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Packed with valuable information, our publications help you stay in touch with the latest developments in the fields of law affecting you, whatever your sector of activity. Our professionals are committed to keeping you informed of breaking legal news through their analysis of recent judgments, amendments, laws, and regulations.

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  • Ten things you should know about the amendments to Quebec’s Charter of the French language

    Quebec recently enacted Bill 96, entitled An Act respecting French, the official and common language of Québec, which aims to overhaul the Charter of the French language. Here are 10 key changes in this law that will impose significant obligations on businesses: As of June 1, 2025, businesses employing more than 25 people (currently the threshold is 50 people) for at least six months will be required to comply with various “francization”1 obligations. Businesses with between 25 and 99 employees may also be ordered by the Office québécois de la langue française (the OQLF)2 to form a francization committee. In addition, at the request of the OQLF, businesses may have to provide a francization program for review within three months. As of June 1, 2025, only trademarks registered in a language other than French (and for which no French version has been filed or registered) will be accepted as an exception to the general principle that trademarks must be translated into French. Unregistered trademarks that are not in French must be accompanied by their French equivalent. The rule is the same for products as well as their labelling and packaging; any writing must be in French. The French text may be accompanied by a translation or translations, but no text in another language may be given greater prominence than the text in French or be made available on more favourable terms. However, as of June 1, 2025, generic or descriptive terms included in a trademark registered in a language other than French (for which no French version has been registered) must be translated into French. In addition, as of June 1, 2025, on public signs and posters visible from outside the premises, (i) French must be markedly predominant (rather than being sufficiently present) and (ii) the display of trademarks that are not in French (for which no French version has been registered) will be limited to registered trademarks. As of June 1, 2022, businesses that offer goods or services to consumers must respect their right to be informed and served in French. In the event of breaches of this obligation, consumers have the right to file a complaint with the OQLF or to request an injunction unless the business has fewer than five employees. In addition, any legal person or company that provides services to the civil administration3 will be required to provide these services in French, including when the services are intended for the public. As of June 1, 2022, subject to certain criteria provided for in the bill, employers are required to draw up the following written documents in French: individual employment contracts4 and communications addressed to a worker or to an association of workers, including communications following the end of the employment relationship with an employee. In addition, other documents such as job application forms, documents relating to working conditions and training documents must be made available in French.5 As of June 1, 2022, employers who wish to require employees to have a certain level of proficiency in a language other than French in order to obtain a position must demonstrate that this requirement is necessary for the performance of the duties related to the position, that it is impossible to proceed using internal resources and that they have made efforts to limit the number of positions in their company requiring knowledge of a language other than French as much as possible. As of June 1, 2023, parties wishing to enter into a consumer contract in a language other than French, or, subject to various exceptions,6 a contract of adhesion that is not a consumer contract, must have received a French version of the contract before agreeing to it. Otherwise, a party can demand that the contract be cancelled without it being necessary to prove harm. As of June 1, 2023, the civil administration will be prohibited from entering into a contract with or granting a subsidy to a business that employs 25 or more people and that does not comply with the following obligations on the use of the French language: obtaining a certificate of registration, sending the OQLF an analysis of the language situation in the business within the time prescribed, or obtaining an attestation of implementation of a francization program or a francization certificate, depending on the case. As of June 1, 2023, all contracts and agreements entered into by the civil administration, as well as all written documents sent to an agency of the civil administration by a legal person or by a business to obtain a permit, an authorization or a subsidy or other form of financial assistance must be drawn up exclusively in French. As of September 1, 2022, a certified French translation must be attached to motions and other pleadings drawn up in English that emanate from a business or legal person that is a party to a pleading in Quebec. The legal person will bear the translation costs. The application of the provisions imposing this obligation has, however, been suspended for the time being by the Superior Court.7 As of September 1, 2022, registrations in the Register of Personal and Movable Real Rights and in the Land Registry Office, in particular registrations of securities, deeds of sale, leases and various other rights, must be made in French. Note that declarations of co-ownership must be filed at the Land Registry Office in French as of June 1, 2022. The lawyers at Lavery know Quebec’s language laws and can help you understand the impact of Bill 96 on your business, as well as inform you of the steps to take to meet these new obligations. Please do not hesitate to contact one of the Lavery team members named in this article for assistance. “Francization” refers to a process established by the Charter of the French language to ensure the generalized use of French in businesses. The OQLF is the regulatory body responsible for enforcing the Charter of the French language. The civil administration in this law includes any public body in the broad sense of the term. An employee who signed an individual employment contract before June 1, 2022, will have until June 1, 2023, to ask their employer to provide them with a French translation if the employee so wishes. If the individual employment contract is a fixed-term employment contract that ends before June 1, 2024, the employer is not obliged to have it translated into French at the request of the employee. Employers have until June 1, 2023, to have job application forms, documents related to work conditions and training documents translated into French if these are not already available to employees in French. Among these exceptions are employment contracts, loan contracts and contracts used in “relations with persons outside Quebec.” There seems to be a contradiction in the law with regard to individual employment contracts which are contracts of adhesion and for which the obligation to provide a French translation nevertheless seems to apply. Mitchell c. Procureur général du Québec, 2022 QCCS 2983.

