security holders, creditors, directors or officers, while the remedy under section 450 CBAQ does not take into account the interests of creditors, as section 241 CBCA does. The provincial statute only takes into account the interests of security holders, directors and officers of the corporation. As a result, the relevance of imposing personal liability on a director must be assessed without regard for the interests of the creditors. The provincial rectification remedy only exists since February 14, 2011, the date on which the BCAQ came into force, and few decisions dealing with section 450 BCAQ have been rendered by the courts. It will therefore be interesting to note to what extent the Wilson case will be applied in the context of a rectification remedy in case of abuse of power or inequity. Considering the application of the BCE Inc. v. 1976 Debentureholders7 (“BCE”) case in support of many rectification remedies under provincial law8 it is reasonable to believe that the Wilson case will also be relied upon by Québec practitioners in the context of such proceedings, especially in view of the fact that BCE had also been judged on the basis of the CBCA. Comments Did the Supreme Court facilitate finding directors personally liable by establishing a test which is less restrictive than that provided for under the CCQ? In principle, under the CCQ, a director cannot be held liable for the actions and obligations of the corporation he or she administers since the corporation is separate from its members9. Without relying on the lifting of the corporate veil10, proceedings can however be directed against a director when he or she commits an extra contractual fault independent from the corporation’s obligations or is an accomplice thereto. Such a remedy requires the plaintiff to establish the presence of a fault11, prejudice and causal link between the two last elements. However, as it has been demonstrated in the case of Multiver ltée c. Wood12, the burden of proof may be heavy. In fact, a director who commits a fault in the context of his or her mandate is not necessarily found extra contractually liable13. Then, although lifting the corporate veil may be considered, case law14 has established that it is an exceptional remedy which can only be relied upon in cases where a director hides a fraud, an abuse of right or a breach of a public policy rule while standing behind the corporation. In fact, it seems that it will henceforth be easier to find corporate directors personally liable under corporate laws than under the CCQ, to the extent that a situation of oppression exists within a corporation. Lastly, the test developed in Budd and used in Wilson sets out many indicators to assess the fairness of oppression remedy, particularly the existence of a personal benefit. However, the non exhaustive nature of such indicators gives broad discretionary power to the courts for finding a director personally liable. Directors will have to be very cautious and diligent in discharging their duties as it may be easier to find them personally liable in the context of a remedy under the federal and provincial corporate statutes rather than the CCQ. Wilson c. Alharayeri, 2017 SCC 39. Budd c. Gentra Inc., 43 B.L.R. (2d) 27 (C.A. Ont.). R.S.C. (1985), ch. C-44. CQLR, c. S-31.1. Paul Martel, La société par actions au Québec, vol. 1, Les aspects juridiques, Montréal, Wilson & Lafleur, Martel Ltée, 2013, no. 31-506. Gagné Excavation ltée c. Vallières, 2015 QCCS 6223, par.a 44. Also see Groupe Renaud-Bray inc. c. Innovation FGF inc., 2014 QCCS 1683, par.a 56.  3 S.C.R..560. Particularly see Groupe Renaud-Bray inc. c. Innovation FGF inc., 2014 QCCS 1683 et Langlois c. Langlois, 2015 QCCS 4203. 309 C.C.Q. 317 C.C.Q. As, for example, a breach of the duty of care and diligence in general or of the duty of honesty and loyalty to the corporation (article 322 C.C.Q.). Multiver ltée c. Wood, 2015 QCCS 2847. Ibid, para. 73. Particularly see Avi Financial Corporation (1985) inc. c. Pyravision Teleconnection Canada inc., 1998 CanLII 11474 (QCCS), para. 58.
