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Kickstarting Examination in View of Upcoming Changes to Canadian Patenting Practice
As we reported earlier, the Canadian government published proposed amendments to the Patent Rules in July 2021, to further streamline Canadian patent examination to pave the way for a future patent term adjustment (PTA) system in Canada as per the Canada-United States-Mexico Agreement (CUSMA), as well as to bring Canadian practice in line with the new Patent Cooperation Treaty (PCT) ST.26 sequence listing standard. The amended Patent Rules (the “new Rules”) have now been published in their final version and are substantially the same as the 2021 proposal. Since most of the new Rules will come into force on October 3, 2022, Applicants should strongly consider requesting examination by Friday, September 30, 2022, to avoid the new excess claim fee and RCE regimes, as elaborated below. Excess claim fees The new Rules will introduce government excess claim fees of $100 CAD for each claim beyond 20 claims. These fees will be payable when requesting examination and will be re-assessed upon allowance to determine if further claim fees are due when paying the final fees, based on changes in claim number during examination. A multiple-dependent claim or a claim listing alternative elements will count as a single claim for fee calculations, thus using such claim formats will not further increase such fees. Importantly, such fees will be determined based on the maximum number of claims present in the case at any time during examination, therefore the addition of claims beyond 20 during examination will incur fees that cannot later be reduced or avoided by subsequently removing claims before allowance. For example, if an application contained 15 claims when requesting examination, which were amended to 30 claims during examination and later reduced to 18 claims for allowance, excess claim fees of $1000 CAD ((30-20) x $100) would still be payable at allowance, even though the application did not contain more than 20 claims when requesting examination or at allowance. Therefore, under the new system, minimizing or avoiding claim fees shall require not only limiting the number of claims when requesting examination, but also limiting their number throughout examination. Since many applications are originally filed with numerous claims, controlling such fees shall entail amending the claims prior to or when requesting examination. It should be noted that Canadian patent law, unlike that of the United States, does not include a continuation practice. Therefore, voluntary divisional applications are generally not recommended in Canada in view of double patenting under Canadian law, and there are no terminal disclaimers or equivalent remedies to address double patenting objections in Canada. These unique aspects of Canadian patent practice may limit the subject matter that may be pursued in divisional applications and will need to be given careful consideration by Applicants when devising a strategy to reduce the number of claims in view of the new Rules. Request for Continued Examination (RCE) The new Rules will also introduce an RCE system, with the goal of putting an application in condition for allowance with no more than three Examiner’s reports. Continuing examination beyond three reports would require the filing of an RCE, which would entitle the Applicant to up to two additional Examiner’s reports, following which a further RCE would be required to continue examination, and so on. The filing of an RCE may also be used to return an allowed case to examination, allowing the filing of amendments after allowance, thus replacing the current practice of requesting withdrawal of the Notice of Allowance. The RCE fee is on the order of $816 CAD and will be adjusted slightly on an annual basis. Conditional Notice of Allowance (CNOA) The new Rules introduce a Conditional Notice of Allowance that would inform the applicant that the application would be allowable but for minor defects that must be addressed along with payment of the final fee. If the Examiner does not consider the application to be allowable following the applicant's response to the CNOA, allowance will be withdrawn, the final fee will be refunded and examination will resume. New PCT Sequence Listing Standard In view of the new PCT “ST.26” sequence listing standard, Canada has brought its sequence listing requirements in line with those of the PCT as of July 1, 2022. Since applications having a PCT filing date prior to this date may utilize the current ST.25 standard or the new ST.26 standard when entering the Canadian national phase, use of the new standard is not imminent for Canadian national phase filings, however new direct (non-PCT) filings in Canada will need to utilize the new standard as of July 1, 2022. Act now! Since the new claim fee and RCE regimes will only apply to applications in which examination is requested on or after October 3, 2022, it will be very advantageous for Applicants to request examination before this date to be “grandfathered” into the current system, allowing such cases to avoid excess claim fees and RCEs throughout examination even after the new Rules come into force. Applicants should thus strongly consider requesting examination by September 30, 2022. To help optimize prosecution strategy for a given case or for any other questions, please do not hesitate to contact a member of our patent team for guidance through the transition.
Single-Use Plastics Prohibition Regulations: Impact on Businesses
On June 20, 2022, the federal government registered regulations that, as the name implies, prohibit (or restrict, in some cases) the manufacture, import and sale of certain single-use plastics that pose a threat to the environment. The Regulations will come into force on December 20, 2022, with the exception of certain provisions taking effect in the following months.1 Manufacturing, importing and selling certain single-use plastic products made entirely or partially of plastic, such as foodservice ware, checkout bags and straws, will be soon be prohibited. This regulation is expected to affect more than 250,000 Canadian businesses that sell or provide single-use plastic products, primarily in the retail, food service, hospitality and healthcare industries. The following is a comprehensive list of items that will be prohibited: Single-use plastic ring carriers designed to hold and carry beverage containers together2; Single-use plastic stir sticks designed to stir or mix beverages or to prevent liquid from spilling from the lid of its container3; Single-use plastic foodservice ware (a) designed in the form of a clamshell container, lidded container, box, cup, plate or bowl, (b) designed to serve or transport ready-to-eat food or beverages without further preparation, and (c) made from certain materials4; Single-use plastic checkout bags designed to carry purchased goods from a business and (a) whose plastic is not a fabric, or (b) whose plastic is a fabric that will break or tear, as the case may be, (i) if it is used to carry 10 kg over a distance of 53 m 100 times; (ii) if it is washed in accordance with the washing procedures specified for a single domestic wash in the International Organization for Standardization standard ISO 6330, as amended from time to time5; Single-use plastic cutlery that is formed in the shape of a fork, knife, spoon, spork or chopstick that either (a) contains polystyrene or polyethylene, or (b) changes its physical properties after being run through an electrically operated household dishwasher 100 times6; Single-use plastic straws that either (a) contain polystyrene or polyethylene, or (b) change their physical properties after being run through an electrically operated household dishwasher 100 times7. The main exceptions Single-use flexible plastic straws Single-use flexible plastic straws, i.e. those with a corrugated section that allows the straw to bend and maintain its position at various angles,8 may be manufactured and imported9. These flexible straws may also be sold in any of the following circumstances: The sale does not take place in a commercial, industrial, or institutional setting10. This exception means that individuals can sell these flexible straws. The sale is between businesses in packages of at least 20 straws.11 The sale is made by a retail store of a package of 20 or more straws to a customer who requests it without the package being displayed in a manner that permits the customer to view the package without the help of a store employee12; The sale of straws is between a retail store and a customer, if the straw is packaged together with a beverage container and the packaging was done at a location other than the retail store13; The sale is between a care facility, such as a hospital or long-term care facility, and its patients or residents14. The export of single-use plastic items - All the manufactured single-use plastic items listed above may be manufactured, imported or sold for export15. That said, any person who manufactures or imports such items for export will be required to keep a record of certain information and documents as appropriate for each type of plastic manufactured item16. Records of the information and documents will have to be kept for at least five years in Canada17. Conclusion: an opportunity to rethink common practices In the short term, businesses will need to start thinking about how they will replace the plastic manufactured items they use. To help businesses select alternatives to single-use plastic items, the federal government has released its Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations.18 According to this document, the aim should be to reduce plastics. Businesses may begin by considering whether a single-use plastic should be replaced or no longer provided. Only products that perform essential functions should be replaced with non-plastic equivalents. Stir sticks and straws can be eliminated most of the time. Another way to reduce waste is to opt for reusable products and packaging. Businesses are invited to rethink their products and services to provide reusable options. Reusable container programs (i.e. offering customers the option of using their own reusable containers) are a reuse option that businesses may want to consider, in particular to reduce the amount of plastic food containers. Only where reusable products are not feasible should businesses substitute a single-use plastic product with a recyclable single-use alternative. Businesses in this situation are encouraged to contact local recycling facilities to ensure that they can successfully recycle products at their end of life. Ultimately, charging consumers for certain single-use substitutes (e.g. single-use wooden or moulded fibre cutlery) may also discourage their use. Ibid, s. 1 Ibid, s. 3 Ibid, s. 6 Polystyrene foam, polyvinyl chloride, plastic containing black pigment produced through the partial or incomplete combustion of hydrocarbons or oxo-degradable plastic; Ibid. This standard is entitled Textiles – Domestic washing and drying procedures for textile testing; Ibid. Ibid. Ibid, ss. 4 and 5. Ibid, s. 1. Ibid, s. 4. Ibid, para. 5(2). Ibid, para. 5(3). Ibid, para. 5(4); According to Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations, the goal is to ensure that people with disabilities who need flexible single-use plastic straws continue to have access to them at home and can carry them to restaurants and other premises. Ibid, para. 5(5). Ibid, para. 5(6). Ibid, para. 2(2). Ibid., s. 8 Ibid, para. 9(1). https://www.canada.ca/en/environment-climate-change/services/managing-reducing-waste/consultations/proposed-single-use-plastics-prohibition-regulations-consultation-document.html