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  • 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.

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  • A False Sense of Cybersecurity?

    Ransomware has wreaked so much havoc in recent years that many people forget about other cybersecurity risks. For some, not storing personal information makes them feeling immune to hackers and cyber incidents. For others, as long as their computers are working, they do not feel exposed to no malware. Unfortunately, the reality is quite different. A new trend is emerging: malware is being released to collect confidential information, including trade secrets, and then such information is being sold to third parties or released to the public.1 The Pegasus software used to spy on journalists and political opponents around the world has been widely discussed in the media, to the point that U.S. authorities decided to include it on their trade blacklist.2 However, the use of spyware is not limited to the political sphere. Recently, a California court ordered a U.S. corporation, 24[7].ai, to pay $30 million to one of its competitors, Liveperson.3 This is because 24[7].ai installed competing technology on mutual client websites where LivePerson’s technology already is installed. Liveperson alleged in its lawsuit that 24[7].ai installed spyware that gathered confidential and proprietary information and data regarding Liveperson’s technology and client relationships. In addition, the software which 24[7].ai allegedly installed removed some features of Liveperson’s technology, including the “chat” button. In doing so, 24[7].ai interfered in the relationship between Liveperson and its clients. This legal saga is ongoing, as another trial is scheduled to take place regarding trade secrets related to a Liveperson client.4 This legal dispute illustrates that cybersecurity is not only about personal information, but also about trade secrets and even the proper functioning of business software. A number of precautions can be taken to reduce the risk of cybersecurity incidents. Robust internal policies at all levels of the business help maintain a safe framework for business operations. Combined with employee awareness of the legal and business issues surrounding cybersecurity, these policies can be important additions to IT best practices. In addition, employee awareness facilitates the adoption of best practices, including systematic investigations of performance anomalies and the use of programming methods that protect trade secrets. Moreover, it may be advisable to ensure that contracts with clients provide IT suppliers with sufficient access to conduct  the necessary monitoring for the security of both parties. Ultimately, it is important to remember that the board of directors must exercise its duty with care, diligence and skill while looking out for the best interests of the business. Directors could be held personally liable if they fail to meet their obligation to ensure that adequate measures are implemented to prevent cyber incidents or if they ignore the risks and are wilfully blind. Thus, board members must be vigilant, be trained in and aware of cybersecurity in order to integrate it into their risk management approach. In an era in which intellectual property has become a corporation’s most important asset, it goes without saying that it is essential to put in place not only the technological tools, but also the procedures and policies required to adequately protect it! Contact Lavery for advice on the legal aspects of cybersecurity. See Page, Carly, “This new Android spyware masquerades as legitimate apps,” Techcrunch, November 10, 2021. https://techcrunch.com/2021/11/10/android-spyware-legitimate-apps; Page, Carly, “FBI says ransomware groups are using private financial information to further extort victims,” Techcrunch, November 2, 2021. https://techcrunch.com/2021/11/02/fbi-ransomware-private-financial-extort. Gardner, Frank, “NSO Group: Israeli spyware company added to US trade blacklist,” BBC News, November 3, 2021. https://www.bbc.com/news/technology-59149651. Claburn, Thomas, “Spyware, trade-secret theft, and $30m in damages: How two online support partners spectacularly fell out,” The Register,June 18, 2021. https://www.theregister.com/2021/06/18/liveperson_wins_30m_trade_secret. Brittain, Blake, “LivePerson wins $30 million from [24]7.ai in trade-secret verdict,”Reuters, June 17, 2021. https://www.reuters.com/legal/transactional/liveperson-wins-30-million-247ai-trade-secret-verdict-2021-06-17.

