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Canada-Europe Free Trade Agreement – Imminent provisional entry into force
Provisional entry into force 90% of the Agreement will be in force The date is still uncertain, possibly as soon as June 2017 The Agreement in 6 key points Access to the European Union market, which includes 28 States and 500 million consumers; Elimination of custom duties on 98% of tariff lines; Projected increase of $324 million per year in Québec exports to the European Union by 2022; Projected 20% increase of exchanges with Europe; Access to the vast European public market; Impact on all sectors of the economy, from services and natural resources to the agricultural and the manufacturing sector. On the eve of the provisional entry into force of the Canada-Europe Free Trade Agreement, understanding its implications should be a top priority for any company wishing to expand its activities over the course of the next few years. The vote held on February 15th at the European Parliament in favour of the ratification of the Agreement makes its entry into force imminent. The Agreement will open the door to the vast European market for Canadian businesses, a market representing on average thousands of billions of dollars per year with a population of 500 million. Imminent provisional entry into force In the wake of the historic vote of the European Parliament in favour of the ratification of the Comprehensive Economic and Trade Agreement (“CETA” or “Agreement”), one of the most important free trade zones in the world is on the verge of being established. This vote was held the day after Bill C-30 was passed by the House of Commons in Ottawa and referred to the Senate. This Bill aims to initiate the legislative amendments which are necessary for the Agreement to come into force in Canada. The important steps taken in the last few weeks make it possible for the Agreement to provisionally enter into force as early as this summer. In what way will the entry into force of the Agreement be provisional? At the time of the provisional entry into force, only the provisions on the Investor-State remedies and a provision on the criminalization of Camcording will not enter into force. That means that the entire Agreement will apply in both jurisdictions: 99% of industrial tariffs and 95% of agri-food tariffs will henceforth disappear. The pending legislative amendments in Canada will result in the opening of the Canadian public markets by the provinces and their dependant organizations, including the education, health and municipal sectors. In addition to the elimination of custom duties, the entry into force of the Agreement will result in a reduction of administrative formalities and bureaucratic obstacles to trade. The provisions of the Agreement will allow Canadian entrepreneurs to have the products they intend to export to the European market tested and certified in Canada, thus avoiding the costs related to certification and reducing delays. CETA will also improve access to the services trade, facilitate labour mobility and provide access to European public markets. Conclusion Once the Agreement fully enters into force, Canada will have unequalled access to the two most important world markets, that is, the North- American market, which is governed by NAFTA, and the European market through CETA. Québec businesses will find it most beneficial to consider the new business opportunities and partnerships made possible by the Agreement in order to profit from this preferential access and make their companies prosper.
New disclosure obligations for Quebec mining, oil and gas companies
Quebec mining, oil and gas companies are henceforth subject to the imposing disclosure regime under the Act respecting transparency measures in the mining, oil and gas industries (the “Act”), which came into force last October 21. This statute echoes the Extractive Sector Transparency Measures Act (Canada),1 which took effect on June 1, 2015, and follows a global trend to increase the transparency of mining, oil and gas exploration and development. The measures provided for in the Act are aimed at discouraging and detecting corruption, as well as fostering the social acceptability of these activities. Under the Act, the companies subject to the Act are required to declare in a statement, as of the next fiscal year following their current fiscal year on October 21, 2015, the payments covered by the Act made to payees for each project and country in which they have operations. Furthermore, this obligation extends to the subsidiaries controlled by a company subject to the Act. The statements will be made public for five years. Companies subject to the Act Is subject to the Act any company which engages in exploration for or development of mineral substances or hydrocarbons and which meets any of the following requirements: its securities are listed on a stock exchange in Canada and its head office is in Quebec; or it has an establishment in Quebec, exercises activities or has