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 2024. The following lawyers also received the Lawyer of the Year award in the 2024 edition of The Best Lawyers in Canada: Josianne Beaudry : Mining Law Jules Brière : Administrative and Public Law Bernard Larocque : Professional Malpractice Law Carl Lessard : Workers' Compensation 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 / Contruction Law / Corporate and Commercial Litigation / Product Liability Law Dominic Boivert : Insurance Law Luc R. Borduas : Corporate Law / Mergers and Acquisitions Law Daniel Bouchard : Environmental Law Elizabeth Bourgeois : Labour and Employment Law (Ones To Watch) 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 / Commercial Leasing Law / Real Estate Law Marie-Claude Cantin : Insurance Law / Construction Law Brittany Carson : Labour and Employment Law Karl Chabot : Construction 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 Philippe Frère : Administrative and Public Law Simon Gagné : Labour and Employment Law Nicolas Gagnon : Construction Law Richard Gaudreault : Labour and Employment Law Julie Gauvreau : Intellectual Property Law / Biotechnology and Life Sciences Practice Audrey Gibeault : Trusts and Estates Caroline Harnois : Family Law / Family Law Mediation / Trusts and Estates Marie-Josée Hétu : Labour and Employment Law Édith Jacques : Energy Law / Corporate Law / Natural Resources Law Marie-Hélène Jolicoeur : Labour and Employment Law Isabelle Jomphe : Advertising and Marketing Law / 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 Éric Lavallée : Technology 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 / Workers' Compensation Law Isabelle P. Mercure : Trusts and Estates Patrick A. Molinari : Health Care Law Jessica Parent : Labour and Employment Law (Ones To Watch) Luc Pariseau : Tax Law / Trusts and Estates Ariane Pasquier : Labour and Employment Law Jacques Paul-Hus : Mergers and Acquisitions Law Audrey Pelletier : Tax Law (Ones To Watch) Hubert Pepin : Labour and Employment Law Martin Pichette : Insurance Law / Professional Malpractice Law / Corporate and Commercial Litigation 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 / Class Action Litigation Sophie Roy : Insurance Law (Ones To Watch) Chantal Saint-Onge : Corporate and Commercial Litigation (Ones To Watch) Ouassim Tadlaoui : Construction Law / Insolvency and Financial Restructuring Law Bernard Trang : Banking and Finance Law / Project Finance Law (Ones To Watch) Mylène Vallières : Mergers and Acquisitions Law / Securities Law (Ones To Watch) André Vautour : Corporate Governance Practice / Corporate Law / Information Technology Law / Intellectual Property Law / Technology Law / Energy Law Bruno Verdon : Corporate and Commercial Litigation Sébastien Vézina : Mergers and Acquisitions Law / Mining Law Yanick Vlasak : Corporate and Commercial Litigation / Insolvency and Financial Restructuring Law 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. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.
On July 4, 2023, Cultures Gen V, one of Quebec’s leading greenhouse growers, announced the acquisition of Serres Royales. The acquisition furthers Cultures Gen V’s business strategy, which aims to improve Quebec’s food self-sufficiency by expanding sustainable greenhouse growing and offering consumers a wider variety of superior quality products. This transaction makes Cultures Gen V the largest diversified greenhouse grower in Quebec, adding 9 hectares of tomatoes to its current acreage, for a total of 36 hectares. Lavery was privileged to represent Cultures Gen V in the transaction. Not only did the firm implement the group’s pre-transaction refinancing, it also negotiated and closed the transaction. The Lavery team was led by Étienne Brassard with the assistance of Gabrielle Ahélo and France Camille De Mers and the collaboration of Béatrice Bull, Pamela Cifola, Éric Gélinas, Jessica Parent, Chantal Desjardins, James Duffy, Valérie Belle-Isle, Sonia Guérin, Joseph Lauzon-Potts, Arielle Supino, Bernard Trang, Katerina Kostopoulos, Charlotte Dangoisse, David Tournier, Ana Cristina Nascimento, Joëlle Montpetit and Nadine Giguère.
On April 20, 2021, GroupAssur, a managing general agent (MGA) offering specialty insurance products across Canada, announced its merger with our client Evolution Insurance, a wholesaler specializing in the underwriting of complex liability and construction risks. The merger makes GroupAssur Canada’s largest independent managing general agent in property and casualty insurance. Evolution Insurance’s expertise will enable GroupAssur to expand its product offering into target markets across Canada. A Lavery team led by Martin Pichette and Sébastien Vézina and composed of Jean-Paul Timothée, Gabriella Settino, Isabelle Normand and Florence Fournier (transactional) and Ali El Haskouri, Bernard Trang and Ana Nascimento (financing) played a significant role in representing Evolution Insurance’s interests throughout the transaction.
On November 10, the M&A Club of Quebec announced that Étienne Brassard and his team had won the Deal of the Year award in recognition of the strategic role they played in the acquisition of the Molson property by Selection Group. In the video of the award presentation, he highlighted the exceptional work of his team, particularly Bernard Trang and Dolaine Béland as well as Helen Bougas, Vice President, Legal Affairs of Selection Group and her team. The M&A Awards, which were presented virtually this year, are intended to honour the outstanding work of mergers and acquisitions professionals in Quebec and more broadly to recognize the mergers and acquisitions industry and its contribution to the economy. For the second year consecutively, the Lavery team won one of the prestigious M&A awards, following the cross-border transaction of the year in 2019 for the sale of Camso Inc. to Michelin.