Publications

Employers must review their action plan on a daily basis to promote prevention, manage possible or proven contagion among their employees and ensure that business operations continue. Two actions are key: Seeking accurate information from public health officials and governments daily; Taking this information into account when deciding how to meet your obligations to employees while maintaining operations. With the stated objective of containing the spread of the coronavirus, each of us is responsible for adapting our behaviours to an evolving set of circumstances, particularly in the workplace. This new reality impacts the responsibilities of employers. New Directives from The Government of Quebec On March 12, 2020, the province declared a state of emergency and the Quebec government announced the following: All persons returning from abroad or having flu- or cold-like symptoms must voluntarily self-isolate for 14 days; Self-isolation is mandatory and paid for all public service employees and all private and public healthcare, education and daycare workers returning from abroad; Organizations must cancel all indoor gatherings of more than 250 people and any unnecessary gatherings for the next 30 days1. At his press conference, the Premier of Quebec invited private sector employers to take the particular situation facing our society into consideration and to be understanding with employees who must take time off work2. With these measures aimed particularly at establishing social distance to slow the spread of the virus, guidelines have been clarified and may serve as a basis for the needs and requirements of both employers and their employees, taking into account the particularities of each workplace. Obligations in the Workplace Employers must take the measures necessary to protect the health, safety and physical well-being of their employees, their clients and the public. Employees are held to the same standards; that is, to preserve their own health as well as that of their colleagues and any third parties they may be in contact with in the course of or in connection with their work. The Charter of Human Rights and Freedoms, the Act Respecting Occupational Health and Safety, the Canada Labour Code and fundamental principles such as those set out in the Civil Code of Québec provide that individuals must not behave in a way that would cause increased harm to others. They must also act in such a way as not to harm their own health, and, by the same token, that of the people in their workplace. These principles are well known to human resource managers and are foundational to establishing workplace policies and guidelines. Policies and Guidelines for Employees In order to encourage employees to contribute to maintaining a healthy work environment free from contamination risks, employers should diligently inform their employees of their intention to follow government guidelines. Internal guidelines could include the following: Cancelling meetings or other non-essential work events that may promote the spread of the virus; Reminding employees of their obligation to report any situation that may require them to self-isolate; Establishing and informing employees of necessary arrangements should isolation become necessary and telework not be possible; Explaining the steps to follow to plan telework and reminding people of the applicable rules under existing policies and employment contracts regarding the confidentiality of business or personal information used in the workplace; Informing employees about of a contingency plan to define, among other things, emergency contact persons and information transmission protocols; and instructing employees on how to access workplace premises or organize their work in the event of a containment situation. Employee Travel and Professional Activities An employer may cancel any professional activity that could reasonably be expected to pose a risk to the health of its employees, clients or the public. In so doing, an organization modifies its expectations as to workplace deliverables. In the current context and further to the government guidelines issued on March 12, 2020, an employer should: Prohibit all business travel both to affected or unaffected areas; Ask its employees to hold essential meetings by videoconference or other technological means; Provide that any other meeting or professional activity in its offices or elsewhere be held in such a way as to reduce the risk of contagion (e.g., videoconferencing, conference calls, observance of hygiene measures and reasonable distances between people). Isolation of Diagnosed Employees or Preventive Isolation Further to the recommendations of public health authorities and on the basis of the government guidelines issued on March 12, 2020, an employer should require that any employee returning from abroad proceed to self-isolate for 14 days. If the employee shows symptoms before the end of the 14-day isolation period, he or she should contact the services set up by the Ministère de la Santé (1-877-644-4545). A nurse may then refer the employee to a designated COVID-19 clinic if necessary. Prior to permitting such an employee to return to work, an employer should be informed of the outcome of these steps and be satisfied that the employee will not pose a risk to colleagues and clients, which may include requesting a medical certificate from the designated COVID-19 clinic if the employee was referred to one. In the case of business travel at an employer’s request prior to the government directives issued on March 12, 2020, any self-isolation period should be paid. If the travel was personal, the payment and form of remuneration during the self-isolation period depends on certain factors, including: At what moment the decision to maintain the departure was made: before or after the government’s instructions were issued or an explicit employer policy was