Amendments to the Charter of the French Language: Impacts on the Insurance Sector
Bill 96 – An Act respecting French, the official and common language of Québec (the “Act”) - was adopted on May 12, 2022 and assented to on June 1, 2022, its effective date. Certain provisions are already in force; for other provisions, a transitional period ranging from several months to three years will apply. This document provides an overview of the modifications included in the reform of the Charter of the French Language (the “Charter”) that will have an impact on various aspects relevant to insurance sector stakeholders doing business in Québec. Forming the centrepiece of the announced changes, the reform of the Charter includes strengthened oversight mechanisms governing the use of French as the language of commerce and business, as well as linguistic rights in the areas of employment and communications with agents of the State. Overseeing the language of commerce and business The reform of Section 55 of the Charter stipulates that contracts of adhesion and related documents must be drawn up in French. However, effective June 1, 2023, a French-language version of these contracts and documents must be provided to participants First Alinea of this amended section reads as follows: 55. Contracts pre-determined by one party and the related documents, must be drawn up in French. The parties to such a contract may be bound only by its version in a language other than French if, after its French version has been remitted to the adhering party, such is their express wish. The documents related to the contract may then be drawn up exclusively in that other language.1 Therefore, contractual clauses in which the parties simply indicate that they agree to be bound by a contract drawn up in a language other than French are no longer sufficient. The Civil Code of Québec stipulates that “A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.”2 To qualify a contract, the importance of the negotiated terms and conditions and their connection with the contract must be analyzed. It is generally recognized that if the essential stipulations are not negotiable, the contract is a contract of adhesion, even though some less important terms and conditions may have been negotiated by the parties. This amendment codifies the interpretation adopted by the Office québecois de la langue française (“OQLF”) and the courts,3 particularly given that negotiated contracts were not covered by this provision. To remove any doubt concerning this interpretation, Bill 96 was amended so as not to extend the scope of this requirement to include contracts containing “printed standard clauses”. The insurance contract Since their essential stipulations are typically drawn up by the insurer, insurance contracts and their endorsements are contracts of adhesion, as a general rule. Therefore, the French-language version of all related documents — notices, letters, insurance product summaries — must be provided to clients before they can decide whether they will be bound by a version drawn up in another language. During the parliamentary debates, Minister Jolin-Barette commented that Section 55 of the Charter only referred to consumers and that contracts between two companies could be drawn up in the language of their choice if that was the express wish of both parties. The term “consumer”, however, is not defined in the Charter. Ambiguity remains as to whether the Minister’s comment only referred to contracts containing standard clauses or whether contracts of adhesion were included. We will have to wait for the publication of the interpretation bulletins and the annotated edition of the act to determine whether Section 55 of the Charter applies to commercial insurance policies. In the meantime, we are of the opinion that if Québec lawmakers had wanted to exclude commercial contracts of adhesion, they would have expressly done so by means of an amendment. Insurance contracts in effect before June 1, 2023 will not have to be translated, nor will insurance contracts renewed without modifications since under those circumstances, the contract would not be regarded as a new contract.4 However, if an existing insurance contract is renewed with significant modifications, it will be regarded as a new contract and the French-language version thereof must be provided to clients so they may validly express their wish to be bound by a contract drawn up in a language other than French. Given that in most cases, insurance contracts are sent out to policyholders by regular mail or email, effective June 1, 2023, insurers, agents or brokers, as applicable, will have to send both the French-language and English-language versions of the contract in the same mailing or simply send the French-language version thereof. It is important to note that the Act provides for an exception to the requirement to provide the French-language version if: The insurance policy has no equivalent in French in Québec; and The insurance policy is originates from outside Québec or is not widely available in Québec.5 [unofficial translation] In all likelihood, this exception will only apply to highly specialized insurance products and will be interpreted restrictively given the Act’s primary objective. Unlike insurance contracts and related documents, invoices, receipts, discharge notices and other similar documents may be sent out in English if the French-language version remains available on terms that are at least as favourable.6 Services and marketing in French The Act introduces the Charter’s new Section 50.2, which states that businesses must respect consumers’ fundamental linguistic right to be informed and served in French. The same section reiterates this requirement with respect to “a public other than consumers” to whom are offered goods and services and who must henceforth be informed and served in French by businesses. Unlike consumers, however, clients who are businesses do not enjoy a fundamental linguistic right protected by the Charter. As regards marketing, the addition of the words “regardless of the medium used” to Section 52 of the Charter confirms that marketing documents in “hard copy” format must be in French, as must websites. If a version is available to the public in a language other than French, the French-language version must be available on terms that are at least as favourable. This provision took effect on June 1, 2022. Chat-type platforms or those facilitating direct communications with the insurer should make it possible for members of the public to communicate with the insurer’s representatives in French at all times. Communications with insurance agents and brokers Effective June 1, 2022, insurers are required to communicate in French with insurance agents and brokers who express the desire to do so.7 In addition, all information documents sent to insurance agents and brokers regarding underwriting or claims must be in French if they so wish. As regards contractual agreements between insurers, insurance agents and brokers, the need to provide a French-language version depends on the nature of the contract, i.e. whether it can be qualified as a contract of adhesion. French in the workplace Effective June 1, 2022, all companies doing business in Québec must comply with the following requirements in the area of employment rights: Respect employees’ right to work in French8; Use French in all written communications sent to employees; Ensure that all offers of employment, promotion or transfer; individual employment contracts; employment application forms; and documents concerning employment conditions and training sent to employees are drawn up in French;9 Take all reasonable means to avoid requiring employees to have knowledge or a specific level of knowledge of a language other than French for employees to obtain employment or to maintain their position, including in particular: Assess the actual needs associated with the duties to be performed; Make sure that the language knowledge already required from other staff members was insufficient for the performance of those duties; Restrict as much as possible the number of positions involving duties whose performance requires knowledge of or a specific level of acknowledge of a language other than French.10 It should be noted that individuals whose employment contracts are currently drawn up in English have until June 1, 2023, to ask their employer to translate their contract. Effective June 1, 2025, businesses with 25 employees or more in Québec must meet additional francization requirements for their Québec employees to obtain a francization certificate, including: Registering with the OQLF; Submitting an analysis of the status of the French language within the business; Putting in place a francization program within three months following an OQLF request to that effect. The above requirements were already in effect for businesses with more than 50 employees in Québec. French as the language of the civil administration The Act includes various modifications with respect to French as the language of the civil administration. The Québec government will be required to make exemplary and exclusive use of French, with certain