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  • Adoption of Bill 64: what do public bodies need to know?

    Bill 64, also known as the Act to modernize legislative provisions as regards the protection of personal information, was adopted on September 21, 2021, by the National Assembly of Québec. This new bill amends some 20 laws relating to the protection of personal information, including the Act respecting Access to documents held by public bodies and the Protection of personal information ("Access Act"), the Act respecting the protection of personal information in the private sector (“ARPIPS”) and the Act to establish a legal framework for information technology (“AELFIT”). While these changes will affect both public bodies and private businesses, this article focuses exclusively on the new requirements for public bodies covered by the Access Act.  We have prepared an amended version of the Access Act in order to reflect the exact changes brought about by Bill 64. 1. Strengthening consent mechanisms and increasing individual control over personal information By way of Bill 64, some important changes were made to the notion of consent when disclosing personal information to public bodies. From now on, any time an individual’s consent is required by the Access Act, public bodies must ensure that the concerned individual’s consent is given separately from any other disclosed information (s. 53.1). Furthermore, any consent to the collection of sensitive personal information (e.g., health or financial information that gives rise to a reasonable expectation of privacy) will have to be expressly obtained from the data subject (s. 59). The amended Access Act now also provides that minors under the age of 14 must have a parent or a guardian consent to the collection of their personal information. For minors over the age of 14, consent can be given either directly by the minor or by their parent or guardian (s. 53.1). The right to data portability is one of the new rights enforced by Bill 64. These added provisions to the Access Act allow data subjects to obtain data that a public body holds on them in a structured and commonly used technological format and to demand that this data be released to a third party (s. 84). Whenever a public body renders a decision based exclusively on automated processing of personal information, the affected individual must be informed of this process. If the decision produces legal effects or otherwise affects the individual concerned, upon request, the public body must also disclose to the individual (i) the personal information used in reaching the decision, (ii) the reasons and main factors leading to the decision, and (iii) the individual’s right to have this personal information rectified (s. 65.2).  Furthermore, public bodies that use technology to identify, locate or profile an individual must now inform the affected individual of the use of such technology and the means that are available to them in order to disable such functions (s. 65.0.1). 2. New personal data protection mechanisms Public bodies will now be required to conduct a privacy impact assessment whenever they seek to implement or update any information system that involves the collection, use, disclosure, retention or destruction of personal data (s. 63.5). This obligation will effectively compel public bodies to consider the privacy and personal information protection risks involved in a certain project at its outset. In fact, the Access Act now states that every public body must create an access to information committee, whose responsibilities will include offering their observations in such circumstances. 3. Promoting transparency and accountability for public bodies The changes brought about by Bill 64 also aim to increase the transparency of processes employed by public bodies in collecting and using personal data, as well as placing an emphasis on accountability. As such, public bodies will now have to publish on their websites the rules that govern their handling of personal data in clear and simple language (s. 63.3). These rules may take the form of a policy, directive or guide and must set out the various responsibilities of staff members with respect to personal information. Training and awareness programs for staff should also be listed. Any public body that collects personal information through technological means will likewise be required to publish a privacy policy on their website. The policy will have to be drafted in clear and simple language (s. 63.4). The government may eventually adopt regulations to specify the required content of such privacy policies. Moving forward, public bodies will also have to inform data subjects of any personal data transfer outside of the province of Quebec (s. 65). Any such transfer will also need to undergo a privacy impact assessment, which will include an analysis of the legal framework applicable in the State where the personal information will be transferred (s. 70.1). Furthermore, any transfer of personal data outside of Quebec must be subject to a written agreement that takes into account, in particular, the results of the privacy impact assessment and, if applicable, the agreed-upon terms to mitigate the risks identified in the assessment (s. 70.1). A public body that wishes to entrust a person or body outside of Quebec with the task of collecting, using, communicating or retaining personal information on its behalf will have to undertake a similar exercise (s. 70.1 (3)). 4. Managing confidentiality incidents Where a public body has reason to believe that a confidentiality incident (which is defined in Bill 64 as the access, use, disclosure or loss of personal information) has occurred, public bodies will be required to take reasonable steps to mitigate the injury caused to the affected individuals and to reduce the risk of further confidentiality incidents occurring in the future (s. 63.7). In addition, where the confidentiality incident poses a risk of serious harm to the affected individuals, these individuals and the Commission d’accès à l’information (“CAI”) must be notified (unless doing so would interfere with an investigation to prevent, detect or suppress crime or violations of law) (s. 63.7). Public bodies must now also keep a register of confidentiality incidents (s. 63.10), a copy of which must be sent to the CAI upon request. 5. Increased powers for the CAI Bill 64 also grants the CAI an arsenal of new powers aiming to ensure that public bodies, as well as private companies, comply with privacy laws. For example, in the event of a confidentiality incident, the CAI may order any public body to take appropriate action to protect the rights of affected individuals, after allowing the public body to make representations (s. 127.2). Furthermore, the CAI now has the power to impose substantial administrative monetary penalties, the value of which may reach up to $150,000 for public bodies (s. 159). In the event of repeat offences, fines will be doubled (s. 164.1). 6. Coming into force The amendments made by Bill 64 will come into force in several stages. Most of the new provisions of the Access Act [DM1] will come into force two years after the date of assent, which was granted on September 22, 2021. However, some specific provisions will take effect one year after that date, including: The requirements regarding actions to be taken in response to confidentiality incidents (s. 63.7) and the powers of the CAI upon disclosure by an organization of a confidentiality incident (s. 137.2); and The exception to disclosure without consent for research purposes (s. 67.2.1). Conclusion The clock is now ticking for public bodies to implement the necessary changes in order to comply with the new privacy requirements outlined in Bill 64, which received official assent on September 22, 2021. We invite you to consult our privacy specialists to help ensure proper compliance with the new requirements of the updated Access Act. The Lavery team would be more than pleased to answer any questions you may have regarding the upcoming changes and the potential impacts on your org