implemented; Positive or negative diagnosis further to a test; Capacity for telework while in isolation. Should employees be unable to report to work (due to their return from abroad, other reasonable grounds to believe that they may be a carrier, or if they or one of their relatives has tested positive), their employer should consider possible avenues under the employment conditions applicable to each particular employee: Paid leave or other conditions available under the Act respecting labour standards and working conditions or collective agreements in the organization, which must then be agreed upon with the employee in question and with the union’s cooperation, if applicable3; Group disability insurance benefits; Record of Employment for sickness and employment insurance sickness benefits; Quarantine and employment insurance benefits as a result of forced leave from work4; Record of Employment for leave and caregiving benefits; Telework if the employee’s tasks can be performed remotely or adapted to do so. Refusal to work The Act Respecting Occupational Health and Safety allows employees to refuse to perform work if they have reasonable grounds to believe that the performance of said work would expose them to danger for their health, safety or physical wellbeing, or would expose another person to similar danger. This Act also provides for the process by which such refusal must be dealt with. However, the prevention and management of work refusal situations could likely be greatly facilitated if employees are aware of the actions taken by the employer to prevent contamination and other health risks to those present in the workplace. For the protection of employees, suppliers and customers, employers must implement the sanitation measures prescribed by government authorities and make any necessary materials available. It must also encourage its employees to follow sanitation instructions and do the following: Provide access to dispensers for alcohol-based antiseptics, tissues and waste bins; Regularly clean common areas (e.g. meeting rooms, cafeteria, etc.); Provide contact information for Info-Santé and the Ministère de la Santé for additional information or screening. According to the government guidelines issued on March 12, 2020, for work premises that can accommodate 250 or more people, the premises must be prepared, or the number of people limited, or those present must be instructed to remain at least two metres away from each other. Work reorganization In order to maintain their activities and provide service to their clientele, some businesses may find it advantageous to alter the way in which their employees work. In addition to resorting to telework, employers may consider alternative working arrangements to maintain adequate staffing while reducing the risk of spreading the virus: Flexible or modified work schedules or staggered working hours (in accordance with the conditions set out in section 53 of the Act respecting labour standards); Rotating schedules to reduce the number of employees in the workplace at the same time; Solicitation of retirees who can fill absences owing to sickness. Immigration Currently, Canadian immigration authorities have put in place emergency measures for foreign nationals in Canada or abroad whose applications for temporary residence have been delayed because of the closure of Canadian visa application centres in mainland China (among other locations). Extensions have been granted to help applicants to obtain now hard-to-get documents. All other applications and all other components of the Canadian program are not affected at this time. No new medical tests for newcomers have been announced and no specific travel restrictions have yet been adopted, with the exception of self-isolation measures for all those arriving from abroad. Health Canada screening officers are present at some Canadian air and land ports of entry, but this measure is still minimally applied at this time. We expect further restrictions at Canadian ports of entry to be implemented in the coming days as the situation progresses. The Key: Keep your Information Up to Date It is important to make sure that the information that you rely on as an employer to make decisions in the current environment is reliable so that your employees can perform their work safely, and for you to continue offering service to your clients. Prudent HR managers should visit the websites of the competent government authorities to confirm the exact terms of the requirements and guidance that these provide. Each workplace operates in its own context, and employers would do well to plan for various possible solutions depending on their circumstances and considering their specific workforce and the needs of their clientele. The events of the last few days have shown that guidelines can change rapidly (even in the course of a day), especially when the spread of the coronavirus suddenly gains speed or following the directives issued by governments to promote “social distancing” as counter the impacts of a possible mass contamination. The diligent implementation of preventive measures and appropriate action as the situation evolves will help ensure, employers are being responsible while, effectively guarding against future civil or criminal claims. The members of our Labour and Employment and Business Immigration teams are available to answer any questions you may have about measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Press release on March 12, 2020. See the same Government of Quebec press release. Employee and union cooperation may be necessary if working conditions need to be adjusted at the employer’s request, which may wish to offer paid leave to cover part of the isolation period. The federal government recently amended the conditions applicable to quarantine to suspend the one-week waiting period before Employment Insurance benefits are paid..