exceptions. Effective June 1, 2023, all agents of the State and provincial government bodies will be required to communicate in French with all persons, including business representatives. All documents exchanged with the civil authorities, as well as all contracts and permits, must be drawn up in French. Insurance sector stakeholders outside Québec should expect to receive more communications in French from the Autorité des marchés financiers (“AMF”) given that the AMF is a body of the “civil administration”. Penalties It should be noted that new powers will be granted to the OQLF enabling it to conduct investigations and impose administrative and disciplinary penalties. As regards infractions of the Charter’s provisions, the Act provides for fines ranging from $3,000 to $30,000 for businesses and from $700 to $7,000 for individuals. These fines are doubled for a second offence and tripled for further offences. In addition, if an infraction continues for more than one day, each day constitutes a separate infraction. If an infraction is committed by a corporate director or officer, the Act provides for fines ranging from $1,400 to $14,000. Questions of interpretation Various provisions have raised questions of interpretation that are still difficult to resolve at the time of writing. Interpretation bulletins and an annotated edition of the act will be published by the provincial government with a view to guiding businesses in the application of the Act; they will also help to clarify certain provisions that remain ambiguous for the time being. For further information on changes concerning trademarks, please consult a recent publication by our colleagues specializing in intellectual property. Sec. 55, Para. 1 of the Charter. Civil Code of Québec, CQLR ch. CCQ-1991, Sec. 1379, Para. 1. Westboro Mortgage Investment vs. 9080-9013 Québec inc., 2018 Superior Court of Québec 1. Leave to appeal dismissed 2019 Court of Appeal of Québec 1599. Didier LLUELLES, Droit des assurances terrestres, 6th ed., Montréal, Éditions Thémis, 2017, Para. 186. Sec. 21.5 and Sec. 55 of the Charter. Sec. 57 of the Charter. Sec. 50.2 of the Charter. Sec. 5 and Sec. 50.2 of the Charter. Sec. 41 of the Charter. Sec. 46 of the Charter.
Confinement in an institution: a judge must intervene where evidence is insufficient
In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application. In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.
Trademarks and Charter of the French language: What can you expect from Bill 96?
On May 13, 2021, the Quebec government introduced Bill 96 to amend the Charter of the French language (the “Charter”) to strengthen the provisions regarding the use of French, particularly with respect to the language of commerce and business. This bill has been thoroughly reviewed in parliamentary committee and the committee tabled its report on April 26. In the current political context, it is expected that Bill 96 will be adopted in the coming months. The final form of the bill and its coming into force have yet to be determined. However, we can already anticipate that the timeframe for compliance with these new rules will be three years following assent of the Bill.1 The bill provides for a number of changes to the Charter, including amendments with respect to trademarks, which currently benefit from an exception. Under this exception, businesses may currently use a trademark in a language other than French in Quebec, provided that the French version of the trademark has not been registered. Since 2019, sufficient French must be present in public signage outside a building when a trademark is used in a language other than French.2 Under Bill 96, it will still be possible to use a trademark in a language other than French on products, in commercial publications and on public signage and commercial advertising in Quebec. However, the conditions for benefiting from this exception under the Charter will be modified and deserve not only attention, but also action! Start by reading the following. If you use a trademark in a language other than French in Quebec or if you plan to do so, you must first make sure that this trademark is registered.3 You will also need to review the public signage outside your premises, to comply with the new requirement of a markedly predominance presence of French.4 Finally, you will need to revise your product labels and packaging if your registered trademarks contain descriptive or generic terms in a language other than French.5 In such a case, you may have to modify your packaging and labels to add a French translation of these terms. It should be noted that the Charter applies to businesses with an establishment in Quebec, but also possibly to businesses based outside Quebec, insofar as their website is intended to perform a commercial act on Quebec territory. With respect to websites, the current practice of the Office québécois de la langue française (“OQLF”) is to intervene only in cases where the business has an establishment in the province of Quebec. If the enterprise communicating with Quebec customers does not have an establishment there, the OQLF favours an incentive approach.6 The future will tell whether this practice will be maintained once the Charter is amended.There is no doubt that foreign companies that are the subject of a complaint in this regard will be given time to translate their website into French in order to avoid the sanctions that will be more severe under the new rules. Let’s take a closer look at what each of the proposed changes means, should the bill be passed in its current form. Change #1: French to be markedly predominant on public signage outside the premises Bill 96 replaces the requirement of the sufficient presence of French with a requirement of markedly predominance of French visible from the exterior of the premises.7 Currently, the markedly predominance of French is assessed within the parameters set out in the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French Language. According to this regulation, the presence of French is considered markedly predominant if the French text has a much greater visual impact than the text in the other language (i.e. twice as large). It will be interesting to see if these rules will be maintained or if new criteria will be established for the application of Bill 96. The first element to keep in mind with respect to the requirement of the markedly predominance of French under the current law is to disregard the visual impact of the trademark. Indeed, section 1 of the Regulation provides as follows: In assessing the visual impact, a family name, a place name, a trade mark or other terms in a language other than French are not considered where their presence is specifically allowed under an exception provided for in the Charter of the French language (chapter C-11) or its regulations. Thus, as long as the trademark is registered in accordance with the new applicable rules, the visual field occupied by the trademark must be disregarded in assessing whether French is otherwise markedly predominant in the public signage outside the premises. In other words, no modification of your public signage will be required as long as your sign consists of the following: (1) a trademark (registered) in a language other than French and (2) generic or descriptive terms in French. Indeed, the only elements displayed in such a case (apart from the trademark) would be in French. However, if your public signage includes elements in a language other than French, the French should be markedly predominant (i.e. twice as large) in the visual field (excluding the space occupied by the trademark. The regulations set out various presumptions to determine whether the criterion of the much greater visual impact of French is met. In the case of a single poster: the French text will be deemed to have a much greater visual impact if the following conditions are met:8 the space devoted to the French text is at least twice as large as that devoted to the text in another language; the characters used in the French text are at least twice as large as those used in the text written in another language; and the other features of the posters do not reduce the visual impact of the French text. In the case of separate posters of different dimensions: the French text will be deemed to have a much greater visual impact if the following conditions are met:9 the posters bearing the French text are at least as numerous as those bearing the text in the other language; the characters used in the French text are at least twice as large as those used in the text in the other language; and the other features of posters do not reduce the visual impact of the French text. In the case of texts both in French and in another language: the text in French is deemed to have a much greater visual impact if the following conditions are met:10 the posters bearing the French text are at least as numerous as those bearing the text in the other language; the posters bearing the French text are at least twice as large as those with the other language text; the characters used in the French text are at least twice as large as those in the text in the other language; and the other features of the posters do not reduce the visual impact of the French text Finally, it should be noted that the criterion of the markedly predominance of French will also be applied to the trade name of the business, if it is visible from outside the premises and includes an expression from a language other than French.11 Change #2: In order to avoid translation into French, registration of the trademark used in public signage and commercial advertising is mandatory In order to use a trademark in a language other than French, without translation, with regard to public signage and commercial advertising, it will now be required to demonstrate that: the trademark is already registered in Canada; and no corresponding French version appears on the Trademarks Register.12 If these conditions are not met, the trademark will have to be accompanied by a markedly predominant French translation. If you are currently using a brand in a language other than French that is not registered, be quick because the registration process in Canada can easily take three years! Otherwise, you may be required to modify your public signage and commercial advertising to include a markedly predominant French version of the trademark. While it is possible to request an accelerated examination of an application