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  • Amendments to Privacy Laws: What Businesses Need to Know

    Bill 64, also known as the Act to modernize legislative provisions respecting the protection of personal information, was adopted on September 21, 2021, by the National Assembly of Québec. It amends some 20 laws relating to the protection of personal information, including the Act respecting access to documents held by public bodies ("Access Act"), the Act respecting the protection of personal information in the private sector ("Private Sector Act") and the Act respecting the legal framework for information technology. While the changes will affect both public bodies and private businesses, this publication will focus on providing an overview of the new requirements for private businesses covered by the Private Sector Act. We have prepared an amended version of the Private Sector Act in order to reflect the exact changes brought about by Bill 64. Essentially, the amended Private Sector Act aims to give individuals greater control over their personal information and promote the protection of personal information by making businesses more accountable and introducing new mechanisms to ensure compliance with Québec’s privacy rules. The following is a summary of the main amendments adopted by the legislator and the new requirements imposed on businesses in this area. It is important to note that, for the most part, the new privacy regime will come into effect in two years. 1. Increasing transparency and individual control over personal information The new Private Sector Act establishes the right of individuals to access information about themselves collected by businesses in a structured and commonly used technological format. Data subjects will now also be able to require a business to disclose such information to a third party, as long as the information was not “created or inferred” by the business (s. 27). This right is commonly referred to as the “right to data portability.” Businesses now have an obligation to destroy personal information once the purposes for which it was collected or used have been fulfilled. Alternatively, businesses may anonymize personal information in accordance with generally accepted best practices in order to use it for meaningful and legitimate purposes (s. 23). However, it is important that the identity of concerned individuals can never again be inferred from the retained information. This is a significant change for private businesses which, under the current law, can still retain personal information that has lapsed. In addition, Bill 64 provides individuals with a right to “de-indexation.” In other words, businesses will now have to de-index any hyperlink that leads to an individual’s personal information where dissemination of such personal information goes against the law or a court order (s. 28.1). Additionally, whenever a business uses personal information to render a decision based exclusively on an automated processing of such information, it must inform the concerned individual of the process at the latest when the decision is made (s. 12.1). The individual must likewise be made aware of their right to have the information rectified (s. 12.1). Bill 64 provides that the release and use of nominative lists by a private company for commercial or philanthropic prospecting purposes are now subject to the consent of concerned data subjects. Furthermore, in an effort to increase transparency, businesses will now be required to publish their rules of governance with respect to personal information in simple and clear terms on their website (s. 3.2). These rules may take the form of a policy, directive or guide and must, among other things, set out the various responsibilities of staff members with respect to personal information. In addition, businesses that collect personal information through technology will also be required to adopt and publish a privacy policy in plain language on their website when they collect personal information (s. 8.2). The amended Private Sector Act further provides that businesses that refuse access to information requests, in addition to giving reasons for their refusal and indicating the relevant sections of the Act, must now assist applicants in understanding why their request was denied when asked to (s. 34). 2. Promoting privacy and corporate accountability Bill 64 aims to make businesses more accountable for the protection of personal information, as exemplified by the new requirement for businesses to appoint a Chief Privacy Officer within their organization. By default, the role will fall upon the most senior person in the organization (s. 3.1). In addition, businesses will be required to conduct privacy impact assessments (“PIA”) for any information system acquisition, development or redesign project involving the collection, use, disclosure, retention or destruction of personal information (s. 3.3). This obligation forces businesses to consider the privacy and personal information protection risks involved in a project at its outset. The PIA must be proportionate to the sensitivity of the information involved, the purpose for which it is to be used, its quantity, distribution and medium (s. 3.3). Businesses will likewise be required to conduct a PIA when they intend to disclose personal information outside Québec. In these cases, the purpose of the PIA will be to determine whether the information will be adequately protected in accordance with generally accepted privacy principles (s. 17). The extra-provincial release of personal information must also be subject to a written agreement that takes into account, among other things, the results of the PIA and, if applicable, the terms and conditions agreed to in order to mitigate identified risks (s. 17(2)). The disclosure of personal information by businesses