assets in Quebec and, based on its consolidated financial statements, meets at least two of the following three conditions for at least one of its two most recent fiscal years: $20 million or more in assets, $40 million or more in revenue, an average of 250 employees or more. Payments covered The payments covered are monetary payments or payments in kind made to the same payee during a fiscal year, where the total value of those payments is equal to or greater than $100,000. The following payments are subject to disclosure: taxes and income tax, other than consumption taxes and personal income taxes royalties fees, including rental fees, entry fees, regulatory charges and any other consideration for licences, permits or concessions production entitlements dividends other than those paid as an ordinary shareholder of a person subject to the Act bonuses, including signature, discovery and production bonuses contributions for infrastructure construction or improvement Payees The Act defines a payee as a government, a body established by two or more governments, a municipality or an aboriginal community,2 as well as an agent exercising powers or duties for such payees. Application and administration of the Act The administration of the Act is assigned to the Autorité des marchés financiers ("AMF"). To avoid duplication, the Act provides that a statement filed in accordance with the requirements of another state may be substituted for the statement required under Quebec law if the government has determined by regulation that the requirements of that state are an acceptable substitute. The statement must be accompanied by a certificate made by an officer or director of the company subject to the Act, or by an independent auditor, attesting that the information contained in the statement is true, accurate and complete. In addition to the investigative powers generally available to the AMF under the Act respecting the Autorité des marchés financiers (chapter A-33.2), the Act gives it the power to require the communication of any document or information considered useful for purposes of the Act. This includes a list of the mining, oil or gas exploration or development projects in which the company subject to the Act has an interest, an explanation of how the disclosed payments were calculated, and a statement of any policies implemented for purposes of meeting the obligations under the Act. The AMF may also require an audit by an outside independent auditor of the statement or the documents pertaining to the disclosed payments. Penalties Lastly, significant penalties are provided for a failure to comply by a company subject to the Act. In particular, the Act provides for administrative monetary penalties for which the directors and officers are jointly and severally liable, unless they demonstrate that they exercised due care and diligence to prevent the failure which led to the penalty. In addition, the penal provisions provide for a fine of up to $250,000 for a failure to comply with certain significant provisions of the Act. Quebec mining, oil and gas companies will be well-advised to stay informed of the regulations that will be passed by the provincial government and which could provide for exceptions or extensions to the requirements of the Act regarding the companies subject to the Act, the payments covered and the payees concerned. 1 Need to Know newsletter, june 2015. 2 A transitional period is provided for regarding payments made to aboriginal communities. The Act will apply to these communities beginning on June 1, 2017.
Pension plans, the charter and disparity in treatment clauses the Court of Appeal issues its judgment in the Groupe Pages Jaunes case
The financial burden and the risks inherent in defined benefit supplemental pension plans sometimes weigh heavily on employers. In the last few years, many employers have taken measures and made changes in order to lower the costs related to these plans. Some employers have also decided to make certain changes to other pension benefits offered to their employees. In this respect, some employers have decided, among other things: to implement a defined contribution plan for their new employees1 (with current employees, for their part, continuing to accumulate rights in a defined benefit plan); and/or not to offer other benefits to their new employees upon retirement or to provide them with less generous benefits. In the Groupe Pages Jaunes Cie case, the Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ (the “Union”) argued that these changes violated: section 87.1 of the Act Respecting Labour Standards (the “ARLS”), which prohibits disparities in treatment based solely on one’s date of hire; sections 10, 16 and 19 of the Charter of Human Rights and Freedoms ( the “Charter”), which among other things, provide that no one may practise discrimination in the determination of a person’s conditions of employment or in the establishment of categories or classes of employment (section 16) and that an employer must, without