for registration in certain special circumstances (including the fact that a court proceeding is pending), it is far from certain that the Canadian Intellectual Property Office will agree to expedite examination of applications for reasons of compliance with the Charter. It is therefore better not to delay filing your trademarks in order not to expose yourself to the consequences provided under the law. In practical terms, public signage includes any message posted in a place accessible to the public, whether inside or outside the premises, whereas commercial advertising is the expression of a commercial message, regardless of the form. The following examples are considered public display or commercial advertising: signs, posters, billboards, displays, bulletin boards; delivery vehicles, promotional bags, carts, employee uniforms; catalogues, brochures, leaflets, directories and other similar publications; and websites and social media. Change #3 : A trademark used in connection with the products must be registered to avoid French translation In its original form, the bill was silent on the issue of the use of a trademark on a product, suggesting that the status quo would continue to apply, namely that it would still be possible to use a trademark in a language other than French on a product (including its packaging or label), without the need for registration. However, the government has added a provision during the course of the parliamentary work by providing for the obligation to register trademarks in a language other than French, to avoid the addition of a French translation.13 So, no exception for product labels and packaging: make sure you register your trademarks if you have not already done so. Otherwise, you could be forced to withdraw your products from the market and pay fines under the new law, as discussed below. Change #4: Requirement to translate generic and descriptive terms for product trademarks The amendment proposed in parliamentary committee discussed above goes much further than the need to register the trademark and could have a major impact on some businesses by requiring them to modify their packaging and labels forproducts sold in Quebec. The new section 51.1 of the Charter proposed in parliamentary committee, provides that if the registered trademark (in a language other than French) contains generic or descriptive terms, these will have to be translated into French. 51.1 notwithstanding section 51, on a product, a registered trademark within the meaning of the Trademarks Act (Revised Statutes of Canada, 1985, chapter T-13) may be, even in part, solely in a language other than French where there is no corresponding version in French on the register kept under that Act.However, if generic or descriptive terms of the product are included in such trademark, they must appear in French on such product or on a medium permanently attached to it. (emphasis added) A reading of the Committee’s work provides a better understanding of the purpose of this product-specific rule: the government seems to want to limit the practice of some businesses which register, as a trademark, the label affixed to a product consisting of the main trademark, but also of several descriptive or generic terms, which would otherwise have to be translated to comply with the Charter. The example of the SOFTSOAP trademark was discussed in parliamentary committee. To illustrate this, we reproduce here two examples of registered trademarks for SOFTSOAP products: As the law currently stands, these trademarks may be registered under the Trademarks Act and they comply with the Charter. The owner of these trademarks can therefore rely on the “recognized trademarks” exception and sell its products in Quebec without translating into French the descriptive or generic terms such as “soothing clean,” “aloe vera fresh,” “refill” and “good for 800 dispenses.” Based on discussions in the parliamentary committee, the government’s concern does not seem to be directed towards the main trademarks, in this instance, SOFTSOAP, but rather towards the registration of purely descriptive terms, which do not, in themselves, have the vocation of a trademark and which nevertheless benefit from the exception of recognized trademarks under the current law. The regulations will, we hope, clarify the scope of this section 51.1 of the Charter, if it is adopted, by providing that this new requirement does not apply to the main trademarks of products. We also hope that a reasonable period of time will be given to businesses to allow them to change their labels and packaging. Change #5: Complaints, powers and penalties in the event of violation The OQLF is responsible for ensuring compliance with the Charter and its regulations. While it has the authority to identify violations, it mainly acts on complaints from the public. After reviewing a complaint, the OQLF sends an official letter if it judges that there has been a violation and it gives the business a deadline to respond. The OQLF can refer the matter to the Director of Criminal and Penal Prosecutions if the matter is not resolved to its satisfaction, who can in turn bring an action before the Court of Québec. In the event of a conviction, the court determines the amount of the fine to be paid. The OQLF mainly intervenes in cases of violations regarding public signage and websites for businesses with an establishment in Quebec. The bill brings some changes to the handling of complaints. The OQLF will have to inform the complainant of the handling of the complaint and the measures that the OQLF intends to take against the company targeted by the complaint.14 The OQLF will also benefit from new powers as of the assent of Bill 96,15 including: the power to issue orders in case of a breach (removal of products from shelves);16 the power to ask to the Superior Court to issue an injunction for the removal of non-compliant products or the removal or destruction of posters, advertisements, billboards or illuminated signs that contravene the Charter.17 Finally, the amount of fines to be paid in the case of a violation is increased as follows:18 individuals: $700 to $7,000; legal persons: $3,000 to $30,000. The bill provides that the amount of the fines doubles for a first recidivism offence and triple for any subsequent offence.19 The amount increases with each day the violation continues, with each day counted as a separate violation.20 Conclusions: What to do to prepare yourself for the entry into force of Bill 96? In practice, the requirement of having a registered trademark will be problematic for businesses who want to use a non-French trademark in Quebec, without a French translation. To comply with the new rules, businesses will indeed have to delay their launch in the province of Quebec until their mark is registered. As indicated above, registration process may easily take up to three years if not more. Let’s hope that the government will amend Bill 96 to require filing of an application as opposed to trademark registration. Businesses that use trademarks in a language other than French have every reason to take the following measures right now: List all trademarks used in a language other than French (including slogans) as well as those to be used in upcoming projects; Consult a trademark expert to determine the best strategy, including clearance searches to ensure that these trademarks are registrable; File trademark applications quickly, given the lengthy registration process in Canada (i.e. a minimum of three years),. A review of product labels and packaging should also be initiated to ensure compliance with the new rules, once the bill is passed. Finally, public signage outside the premises will also have to be reviewed insofar as a language other than French is used, apart from the trademark. A proactive approach will allow you to avoid costs related to the addition of a French translation in public signage, advertising and labelling of your products and services and, moreover, to avoid fines in the event of non-compliance with the new rules. Ready, Set, Register! Bill 96, article 201 paragraph 5 Regulation respecting the language of commerce and business, section 25.1 Bill 96, article 47 Bill 96, article 47 Bill 96, article 42.1 10 legal questions about the Charter of the French Language, websites and social media accounts, Question 3 and Question 6; Les médias sociaux et la Charte de la langue française – Guide pratique à l’intention des entreprises, https://www.oqlf.gouv.qc.ca/francisation/entreprises/guide-medias-sociaux.pdf, pages 7 and 8 Bill 96, article 47 Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 2 Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 3 Regulations defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 4 Bill 96, article 48 Bill 96, article 47 Bill 96, article 42.1 Bill 96, article 107 Bill 96, article 201 Bill 96, article 113 (177) Bill 96, article 113 (184) Bill 96, article 114 (205) Bill 96, article 114 (206) Bill 96, article 114 (208)
Telework: Better Safe