for study, research or statistical purposes is also subject to a PIA (s. 21). The law is substantially modified in this regard, in that a third party wishing to use personal information for such purposes must submit a written request to the Commission d'accès à l'information (“CAI”), attach a detailed description of their research activities and disclose a list of all persons and organizations to which it has made similar requests (s. 21.01.1 and 21.01.02). Businesses may also disclose personal information to a third party, without the consent of the individual, in the course of performing a service or for the purposes of a business contract. The mandate must be set out in a written contract, which must include the privacy safeguards to be followed by the agent or service provider (s. 18.3). The release of personal information without the consent of concerned individuals as part of a commercial transaction between private companies is subject to certain specific requirements (s. 18.4). The amended Private Sector Act now defines a business transaction as “the sale or lease of all or part of an enterprise or its assets, a change in its legal structure by merger or otherwise, the obtaining of a loan or other form of financing by it, or the taking of a security interest to secure an obligation of the enterprise” (s. 18.4). Bill 64 enshrines the concept of “privacy by default,” which means that businesses that collect personal information by offering a technological product or service to the public with various privacy settings must ensure that these settings provide the highest level of privacy by default, without any intervention on behalf of their users (s. 9.1). This does not apply to cookies. Where a business has reason to believe that a privacy incident has occurred, it must take reasonable steps to reduce the risk of harm and the reoccurrence of similar incidents (s. 3.5). A privacy incident is defined as “the access, use, disclosure or loss of personal information” (s. 3.6). In addition, businesses are required to notify concerned individuals and the CAI for each incident that presents a serious risk of harm, which is assessed in light of the sensitivity of the concerned information, the apprehended consequences of its use and the likelihood that it will be used for a harmful purpose (s. 3.7). Companies will furthermore be required to keep a confidentiality incident log that must be made available to the CAI upon request (s. 3.8). 3. Strengthening the consent regime Bill 64 modifies the Private Sector Act to ensure that any consent provided for in the Act is clear, free and informed and given for specific purposes. This means that consent must be requested for each of the purposes of the collection, in simple and clear terms and in a clearly distinct manner, to avoid consent being obtained through complex terms of use that are difficult for individuals to understand (art. 14). The amended Private Sector Act now provides that minors under the age of 14 must have a parent or a guardian consent to the collection of their personal information. For minors over the age of 14, consent can be given either directly by the minor or by their parent or guardian (s. 14). Within an organization, consent to the disclosure of sensitive personal information (e.g., health or other intimate information) must be expressly given by individuals (s. 12). 4. Ensuring better compliance The Private Sector Act has likewise been amended by adding new mechanisms to ensure that businesses subject to the Private Sector Act comply with its requirements. Firstly, the CAI is given the power to impose hefty dissuasive administrative monetary penalties on offenders, which can be as high as $10,000,000 or 2% of the company's worldwide turnover (s. 90.12). In the event of a repeat offence, the fine will be doubled (s. 92.1). In addition, when a confidentiality incident occurs within a company, the CAI may order it to take measures to protect the rights of affected individuals, after allowing the company to make observations (s. 81.3). Secondly, new criminal offences are added to the Private Sector Act, which may also lead to the imposition of severe fines. For offending companies, such fines can reach up to $25,000,000 or 4% of their worldwide turnover (s. 91). Finally, Bill 64 creates a new private right of action. Essentially, it provides that when an unlawful infringement of a right conferred by the Private Sector Act or by articles 35 to 40 of the Civil Code of Québec results in prejudice and the infringement is intentional or the result of gross negligence, the courts may award punitive damages of at least $1,000 (s. 93.1). 5. Coming into force The amendments made by Bill 64 will come into force in several stages. Most of the new provisions of the Private Sector Act will come into force two years after the date of assent, which was granted on September 22, 2021. However, some specific provisions will take effect one year after that date, including: The requirement for businesses to designate a Chief Privacy Officer (s. 3.1); The obligation to report privacy incidents (s. 3.5 to 3.8); The exception for disclosure of personal information in the course of a commercial transaction (s. 18.4); and The exception to disclosure of personal information for study or research purposes (s. 21 to 21.0.2). Finally, the provision enshrining the right to portability of personal information (s. 27) will come into force three years after the date of official assent. The Lavery team would be more than pleased to answer any questions you may have regarding the upcoming changes and the potential impact of Bill 64 on your business. The information and comments contained in this document do not constitute legal advice. They are intended solely for the use of the reader, who assumes full responsibility for its content, for their own purposes.