The new Regulation Respecting Immigration to Québec (“RIQ”), the purpose of which includes fostering the participation of immigrants in the development of Quebec and alleviating the labour shortage currently experienced by many employers in the region, came into force on August 2nd, 2018. The Regulation makes major changes to a number of programs of the Ministère de l’Immigration, de la Diversité et de l’Inclusion (“MIDI”) of Quebec. Previously, the Regular Skilled Workers Program (RSWP), known as the regular process for submitting applications for a Certificat de Sélection du Québec (“CSQ”, Quebec selection certificate), allowed eligible applicants in Quebec to submit a CSQ application at any time. Candidates outside Canada could submit their applications during the application intake period until the quota was reached. Henceforth, it will not be possible to submit a CSQ application under the regular process without first being invited by MIDI to do so. The Regulation Respecting Immigration to Québec establishes a “Declaration of Interest” system under which interested applicants must submit a declaration of interest form and wait to receive an invitation from MIDI before submitting a CSQ application. In addition, priority will be given to applicants who want to settle outside the Montreal metropolitan region and applicants who have a job offer validated by MIDI. The Quebec experience program (“PEQ”, Programme de l’expérience québécoise), a “simplified” program that also leads to the CSQ, has been changed substantially as well. A holder of an open work permit obtained as an accompanying spouse or common-law partner may now apply as the principal applicant in a CSQ application submitted under the PEQ. In addition, the PEQ no longer imposes any requirement regarding the position’s level of specialization. Before August 2nd, 2018, the applicant must have held full-time qualified employment in category 0, A or B of the National Occupational Classification (NOC) for 12 months. Under the new regulation, MIDI will now accept applications from candidates who have held positions in NOC categories C and D.1 MIDI’s investor and entrepreneur programs have also undergone significant changes. For example, the amount of the investment required in the investor program has been raised from $1,200,000 to $2,000,000 and the assets needed have risen from $800,000 to $1,200,000. For the entrepreneur program, there are now two components: the creation of innovative businesses and the creation and acquisition of small and medium-sized businesses in Quebec. Please do not hesitate to contact us if you have questions about the new RIQ, the programs referred to above or the programs’ specific requirements.   The NOC is a tool that that classifies and categorizes occupations in the Canadian labour market. Category 0 corresponds to managers, category A usually requires university education, and category B generally requires college education or apprenticeship training. The least specialized categories are C and D: category C requires secondary school and/or occupation-specific training and category D usually calls for on-the-job training.  

In November 2016, the federal government announced the launch of a Global Skills Strategy (the "Strategy"), with the goal of stimulating Canada’s economic growth and, as a result, increasing employment opportunities for all Canadians. On June 12, 2017, in order to maximize the positive impact of the Strategy, the government launched a two-year pilot project, the Global Talent Stream (the "Stream") designed to encourage and facilitate the migration of highly specialized workers towards Canada. As part of the pilot project, Canadian businesses qualifying under one of the two following categories may benefit from the newly announced measures: Category A: This category is intended for businesses selected and referred by one of Employment and Social Development Canada (“ESDC”)’s designated partners.1 Employers are selected because they are innovative and have succeeded in demonstrating their willingness to hire highly specialized foreign workers with unique skills sets. This specialization is usually illustrated in the candidate through advanced knowledge of the industry in which the employer operates, an advanced degree in a related area of specialization and/ or a minimum of five years of experience in the relevant field, as well as a high salary (usually over $80,000). Category B: Employers will also be eligible if they are looking to recruit highly skilled workers to fill certain positions specifically set out in the Global Talent Occupations List.2 It is worth noting that these positions are mostly in the information technology sector (software engineers and designers, computer engineers, computer programmers and interactive media developers, web designers and developers, etc.) Employers who qualify under one of the above-mentioned categories are required to develop an initial “Labour Market Benefits Plan”, in active collaboration with ESDC, the purpose of which is to assess the employer’s commitment to growing the Canadian labour market. For example, Category A employers will have the obligation to create employment opportunities for Canadian citizens and permanent residents, whereas Category B Employers will have to commit to investing in training activities for Canadian citizens and permanent residents. These mandatory benefits must be complemented by two additional commitments, which will be chosen by the employer, at its discretion and in collaboration with ESDC. Applications for registration in the Global Talent Stream shall be processed within a standard timeline of ten business days from the moment the application is received by a new special-purpose team created by ESDC. It should be noted that each application involves a processing fee of $1,000 per position requested, which fee is payable by the employer. Once his or her employer is accepted into the Stream in accordance with the above requirements, a foreign worker submitting an online work permit application from outside the country will benefit from a fast track processing period of two weeks. The Stream shall thus significantly reduce processing times for the issuance of temporary work permits, which can currently run over periods of several months between the filing of the application and the issuance of the work permit when proceeding by way of a Labour Market Impact Assessment (“LMIA”), which will certainly benefit growing technology sector companies in Canada. Another aspect of the Strategy is to establish a shortened two-week standard processing period for foreign nationals applying to fill an executive or managerial (class 0) or professional (class A) position, within the meaning of the National Occupational Classification (“NOC”), under the “International Mobility Program”. This applies when the worker can benefit from an exemption to the LMIA requirement and his or her employer has submitted an online offer of employment through the Employer Portal. For instance, intra-company transferees and eligible professionals under the North American Free Trade Agreement (NAFTA) will be able to benefit from this expedited processing. Moreover, the foreign worker’s spouse/common-law partner and dependents submitting their applications at the same time as the foreign worker will also benefit from fast track processing of their applications. On the other hand, businesses looking to make significant, job-creating investments in Canada, as well as certain universities, will be able to benefit from a Dedicated Service Channel (the “DSC”). This DSC will provide the assistance of an account manager in the determination of needs and strategic orientations. Again, in order to be eligible to the DSC, the company must have been selected and referred by one of the designated DSC referral partners3. Work permit exemptions for short stays Finally, new exemptions were announced in regards to short-term work permits. First, highly skilled workers seeking an executive or managerial (NOC 0) or professional (NOC A) position shall be exempted from the work permit requirement if they intend on coming to Canada for a period of no more than 15 days, once every six months, or 30 days, once every twelve months. The same applies to researchers coming to Canada for a period not exceeding 120 days, once a year, to partake in a research project in a publicly-funded degree granting post-secondary institution or affiliated research institution. It should be noted, however, that the temporary worker or researcher may not divide up his or her stay, inasmuch as the reference here is to consecutive calendar days. While these new changes have been welcomed with great enthusiasm across the country, several questions remain unanswered in regards to their implementation, particularly in Québec, due to the separation of powers in the field of immigration and the lack of designated partners in the province. Therefore, it will be necessary to keep an eye on the additional information to be disclosed by the various governmental bodies in order to assess the real impact of the new measures brought about by the Global Skills Strategy. To be continued... A list of these partners is available on the Government of Canada website. This list can also be found on the Government of Canada website. A list of these partners is available on the Government of Canada website.