Telework is not a new phenomenon. According to the International Labour Organization, its rise dates back to the 1970s when a major oil crisis prompted many companies to keep their employees at home to reduce their energy consumption1. That said, since the Covid pandemic, teleworking has become widespread. Now, nearly a quarter of Canadian companies (22.5%) expect that 10% or more of their workforce will continue to telework after business is back to normal2. Needless to say, this mode of work is here to stay. However, teleworking can be a real headache for employers when it comes to injury prevention and occurrence. A more permissive caselaw The Act Respecting Industrial Accidents and Occupational Diseases3(the "AIAOD") may apply to homeworkers4. In fact, the courts have long held that a home can be considered a workplace within the meaning of this Act, where there is part of the work that is performed by the employee with the knowledge and consent of the employer5. In fact, before the pandemic, there were two opposing lines of caselaw regarding the acceptance of workplace injuries when they occurred in the home of the worker who was duly authorized to work remotely. One accepted them, the other denied them. However, it was all a question of circumstances. If the situation fell within the sphere of professional activities, it was accepted, even if it could be considered as part of the personal sphere. 6 However, since the pandemic, in 2020 and 2021, the Administrative Labour Tribunal (the "ALT") has issued several decisions expanding the boundaries of this sphere of professional activities. Several so-called "comfort" activities have been admitted in the context of teleworking, such as falling while walking during a health break7or on the stairs at home at the beginning of the lunch hour8. Similarly, going to the bathroom9, going outside to smoke10, getting a soft drink11, a coffee12, or a dish from the microwave13 could qualify as comfort activities within the sphere of work activities at work, even when teleworking. Although the restrictive trend could still be applied, it is important to note that each situation must be analyzed individually, taking into account the location of the event, the existence and degree of authority over the worker, the purpose of the exercise and its usefulness with respect to the performance of the work. In short, given the increased use of telework, employers should expect to see an increase in such claims. This observation should guide them in the organization of this new work method, especially considering the new amendments to the Act Respecting Occupational Health and Safety (the "AOHS"). Impact of amendments to the Act Respecting Occupational Health and Safety In 2021, the AOHS underwent a number of important changes. One of them is that the Act and its prevention obligations apply to both the worker who teleworks and the employer14. This means that the worker's home or open workspaces are now the employer's responsibility. For example, the obligation set out in section 51(7) of the AOHS, namely that the employer must provide safe equipment and ensure that it is maintained in good condition, applies in this case to the telework environment where the worker is located. This new reality entails obligations for employers and will undoubtedly have an impact on the courts' interpretation of the acceptance of an employment injury. Indeed, as shown in the previous section, recent decisions tend to demonstrate that accidents that occur at home in the context of telework are mostly admissible. Moreover, the new obligation set out in the AOHS according to which the telework environment is under the responsibility of the employer in matters of prevention related to occupational health and safety is likely to be interpreted by the courts as being more conducive to the recognition of workplace injuries. The link is certainly not direct, but the trend in caselaw and the amendment to the AOHS lead us to believe that this will be the case. Recommendations in light of the evolution of caselaw and amendments to the AOHS In light of the above, it would be advisable to establish or revise a telework policy in order to ensure that the obligations of the employer and those of the worker with respect to the telework workplace are clearly defined. For example, depending on the activities that may be carried out, it will be important to define the notion of workplace in a telework environment. To do so, each employer will have to ask itself many questions, such as: Do you want to allow teleworking in a cooperative teleworking location? What measures can be put in place to ensure that prevention obligations are met and that occupational injuries are avoided? Who will be responsible for ensuring that the employer's obligations regarding prevention are met in a context where the employee works remotely? How to manage employees who are outside the country? In short, all these questions will have to be analyzed in the context of drafting or rewriting a telework policy. The members of the Labour and Employment Law team remain available to assist you in your reflection and in the revision of your policy, if necessary. International Labour Organization, Challenges and Opportunities of Teleworking for Workers and Employers in the ICTS and Financial Services Sectors, Geneva, 2016. Statistics Canada, Canadian Survey on Business Conditions: Impact of COVID-19 on businesses in Canada, May 2020. CQLR, c. A-3.001. Club des petits déjeuners du Québec c. M.C. Frappier, 2009 QCCLP 7647. Quebecor Media Inc. et Marco Delgadillo, 2011 QCCLP 4843. Desrochers et Agence de revenu du Canada, 2011 QCCLP 7562; Futura manufacturier de portes & fenêtres inc. et Rossignol, 2020 QCTAT 2562; Benoît et NCH Canada inc, 2021 QCTAT 856. Laverdière et Ministère des Forêts, de la Faune et des Parcs (Opérations régionales), 2021 QCTAT 5644. Air Canada et Gentile-Patti, 2021 QCTAT 5829. Lefèbvre (Re), 2006 CanLII 70745 (QC CLP). Miljours et Ameublement Branchaud, 2016 QCTAT 809. Cormier et Société des Entreprises Innues d'Ekuanitshit (2009), 2019 QCTAT 3752, Robillard et DPCP, 2020 QCTAT 2933. Giroux et Pro Mec Élite inc, 2014 QCCLP 2853. Beaudry et Ministère de la Sécurité publique (Santé-sécurité), 2004 CanLII 92916 (QC CLP). AOHS, sec. 5.1.
Complaint processing: New framework to come for financial institutions and financial intermediaries
Last September, the AMF published its draft Regulation respecting complaint processing and dispute resolution in the financial sector (the “Draft Regulation”). The consultation period for it ended on December 8, 2021. The AMF is currently reviewing the many comments it received. The Draft Regulation1 aims to harmonize and improve complaint processing in the financial sector by providing for new mechanisms to ensure prompt and efficient complaint processing, among other things. In the insurance industry, only firms and insurers are currently required to adopt and apply a complaint processing and dispute resolution policy. The Draft Regulation will make these obligations apply to independent partnerships and representatives. It also introduces new requirements and restrictions as well as monetary penalties for not including mandatory content in communications to a complainant, for example. Here are some of the Draft Regulation’s new provisions: Broadening of the definition of “complaint” to: Any dissatisfaction or reproach; That cannot be remedied immediately and for which a final response is expected; In respect of a service or product offered by a financial institution or financial intermediary; That is communicated by a person who is a member of the clientele of the institution or intermediary. The Draft Regulation does not contain a requirement that a complaint must be made in writing.2 It does make it mandatory for financial institutions and financial intermediaries to implement a complaint drafting assistance service.3 It also requires that a note be left in each record to indicate whether a complainant requested this service. Prohibition on the use of the term “ombudsman” in any representation or communication intended for the public to refer to the complaint process or to the persons assigned to its implementation.4 Specific requirements as concerns the mandatory content of a complaint processing policy, an acknowledgment of receipt and final response to a complainant, a complaint record and a complaints register. For each complaint received, the complaint record must include the following information: The complaint Whether the complainant requested the complaint drafting assistance service The complainant’s initial communication A copy of the acknowledgment of receipt sent to the complainant Any document or information used in analyzing the complaint, including any communication with the complainant A copy of the final response provided to the complainant New time limits: Within 10 days of receiving a complaint, the insurer must notify the complainant in writing that they must also file the complaint with any other financial institution, financial intermediary or credit assessment agent involved, and the insurer must provide the complainant with their contact information.5 The complainant must be given 20 days to assess and respond to an offer to resolve the complaint, with sufficient time for the complainant to seek advice for the purpose of making an informed decision.6 If the complainant accepts the offer, the insurer has 30 days to respond.7 Financial institutions and financial intermediaries have a strict 60-day time limit to provide the complainant with a final response.8 There is a new 15-day time limit to send the complaint record to the AMF.9 There is a streamlined process for complaints that are resolved within 10 days of being recorded in the complaints register: The final response serves as an acknowledgment of receipt and must contain the following information: The complaint record identification code The date on which the complaint was received by the insurer or insurance representative The name and contact information of the employee responsible for processing the complaint referred to in section 7 of the Draft Regulation or in the Sound Commercial Practices Guideline A summary of the complaint received The conclusion of the analysis, including reasons, and the outcome of the complaint A reference to the complainant’s right to have the complaint record examined by the AMF The signature of the complaints officer A statement to the effect that the complainant has accepted the offer to resolve the complaint New monetary administrative penalties The Draft Regulation also provides for monetary administrative penalties ranging from $1,000 to $5,000 for failure to comply with certain requirements and prohibitions of the Draft Regulation. For example, the following will be subject to a monetary administrative penalty of $5,000: Attaching a condition to an offer to prevent the complainant from fully exercising their rights. Using the term “ombudsman” or any other similar title in any representation or communication intended for the public to refer to the complaint process or the persons assigned to its implementation to suggest that such persons are not acting on behalf of the financial institution or financial intermediary. In the latter case, a monetary administrative penalty may be imposed even where no complaint is involved, because the prohibition covers “any representation or communication intended for the public.” Insurers and financial intermediaries should review their communications as soon as possible, and especially the summary of their complaint processing policy appearing on their website. It concerns all entities regulated by the AMF, but the bulletin more specifically addresses financial institutions and financial intermediaries in the insurance industry. As currently indicated on the AMF’s website. Draft Regulation, s. 11. Id., s. 26, para. 2. Id., s. 15. Id., s. 13. Id. Id., s. 12, para. 4. Id., s. 25.