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  • The United States–Mexico–Canada Agreement (USMCA): What this means for Canadian IP law

    As we reported on October 15, 2018, Canada, Mexico, and the United States were finally able to agree on the terms of the United States–Mexico–Canada Agreement (USMCA) on September 30, 2018. The USMCA is intended to replace the North American Free Trade Agreement (NAFTA), which has been in place for over 20 years. The USMCA comprises 34 Chapters, one of which is dedicated entirely to Intellectual Property. With such a focus on Intellectual Property, it is worth asking what changes this agreement will bring forth to current Canadian IP laws. While this Chapter may seem extensive, many of its provisions reflect what is already provided for under Canadian law. However, there are several changes worth noting, most of which will bring our IP regime closer to that of our US counterparts. What follows is a brief summary of the more significant changes the USMCA will bring to the fields of patents, trademarks, copyrights, industrial designs and border measures. Patents and Undisclosed Test or Other Data Patent term adjustment The USMCA will provide for a patent term adjustment for unreasonable delays in the issuance of patents. This means that the Canadian Intellectual Property Office (CIPO) will compensate for such delays by adjusting the terms of issued patents, similar in principle to the current system at the United States Patent and Trademark Office. These “unreasonable delays” will include delays where the issuance of a patent occurs more than five years after the filing date, or three years after a request for examination has been made, whichever is later. Canada will have 4.5 years to implement this change once the USMCA enters into force. Patent Law Treaty Under the USMCA, the parties shall give due consideration to ratifying or acceding to the Patent Law Treaty (PLT), or adopt or maintain procedural standards consistent with the objective of the PLT. The Canadian Patent Act has already been amended to this end, however the relevant provisions are not yet in force pending the preparation of amended Patent Rules to implement such changes. Extended data protection for biologics Another significant change concerns data protection for biologics (patented or not), which will be increased from 8 years to 10 years (still 2 years less than what is presently available in the US) from the date of first marketing approval. Canada will have 5 years to implement this change once the USMCA enters into force. Trademarks The USMCA describes a number of obligations related to Canadian trademarks. However, many of these obligations are already met or will soon be, once Canada implements the amendments to its trademark laws in 2019. This includes not denying registration to sound marks and making “best efforts” to register scent marks, as well as adopting the Madrid Protocol, the Singapore Treaty and a trademark classification system consistent with the Nice Agreement. It appears however that amendments may be required to include protection for “collective marks” (i.e. marks used by members of cooperative, association or other collective group or organization) and some changes may also be necessary with respect to geographical indications As for “well known-marks”, it is questionable whether additional statutory protection will be necessary to meet the requirements of the USMCA. Furthermore, the USMCA requires that Canada implement a system that provides for “pre-established damages” or “additional damages” in civil proceedings with respect to trademark counterfeiting, to deter infringement and fully compensate trademark owners. As “additional damages” seem to include exemplary or punitive damages, no change to the law would be required to meet USMCA requirements. The Canadian government could however seize this opportunity to incorporate the concept of “statutory damages”, as is the case under the Copyright Act. Under such a system, those alleging infringement could elect to obtain damages in an amount that is explicitly stated in law, rather than having to prove such damages based on the level of harm they have suffered. Copyrights Canadian copyrights will experience at least one significant change: an increase in the term of protection from 50 to 70 years after the author’s death. Once again, this change will further align our copyright law scheme with that of the US. It is also worth noting that the USMCA includes copyright provisions related to Internet Service Providers, including legal incentives for ISPs to cooperate with copyright holders, as well as limitations in the law that preclude monetary relief from copyright infringement that ISPs do not control, initiate, or direct. In order to benefit from this regime, ISPs will have to implement expeditious measures for removing access to infringing content and adopt a policy for terminating the accounts of repeat infringers. Industrial designs Consistent with the Hague Agreement, the USMCA notably sets forth a term of industrial design protection of a maximum of 15 years, which is 5 years longer than the current 10 year term under Canadian practice. Canada has already joined the Hague Agreement and is implementing its provisions, including the maximum 15 year term, which shall come into force on November 5, 2018. Border Measures A welcome change under USMCA will be the increased power for customs officials including the authority to initiate border measures against suspected counterfeits or pirated goods imported or destined for export. Such authority will extend to goods in transit or admitted into or exiting from a free trade zone or bonded warehouse. Summary While the final form of the USMCA remains to be seen (it still needs to be ratified by the three countries), the above changes point to a consistent trend: the strengthening of Canadian intellectual property rights. It remains to be seen how and when these provisions will be implemented into current Canadian laws, as well as how they will be enforced once adopted. The Agreement, in addition to the Chapter pertaining to IP law, can be accessed using the following links: USMCA and Chapter 20 (Intellectual Property).

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  • New NAFTA : 8 major changes