discrimination, provide equal salary or wages for equivalent work (section 19). In April 2011, Arbitrator Harvey Frumkin, faced with two grievances filed by the Union, concluded that such changes did not violate these legislative provisions. In December 2012, the Superior Court of Quebec dismissed the Union’s motion for judicial review. On May 27, 2015, the Court of Appeal of Quebec dismissed the Union’s appeal.2. THE FACTS In November 2002, Groupe Pages Jaunes Cie (the “Employer”), which until then was a subsidiary of Bell Canada, became an independent public corporation. At the time the transaction took place, the 200 employees represented by the Union were participating in a defined benefit pension plan as well as a benefit program in which the employees of Bell Canada also participated. It was then agreed that the employees of the Employer would continue to receive these benefits until July 1, 2005, at the latest, at which time the Employer would be required to have implemented its own benefit plans. The Employer and the Union signed a first collective agreement on May 28, 2004, which was in effect from January 1, 2003 to June 30, 2005. One of the letters of agreement included in this first collective agreement provided for an undertaking that the Employer maintain the benefits set out in some specifically listed plans, including the pension plan and the health insurance plan, for the duration of the collective agreement. This letter of agreement also stipulated that the Employer would not modify the benefits provided under these plans without the consent of the Union, who could not refuse to provide such consent without a valid reason (the “Letter of Agreement”). In March 2005, the Employer met with the Union to present both the benefit programs and the pension plan it intended to implement beginning on July 1, 2005. Among the main modifications proposed by the Employer to the Union were the following: Employees hired on or after July 1, 2005 will no longer receive benefits upon retirement; Employees hired on or after January 1, 2006 will be enrolled in a defined contribution pension plan rather than a defined benefit plan (hereinafter referred to as the “Modifications”). Following the Union’s refusal to accept the Modifications, the Employer decided nevertheless to move forward with its plans. The Union subsequently filed two grievances, which were dealt with by Arbitrator Frumkin. THE DECISION OF ARBITRATOR FRUMKIN Arbitrator Frumkin concluded that the Union had no “valid reason” to oppose the Modifications. According to him, the new employees covered by the Modifications did not benefit from the protection of the Letter of Agreement. For the arbitrator, the meaning and scope of the Letter of Agreement were clear: the purpose was to ensure that the benefits that the employees had, up until that point, been entitled to under the plans specifically listed would not be modified to their detriment. He added that in light of the context in which the Letter of Agreement was signed, the Employer’s undertaking to preserve the status quo had to be interpreted restrictively. Given the Employer’s situation and the circumstances that preceded that situation, the Union could not reasonably expect that the Employer’s undertaking could be interpreted as also protecting future employees, that is, those hired after the expiry of the first collective agreement. Accordingly, Arbitrator Frumkin was of the view that Employer’s undertaking only applied to employees already employed at the time the collective agreement was signed in May of 2004 and those hired during the term of the collective agreement, that is, prior to July 1, 2005. The arbitrator also dismissed the Union’s argument that, contrary to section 87.1 of the ARLS, this amounted to a disparity of treatment solely based on hiring date. According to the Union, an employee’s pension plan and benefits are included in the concept of “salary”. Section 87.1 ARLS prohibits any disparity of treatment in respect of an employee’s salary which is based solely on one’s hiring date. The first paragraph of section 87.1 ARLS reads as follows: 87.1. No agreement or decree may, with respect to a matter covered by a labour standard that is prescribed by Divisions I to V.1, VI and VII of this chapter and is applicable to an employee, operate to apply to the employee, solely on the basis of the employee’s hiring date, a condition of employment less advantageous than that which is applicable to other employees performing the same tasks in the same establishment. (Emphasis added) Arbitrator Frumkin concluded that the notion of “salary” set out at section 87.1 ARLS only includes the “salary paid in cash” and not all benefits with a monetary value, such as benefits and pension plans. These benefits and pension plans form part of one’s “remuneration”, but are not encompassed by the definition set out at Section I of Chapter IV (which is entitled “Wages”). Finally, the arbitrator summarily dismissed the Union’s argument based on sections 10, 16 