Bill C-18 (Online News Act): Canada looking to create a level playing field for news media
Earlier this month, Canadian Heritage Minister Pablo Rodriguez introduced Bill C-18 (Online News Act) in Parliament. This bill, which was largely inspired by similar legislation in Australia, aims to reduce bargaining imbalances between online platforms and Canadian news outlets in terms of how these “digital news intermediaries” allow news content to be accessed and shared on their platforms. If passed, the Online News Act would, among other things, require these digital platforms such as Google and Facebook to enter into fair commercial agreements with news organizations for the use and dissemination of news related content on their platforms. Bill C-18, which was introduced on April 5, 2022, has a very broad scope, and covers all Canadian journalistic organizations, regardless of the type of media (online, print, etc.), if they meet certain eligibility criteria. With respect to the “digital news intermediaries” on which the journalistic content is shared, Bill C-18 specifically targets online communication platforms such as search engines or social media networks through which news content is made available to Canadian users and which, due to their size, have a significant bargaining imbalance with news media organizations. The bill proposes certain criteria by which this situation of bargaining imbalance can be determined, including the size of the digital platform, whether the platform operates in a market that provides a strategic advantage over news organizations and whether the platform occupies a prominent position within its market. These are clearly very subjective criteria which make it difficult to precisely identify these “digital news intermediaries.” Bill C-18 also currently provides that the intermediaries themselves will be required to notify the Canadian Radio-television and Telecommunications Commission (“CRTC”) of the fact that the Act applies to them. The mandatory negotiation process is really the heart of Bill C-18. If passed in its current form, digital platform operators will be required to negotiate in good faith with Canadian media organizations to reach fair revenue sharing agreements. If the parties fail to reach an agreement at the end of the negotiation and mediation process provided for in the legislation, a panel of three arbitrators may be called upon to select the final offer made by one of the parties. For the purposes of enforceability, the arbitration panel’s decision is then deemed, to constitute an agreement entered into by the parties. Finally, Bill C-18 provides digital platforms the possibility of applying to the CRTC for an exemption from mandatory arbitration provided that their revenue sharing agreements meet the following criteria: Provide fair compensation to the news businesses for news content that is made available on their platforms; Ensure that an appropriate portion of the compensation would be used by the news businesses to support the production of local, regional and national news content; Do not allow corporate influence to undermine the freedom of expression and journalistic independence enjoyed by news outlets; Contribute to the sustainability of Canada’s digital news marketplace; Ensure support for independent local news businesses, and ensure that a significant portion of independent local news businesses benefit from the deals; and Reflect the diversity of the Canadian news marketplace, including diversity with respect to language, racialized groups, Indigenous communities, local news and business models. A bill of this scope will certainly be studied very closely by the members of Parliament, and it would not be surprising if significant amendments were made during this process. We believe that some clarifications would be welcome, particularly as to the precise identity of businesses that will be considered “digital information intermediaries” for the purposes of the Online News Act.
Amendments to the categories of contracts covered by the exemptions to the obligation of an insurer to assume an insured’s defence—the Regulation to come into force
On April 20, 2022, the government issued Order in Council 656-2022, which makes significant amendments to the Regulation respecting categories of insurance contracts and classes of insureds that may derogate from the rules of articles 2500 and 2503 (the “Regulation”). The original version of the draft regulation with the same title (the “Draft Regulation”) was the subject of one of our publications last September. The Regulation as amended will come into force on the 15th day following the date of its publication in the Gazette officielle du Québec; that is, on May 5, 2022. Background In its articles 2500 and 2503, the Civil Code of Québec (the “C.C.Q.”) provides that the costs resulting from actions against an insured over and above the proceeds of insurance provided for in civil liability insurance contracts, including those of the defence, are borne by the insurer. In June 2021, the government amended article 2503 of the C.C.Q. to make it possible for some “categories of insurance contracts” and “classes of insureds” to be determined by regulation to depart from these rules. It is in this context that the Draft Regulation came about. It was was significantly modified following the numerous comments and observations received from various industry stakeholders. Amendments First, sections 1 and 2 were amended to specify when the insured must meet the conditions referred to in these sections, i.e., “at the time of subscription”. The duration of the contracts covered by the first two sections of the Regulation is limited to one year pursuant to the new section 3. It also specified that in the case of contract renewal, the insured must meet the conditions set out in these sections. The provisions of the former section 5 remain, with the necessary adaptations, and are now found in section 4. Finally, sections 6, 7 and 8 were simply removed. Categories of insured covered Below are the categories of insureds who may subscribe to policies that depart from the rules set out in articles 2500 and 2503 of the C.C.Q.: Section 1 Drug manufacturers under the Act respecting prescription drug insurance; Certain corporations incorporated under a private bill; and Directors, officers and trustees of such businesses, except for their activities as members of a pension committee. Section 2 Companies that are not referred to in section 1, but that meet one of the following conditions “where the total coverage under all the civil liability insurance contracts subscribed by that insured is at least $5,000,000”: Large businesses for the purposes of the Act respecting the Québec sales tax, that is, businesses that have total taxable sales in a given fiscal year in excess of $10 million; A reporting issuer or subsidiary of such a reporting issuer within the meaning of the Securities Act; A foreign business corporation within the meaning of the Taxation Act or the Income Tax Act, that is, a company that is not resident in Canada; and Directors, officers and trustees of such businesses, except for their activities as members of a pension committee. What to expect The amendments to the Draft Regulation reflect a willingness to simplify its application. In this regard, the removal of section 8 will no doubt be well received. Nevertheless, Quebec continues to be an exception to the principle of full freedom of contract. As a result, small and medium-sized enterprises in certain industries may continue to be affected by the tightening of the insurance market in Quebec, including the manufacturing sector that exports to the United States. It remains to be seen whether the Regulation will change over time. If you have any questions on the subject matter of this article or any other questions, feel free to contact a member of Lavery’s insurance team.  A-29.01.  Act constituting Capital régional et coopératif Desjardins (C-6.1), Act to establish Fondaction, le Fonds de développement de la Confédération des Syndicats Nationaux pour la coopération et l’emploi (F-3.1.2) and Act to establish the Fonds de solidarité des travailleurs du Québec (F.T.Q.) (F-3.2.1).  T-0.1.  V-1.1.  I-3.  R.S.C. 1985, c. 1 (5th Supp.).