    Canada and the United States reached an agreement on the renegotiation of the North American Free Trade Agreement (NAFTA) on September 30, 2018 which was the deadline imposed by the United States. This new agreement, now called the United States-Mexico-Canada Trade Agreement1 (hereafter the “USMCA” or the “Agreement”), changes the legal framework that has been in place for the last twenty years. Some concerns have already surfaced since the negotiations ended: How will the USMCA affect Canadian businesses? Pending further analysis of the USMCA, which is expected to come into force in 2020, here is a short summary of the changes made to NAFTA by the new Agreement. Wider American access to Canadian dairy, egg and poultry markets American complaints about access to the dairy market go back long before the Donald Trump presidency since the United States have been in a chronic surplus situation for many years.   With respect to dairy products: 1)    After having lost access to 3.25% negotiated under the Trans-Pacific Partnership (TPP) when it withdrew from it in 2017, the United States obtained an opening of 3.6% of the Canadian market. For Canadian producers, this means an increase in market access by American producers. 2)    Canada has agreed to dismantle the Class 7 price agreement concluded in 2016, which limited American exports of ultra filtered milk used to produce dairy products. The USMCA will also have an impact on other food sectors: Canada has granted the United States greater access for eggs, turkey, poultry, hatching eggs and chicks, a measure that will take effect when the USMCA comes into force. However, the Canadian Government has announced that it will compensate producers for the increased import quotas. In return for these concessions, Canada has gained greater access for its exports of refined sugar and sweetened products, as well as for certain dairy products.  American tariffs justified by national security (Section 232): no end in sight Although this was a central concern for Canada, the United States did not agree to lift the tariffs on steel and aluminum imposed in the name of national security. The United States indicated that these discussions were independent of the USMCA and will be addressed separately in the indefinite future. That being said, the USMCA provides for an exemption from automobile tariffs for any future tariff that the United States may impose in this sector (subject to certain limits). Intellectual property: new standards The USMCA largely adopts the requests made by the United States during the TPP negotiation: 1)    Copyright protection will be extended twenty years, from 50 to 70 years. 2)    Data protection relating to drugs manufactured from biological cells has been extended two years, from eight to ten years, which will have an impact on manufacturers of generics. 3)    Protection of certain geographical names. Sales tax and customs duties: de minimis levels will be increased The de minimis level in force at the moment for sales tax and customs duties is $20, an amount that has not changed in fourty years and above which Canada could impose tariffs. With the new Agreement, the de minimis threshold will now rise to $40 for sales tax to be imposed and $150 for customs duties to be applied.  This is a Canadian “victory” over the initial demand of the United States to raise this threshold to $800, which would have dramatically disrupted the retail trade in Canada.  Preservation of the cultural exception A “victory” for Canada, the cultural exception remains. Therefore, no foreigner will be able to acquire Canadian media, whether written, radio or television. However, its application to digital content remains uncertain.  Dispute resolution mechanisms: victories and defeats Chapter 19 is retained, providing the possibility for Canada to seek arbitration if tariffs and quotas were to be imposed for dumping or subsidizing in a manner contrary to American legislation and to the rules applied in international trade. Stability in this area was of vital importance to Canada.  