The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and increased economic growth. The 2017 Budget proposes to provide renewed and enhanced funding of $35 million over five years, beginning in 2017–2018 to the Canadian Institute for Advanced Research (CIFAR) which connects Canadian researchers with collaborative research networks led by eminent Canadian and international researchers on topics including artificial intelligence and deep learning. These measures are in addition to a number of interesting tax measures that support the artificial intelligence sector at both the federal and provincial levels. In Canada and in Québec, the Scientific Research and Experimental Development (SR&ED) Program provides a twofold benefit: SR&ED expenses are deductible from income for tax purposes and a SR&ED investment tax credit (ITC) for SR&ED is available to reduce income tax. In some cases, the remaining ITC can be refunded. In Québec, a refundable tax credit is also available for the development of e-business, where a corporation mainly operates in the field of computer system design or that of software edition and its activities are carried out in an establishment located in Québec. This 2017 Budget aims to improve the competitive and strategic advantage of Canada in the field of artificial intelligence, and, therefore, that of Montréal, a city already enjoying an international reputation in this field. It recognises that artificial intelligence, despite the debates over ethical issues that currently stir up passions within the international community, could help generate strong economic growth, by improving the way in which we produce goods, deliver services and tackle all kinds of social challenges. The Budget also adds that artificial intelligence “opens up possibilities across many sectors, from agriculture to financial services, creating opportunities for companies of all sizes, whether technology start-ups or Canada’s largest financial institutions”. This influence of Canada on the international scene cannot be achieved without government supporting research programs and our universities contributing their expertise. This Budget is therefore a step in the right direction to ensure that all the activities related to artificial intelligence, from R&D to marketing, as well as design and distributions, remain here in Canada. The 2017 budget provides $125 million to launch a Pan-Canadian Artificial Intelligence Strategy for research and talent to promote collaboration between Canada’s main centres of expertise and reinforce Canada’s position as a leading destination for companies seeking to invest in artificial intelligence and innovation. Lavery Legal Lab on Artificial Intelligence (L3AI) We anticipate that within a few years, all companies, businesses and organizations, in every sector and industry, will use some form of artificial intelligence in their day-to-day operations to improve productivity or efficiency, ensure better quality control, conquer new markets and customers, implement new marketing strategies, as well as improve processes, automation and marketing or the profitability of operations. For this reason, Lavery created the Lavery Legal Lab on Artificial Intelligence (L3AI) to analyze and monitor recent and anticipated developments in artificial intelligence from a legal perspective. Our Lab is interested in all projects pertaining to artificial intelligence (AI) and their legal peculiarities, particularly the various branches and applications of artificial intelligence which will rapidly appear in companies and industries. The development of artificial intelligence, through a broad spectrum of branches and applications, will also have an impact on many legal sectors and practices, from intellectual property to protection of personal information, including corporate and business integrity and all fields of business law. In our following publications, the members of our Lavery Legal Lab on Artificial Intelligence (L3AI) will more specifically analyze certain applications of artificial intelligence in various sectors and industries.

Employment Conditions of Foreign Workers Share Ownership : an Overview Certificate of Intellectual Property Pertaining to Software

Major Reform to Quebec Corporate Law Contesting Property Assessment Basic Notions About Foreign Workers or Business Immigration 101