Celebrating youth innovation!
This year’s World IP Day is upon us, with the theme “IP and Youth: Innovating for a Better Future”. In honor of this theme (and at the risk of making our adult readers feel a bit less accomplished), we thought it would be appropriate to highlight some of these wonderful inventions of young, innovative minds. US 8,371,246: Device for drying pets In 2011, 9-year-old Marissa Streng invented a device to more effectively dry her pet dog Mojo after his baths. The product is now apparently sold under the brand Puff-N-Fluff. US 7,726,080: Under-floor storage At the age of 14, Rebecca Hyndman patented an under-floor storage system intended for use in locations where tile floors are normally used, such as in kitchens and in bathrooms. As a result of this achievement, she was given the honor of introducing President Obama at the Thomas Jefferson High School for Science and Technology, immediately prior to his signing the America Invents Act into law. US 6,029,874: Article carrying device for attachment to a bicycle for carrying baseball bats, gloves and other sports equipment or objects Biking to baseball practice can be quite the challenge when one has to carry both a bat and a glove simultaneously. From this problem sprang the “Glove and Battie Caddie”, invented by Austin Meggitt at the age of eleven. The Glove and Battie Caddie holds a baseball, bat, and glove on the front of a bike. US 7,374,228: Toy vehicle adapted for medical use At the age of 8, young Spencer Whale invented a toy vehicle adapted for transporting a child and their required medical equipment. According to the patent, the toy allows children who are hooked up to medical equipment to move more freely around a hospital, with the intention of making their stay more enjoyable. US 5,231,733: Aid for grasping round knobs One of the youngest people to obtain a patent was Sydney Dittman of Houston, Texas. In 1992, when Sydney was only 2 years old, she invented a tool out of parts of her toys in order to open kitchen drawers that her parents had told her to stay out of. Upon noticing that the device would be great for handicapped people to use, her father started the patenting process, and the resulting patent issued when Sydney was only 4 years old. Please join us to celebrate youth innovation on this World IP Day!
Autonomous vehicles: insurances, responsibilitie and news
The pandemic has not slowed down the arrival of self-driving vehicles on our roads. This technological advancement is becoming more and more commonplace, giving rise to a need for deep reflection, especially in the automobile insurance industry. The AMF issue paper On October 20, 2021, the Autorité des marchés financiers (AMF) published an issue paper on self-driving vehicles (SDVs),1 deeming that the developments surrounding them were likely to have “considerable impacts on insurers and on the overall functioning of the automobile insurance system” in Quebec. In it, the AMF addresses several interesting avenues for reflection. The public insurance plan Under the current Highway Safety Code, the Minister of Transport can, through a pilot project, require manufacturers or distributors to reimburse the compensation paid by the Société d'assurance automobile du Québec (SAAQ) following accidents involving an SDV.2 In this context, the AMF is asking whether these manufacturers, distributors and sellers should be able to purchase insurance to protect themselves in the event of this type of claim. Private insurance plans With certain exceptions, the Automobile Insurance Act provides that the owner of a vehicle is liable for property damage caused by their vehicle.3 Human error is currently the primary cause of collisions; however, with the advent of SDVs, attributing liability for accidents will become more complicated. The transfer of liability to vehicle manufacturers and their subcontractors in the event of an accident could lead to a possible shift from insurance policies offering individual coverage to policies designed to protect manufacturers or software developers, for example. The AMF is considering whether the current wording of the automobile insurance policies issued for SDVs should move towards the notion of “using” a vehicle, thus modifying the notion of driving. In addition, direct compensation agreements currently provide that insurers compensate their own insureds for the liability of drivers of other vehicles involved in an accident. They allow subrogation against a third party responsible for the collision, but exclude collisions involving the same vehicle owners. In the context of SDVs, where a manufacturer could retain ownership of the vehicle during use, for example with a fleet of vehicles, there is reason to question the application of these agreements. Their very relevance is in doubt, according to the AMF. The AMF raises other interesting discussion points: Should automobile manufacturers be required to disclose accident data involving SDVs to the SAAQ? What data should be used to determine the insurance premiums associated with an SDV? Should the order of application of manufacturers', subcontractors' and owners' insurance policies in the event of an accident involving SDVs be provided for by regulation? Criminal charges in California As a result of an accident involving an SDV driving in “autopilot” mode, killing two (2) people, the driver of the vehicle was charged with two (2) counts of manslaughter. The accident was caused by the SDV leaving a highway at high speed, running a red light and hitting a vehicle in the intersection. In a previous report, the National Transportation Safety Board (NTSB) already reviewed the concept of “automation complacency,” in which drivers are inclined to rely too much on the self-driving modes currently on the market, which still require drivers' attention. It should be kept in mind that full vehicle automation is not yet available and that drivers remain responsible for the operation of SDVs, which are only partially automated at this time. Disabling Tesla’s “Passenger Play” Since December 2020, Tesla has offered the “Passenger Play” feature in several of its vehicle models, which allows drivers to play video games while the car is in motion. After receiving a complaint from a Tesla driver, the NTSB launched an investigation and determined that this option “may distract the driver and increase the risk of a crash.” In December 2021, Tesla announced that in future updates to the system, Passenger Play would only be available when the car is stationary. Robots as border patrollers The U.S. Department of Homeland Security recently confirmed that a pilot project involving robot dogs in border surveillance at the U.S.-Mexico border is underway. The fleet of robots, called “automated ground surveillance vehicles,” is presented as a “force multiplier.” The project is facing a range of criticism, with regard to its true ability to be a tangible agent of change in terms of border security, but also from community advocates, who accuse the government of going too far for the sake of security. According to the authorities, the robots have the potential to reduce the risk of border officers’ exposure to deadly hazards in an environment that is inhospitable to humans. Driverless buses at Plaza St-Hubert Closer to home, we saw driverless buses circulating freely along Plaza St-Hubert in Montréal last fall. Keolis made its SDVs available for a free 30-minute route with seven (7) stops. The project, implemented by the Ville de Montréal with a grant from the Government of Québec, was designed to test the SDVs in a dense urban environment. Document de réflexion, Préparer le Québec à l’arrivée des véhicules automatisées et connectés, Autorité des marchés financiers, October 21, 2021. Highway Safety Code, CQLR, c. C-24.2, s. 633.1. Automobile Insurance Act, CQLR, c. A-25, s. 108.