and 19 of the Charter as he was of the view that granting more benefits in an insurance plan to employees with more years of service on the basis of that service did not constitute illegal discrimination under the Charter. THE DECISION OF THE SUPERIOR COURT ON JUDICIAL REVIEW Before the Superior Court sitting in judicial review, the parties raised the same arguments they had made before the arbitrator. Moreover, the Union also argued that the arbitrator had violated the rules of natural justice in holding that the protection granted by the Letter of Agreement was limited to employees hired prior to July 1, 2005 despite the fact that neither of the parties had proposed such an interpretation in their arguments. The Superior Court dismissed this additional argument raised by the Union and concluded that the arbitrator had not violated the rules of natural justice. The Court also expressed the view that the arbitrator’s decision was reasoned, transparent, intelligible and rational and therefore did not justify judicial review. THE DECISION OF THE COURT OF APPEAL Madam Justice Savard, writing for the Court, dismissed all of the Union’s arguments on appeal. Regarding the Union’s argument based on the application of section 87.1 ARLS, the Court of Appeal held that the Superior Court Justice was justified in not interfering with the arbitrator’s conclusion that section 87.1 did not apply to working conditions such as benefit and pension plan entitlements. According to the Court, this conclusion of the arbitrator was reasonable. The Court of Appeal noted that, given the fact that in different contexts, the ARLS distinguishes between wages and benefits, Arbitrator Frumkin could reasonably conclude that the same principle applies for the purposes of section 87.1, which refers even more restrictively to Section I of Chapter IV. The Court also made reference to the parliamentary debates, which demonstrate a desire not to extend the protection granted in section 87.1 to pension plans and other benefits. With respect to the Union’s argument that the Modifications violated sections 10, 16 and 19 of the Charter, the Court of Appeal also held that the arbitrator’s decision to dismiss that argument was reasonable both in fact and in law. In particular, the Court held as follows: [TRANSLATION]  In the present case, the Union alleges that there is disparity of treatment based on age. In support of this argument, it refers to the report prepared by the Employer’s expert, in which we find the following passage: 096. Finally, with r espect to the evolution of the employer’s contributions, by introducing the plan only in respect of the new employees who are generally younger, the Corporation does create no harm to current employees who are older. Moreover, as mentioned by the Union, the employees who leave the Corporation prior to retirement will generally benefit from the DC plan. A significant advantage when one considers the fact that a very small percentage of current employees will spend their entire career with the same employer. […]  The Union’s evidence regarding the existence of discrimination ends there. In my opinion, such evidence is insufficient. The Employer’s report, prepared in March 2006, does not contain any data regarding the age of the employees, whether they were hired prior to or after either July 1, 2005 or even January 1, 2006. The expert expresses himself in general terms, without it being possible to identify the basis of his remarks. The file on appeal does not contain the transcript of the testimonies given before the arbitrator; as a result, I do not know whether he elaborated further on this subject. The fact that new employees may be younger does not conclusively establish the existence of discrimination based on age.  Therefore, since the evidence does not allow us to conclude that the differential treatment is the result of a form of discrimination set out in section 10, the arbitrator could reasonably conclude that there was no violation of the Charter. COMMENTS In light of these decisions, it would appear that pension plans and other benefits do not constitute “wages” for the purposes of section 87.1 ARLS and that an employer may therefore offer different programs/plans (including a defined contribution plan) to its new employees hired after a given date. With respect to the Union’s Charter argument, the arbitrator indicated that he was of the view that the distinction made between current and new employees was based on years of service and not on age and that there was no illegal discrimination. For its part, the Court of Appeal’s decision was largely based on the fact that the Union failed to prove the alleged discrimination. It remains to be seen whether, in the future, such evidence could be provided. 1 Some employers decided instead to add a defined contribution section to their defined benefit pension plans. 2 Syndicat des employées et employés professionnels et de bureau, section locale 574, SEPB, CTC-FTQ c. Groupe Pages Jaunes Cie, 2015 QCCA 918.