Improved Protection of Trainees in the Workplace: Key Points
On February 24, Bill 14, An Act to ensure the Protection of Trainees in the workplace (hereinafter the “Act”), received assent. The purpose of this Act is to provide better protection for people completing a training in a workplace. For this reason, it contains several provisions similar to those found in the Act respecting labour standards1 (hereinafter the “ALS”). First of all, the Act covers training that is required to obtain a permit to practice issued by a professional order or as part of a program of studies or training program offered by an educational institution that leads to a diploma, certificate or attestation of studies.2 The protection of trainees applies whether the training is paid or not and regardless of where the training is carried out in the workplace, as long as the employer’s residence, domicile, business, head office or office is located in Quebec. It also applies to trainees domiciled or resident in Quebec who do training outside Quebec with an employer.3 OBLIGATIONS FOR THE EMPLOYER The employer, the educational institution and the professional order must inform all trainees of the rights provided for in the Act, allow trainees to be absent for the various reasons provided for in the Act, and ensure that the successful completion of the studies or training, or the obtainment of the permit to practice, is not compromised by the exercise of a right provided for in the Act.4 The legislator expressly provides that the standards relating to training conditions contained in this Act are of public order and that any provision of an agreement or decree that departs from them is absolutely null.5 However, as is the case with the ALS, it is possible to grant trainees more advantageous conditions for completing the training than those prescribed by this Act. PROTECTIONS FOR TRAINEES In line with the provisions already found in the ALS, the Act expands the protection of trainees with respect to statutory holidays, absences and psychological harassment. Statutory holidays: A trainee may be absent from their training on the following days:6 January 1; Good Friday or Easter Monday (employer’s choice); The Monday preceding May 25; June 24; July 1 (or, if this date falls on a Sunday, July 2); The first Monday in September; The second Monday in October ; December 25. However, if the trainee is required to participate in their training on any of these days, they are entitled to a compensatory holiday of one day, to be taken during the training period done with the same employer. There are special provisions for the statutory holiday on June 24.7 Absences due to sickness or family/parental reasons: A trainee may be absent from their training on the following days: Ten (10) days per year due to sickness, to fulfill obligations related to the care, health or education of the trainee’s child or spouse’s child, or due to the health condition of a relative or person for whom the trainee is acting as a caregiver;8 One (1) or five (5) days on the occasion of the death or funeral of a close relative, with the length of the absence determined by the relationship;9 One (1) day on the day of their wedding or civil union, or that of one of the family members listed;10 Five (5) days on the occasion of the birth or adoption of a child, or when a termination of pregnancy occurs after the twentieth (20th) week of pregnancy;11 and For a medical examination related to the trainee’s pregnancy.12 Psychological harassment: The Act provides that every trainee has the right to a training environment free of psychological harassment. The employer and, as the case may be, the educational institution or professional order, must take reasonable measures to prevent psychological harassment and, when such conduct is brought to their attention, to protect the trainee and put a stop to it. The psychological harassment prevention and complaint processing policy must be made available to trainees and applied to them with the necessary adaptations.13 RECOURSE The Commission des normes, de la santé et de la sécurité du travail (hereinafter, the “CNESST”) supervises the implementation and application of the training conditions provided for in the Act.14 Prohibited practices: No employer, educational institution or professional order, or their agents, may end training or dismiss, suspend or transfer, practise discrimination or take reprisals against, or otherwise impose any sanction on a trainee as a result of the trainee exercising a right under the Act, or for certain grounds under section 122 of the ALS.15 A trainee who believes that they have been the victim of a prohibited practice may file a complaint with the CNESST within forty-five (45) days of the occurrence. A non-profit organization dedicated to the defence of students’ rights, a students’ association or a students’ association alliance can also file a complaint with the CNESST on behalf of a trainee who consents to it.16 If it is established to the satisfaction of the Administrative Labour Tribunal (ALT) that the trainee exercised a right arising from the Act, there is a simple presumption in the trainee’s favour that the sanction or measure was imposed because of the exercise of that right. In this case, the employer, educational institution or professional order has to prove that the sanction or action was taken for good and sufficient reason.17 Psychological harassment: A trainee or, as the case may be, a non-profit organization dedicated to the defence of students’ rights, a students’ association or a students’ association alliance, can file a complaint with the CNESST if the trainee believes they have been a victim of psychological harassment. This complaint must be filed within two (2) years of the last occurrence of the conduct. However, the trainee may not file a complaint with the CNESST if they are an employee covered by a collective agreement, insofar as a recourse against psychological harassment is available to the employee under the agreement.18 If the ALT concludes that a trainee has been the victim of a prohibited practice or psychological harassment, it may, among other things, order that the trainee be reinstated in their training with all their rights and privileges, that accommodation measures be implemented, or order to comply with any other measure intended to safeguard the trainee's rights, such as a provisional order.19 PENAL SANCTIONS Any person that contravenes the Act, including by offering training conditions inferior to those specified in the Act, is liable to a fine of $600 to $1,200 and, in the case of a subsequent offence, $1,200 to $6,000.20 The members of our Labour and Employment Law group are available to advise you and answer your questions. CQLR, c. N-1.1. Section 1. Section 1. Section 4. Section 6. Sections 9 and 10. Section 10. Depending on the situation, trainees have the right to be absent on June 25 or the right to a compensatory holiday of one day, to be taken either on the business day before or after June 24, or during the training period done with the same employer. Section 11. Sections 12 and 13. Section 14. Section 15. Section 17. Section 19. Section 7. Section 20. Section 21. Section 25. Section 26. Section 30. Section 32.
Federal Budget 2022: Good News for Mining Exploration Compagnies!
On April 7, 2022, Finance Minister Chrystia Freeland tabled the federal government’s new budget for 2022. This budget includes several tax measures relevant to the mining industry in Canada. The Canadian federal government intends to provide $3.8 billion over eight years to implement Canada’s first critical minerals strategy. One of the methods used to implement this new strategy and stimulate exploration is an investment vehicle well known to the mining industry: flow-through shares. The 2022 budget proposes to create a new 30% Critical Mineral Exploration Tax Credit (CMETC) for certain specified minerals. Specified minerals that would be eligible for the new CMETC are: copper, nickel, lithium, cobalt, graphite, rare earth elements, scandium, titanium, gallium, vanadium, tellurium, magnesium, zinc, platinum group metals and uranium. As for the regular mineral exploration tax credit, the exploration expenses must have been incurred in Canada. The renunciation of expenses must also have been made under flow-through share agreements entered into after budget day and before March 31, 2027. It is important to note that there will be no cumulation of tax credits. Eligible expenditures will not be eligible for both the proposed new CMETC and the 15% regular mineral exploration tax credit (METC). In order for exploration expenses to qualify for the CMETC, a qualified person (as defined in National Instrument 43–101 issued by the Canadian Securities Administrators) will further have to certify that the expenses renounced will be incurred in the course of an exploration project for specified minerals. On this point, the measure seems to insert a new legal test of “reasonable expectation” that the minerals targeted by the exploration are “primarily specified minerals”. No details have yet been issued on the mechanics of applying this test. However, if the qualified person is unable to demonstrate that there is a reasonable expectation that the minerals targeted by the exploration project are predominantly specified minerals, the related exploration expenses would not be eligible for the CMETC and consequently, any credit granted for ineligible expenses would be recouped from the flow-through share holder who received the credit. Pending the tabling of a more detailed legislative version, careful attention and planning will therefore be required for new flow-through share financings to ensure that they meet the legal criteria for this new tax credit. Our team of professionals in securities, mining law and taxation is available to answer all your questions regarding this new measure and to assist you in the implementation of a successful flow-through financing: Josianne Beaudry René Branchaud Ali El Haskouri Charles-Hugo Gagné Éric Gélinas Sébastien Vézina