The Supreme Court rules on a broker’s right to a commission when no sale is concluded
Standard real estate brokerage contracts generally stipulate the obligation for the seller to pay a commission to the broker in the event that an agreement for the sale of the property occurs during the term of the brokerage contract or where the seller voluntarily prevents the free performance of the contract. It is not unusual, even in the absence of an actual sale, that real estate brokers claim the payment of the commission stipulated in the brokerage contract. Such was the situation in the case of Société en commandite Place Mullins v. Services immobiliers Diane Bisson inc.1, on which the Supreme Court of Canada recently ruled. THE FACTS In this matter, Place Mullins gave a mandate to a brokerage firm for the sale of its immovable through an exclusive brokerage contract written on a standard form of the Association des courtiers et agents immobiliers du Québec (since replaced by the Organisme d’autoréglementation du courtage immobilier du Québec). According to the terms of the brokerage contract entered into in September 2007, which are to the same effect as those in the current standard form, the obligation of Place Mullins to pay the commission to the brokerage firm was triggered, inter alia, where an “agreement to sell the immovable” was concluded during the term of the contract, or if “the seller voluntarily prevents the free performance of the contract”. A conditional promise to purchase was initially entered into between Place Mullins and Mr. Douek, the buyer, through the brokerage firm. This promise to purchase gave Mr. Douek the possibility to withdraw the promise if he was not completely satisfied with the due diligence on the immovable. The due diligence having revealed the existence of potential soil contamination, Mr. Douek withdrew from the initial promise and submitted a new offer, conditional upon Place Mullins decontaminating the property at its own expense. Place Mullins refused to do so and the sale was never concluded. The brokerage firm claimed the amount of the commission from Place Mullins despite the fact that the immovable was not sold during the term of the contract. ISSUES IN DISPUTE The dispute raised two issues, namely: Was an “agreement to sell the immovable” validly concluded within the meaning of the brokerage contract? Did Place Mullins voluntarily prevent the free performance of the brokerage contract? DECISIONS OF THE LOWER COURTS The Superior Court of Québec dismissed the claim of the brokerage firm while in a split decision; the Court of Appeal of Québec set aside this judgment and decided in favour of the brokerage firm. ANALYSIS OF THE SUPREME COURT As to the first issue, Mr. Justice Wagner, on behalf of the Supreme Court, indicated that a sale was not necessary for the broker to be entitled to the commission, since the contract provides that he is entitled to it once an “agreement to sell the immovable” is concluded. He went on to say that the wording of the clause was broad enough to encompass an accepted promise to purchase, but the obligations that flow from such a promise must become certain, that is, unconditional. The Court was of the view that so long as a promise to purchase is not unconditionally binding on the buyer and the seller and it is not yet possible for one of them to bring an action to compel transfer of title, there is no “agreement to sell the immovable”. In the case under review, since Mr. Douek was entitled to withdraw the promise if he was not entirely satisfied with the results of the due diligence, the promise to purchase remained conditional. By sending a formal notice to Place Mullins in which he was reiterating his interest to purchase the immovable provided Place Mullins decontaminated it at its own expense, Mr. Douek was repudiating the initial promise and submitting a new offer to purchase, which was never accepted. The second issue was based on the argument of the brokerage firm whereby Place Mullins, by refusing to decontaminate the immovable, prevented the brokerage contract to be performed. The Court mentioned that to be successful, the brokerage firm had to prove, among other things, that Place Mullins had committed a fault which prevented the performance of the brokerage contract. To rule on the existence of a fault, the Court reviewed to obligations to which Place Mullins was bound pursuant to the promise to purchase, on the one hand, and, on the other hand, the brokerage contract. The Court came to the conclusion that under the promise to purchase, Place Mullins had neither the obligation to decontaminate the property, nor that of negotiating anew the conditions of the initial promise to purchase. As to the brokerage contract, it is true that it stipulated that Place Mullins was required to provide an immovable which was in accordance with the environmental protection laws and regulations. However, the Court stated that this provision of the brokerage contract on its own, absent proof of bad faith, cannot serve as a basis for arguing that the seller voluntarily prevented the free performance of the contract. The Superior Court and the Court of Appeal having both recognized the good faith of Place Mullins and the fact that it was unaware of the contamination at the time the brokerage contract was entered into, it cannot be said that, through its fault, it prevented the sale from being concluded. Furthermore, the Court noted that contrary to what the brokerage firm maintained, the declarations of the seller in the brokerage contract did not constitute warranties. The legal warranties could not apply since no sale had been concluded. Under art. 1396 of the Civil Code of Québec, a promise to enter a contract is not equivalent to the proposed contract. Therefore, the accepted promise to purchase is not equivalent to the sale and does not produce any of its effects. CONCLUSION In short, Place Mullins had committed no fault respecting its obligations both under the promise to purchase and the brokerage contract. Therefore, it had not voluntarily prevented the free performance of this brokerage contract. Accordingly, the brokerage firm was not entitled to the commission. COMMENTS According to the Court, the seller was acting in good faith since it was unaware of the contamination at the time the brokerage contract was entered into. However, had it been aware of the contamination, the seller could have been considered to be in bad faith and ordered to pay the commission on the basis of the stipulation in the brokerage contract whereby it was required to provide an immovable that complied with the environmental protection laws and regulations. 1 2015 SCC 36.