This chapter has historically enabled Canada to win major victories against the United States , particularly in the softwood lumber sector. However, Chapter 11 on the settlement of investor-State disputes, protecting investment in other member States of the free trade area, has almost entirely disappeared; it will now only apply to certain investments made prior to the entry into force of the USMCA. However, the dispute settlement mechanism between investors and the State will remain in force with Mexico under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The automobile sector: refocusing on North America Canada has obtained an exemption of tariffs for vehicles it will export to the extent that vehicle exports do not exceed 2.6 million units per year (about 1 million more than current production) and USD $32.4 billion in parts. In return, the United States has obtained a change in the rules of origin: vehicles free of tariffs must henceforth comprise not 62.5% of parts manufactured in North America but 75%. With this, fewer foreign parts will be able to be included in assembling vehicles manufactured in the area, which could mean an increase in demand for Quebec’s automotive parts industry. In addition, eventually 40% of the parts will have to come from plants paying at least USD $16 per hour. In parallel, the agreement provides that the process for unionization of workers will have to be easier. Although this element will not have a great impact on Canada, Mexico on the other hand will be greatly affected. The sunset clause: an American concession A contentious and insistent demand by the United States concerned the adoption of a sunset clause providing for renegotiation or termination of the agreement every five years. Such a provision would have created uncertainty for businesses and would have had an impact on investments. What is now provided is a first term of 16 years. Six (6) years after coming into force, a review process will then be initiated to assess the Agreement’s operation. Upon completion of the review, the parties may indicate their intention to pursue a second term of 16 years under the same conditions; alternatively they may negotiate new terms. And what next? It is expected that the text will be signed on November 30, 2018. However, approval by the US Congress will not take place until 2019 and entry into force will probably not take place before 2020. In the meantime, NAFTA remains in force. In anticipation, we will continue to study the USMCA and its potential impact on our clients. Our team remains  available to answer any questions related to this matter.   The text of the new agreement was published on September 30 on the U.S. Trade Representative’s website.

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  • Artificial Intelligence and the 2017 Canadian Budget: is your business ready?

    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.

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  • Impact of the decision in R. v. Jordan on public law

    The procedural delays in criminal, penal, civil, administrative and disciplinary matters have drawn a lot of criticism and contributed to undermining public confidence in the administration of justice. This concern was at the heart of an important decision by the Supreme Court of Canada rendered last July 8. In this majority judgment, the Court adopted a new framework for applying section 11(b) of the Canadian Charter of Rights and Freedoms,1 which guarantees the right to be tried in a reasonable time. While this decision resolves issues raised in the criminal and penal domains, this case is likely to spark reflection that could very well have ramifications for administrative and disciplinary law. Since 1992, in order to determine whether there has been an infringement of the right to be tried within a reasonable time in a given case, the Canadian courts have applied the test developed by the Supreme Court in R. v. Morin.2 In applying that test, the courts assessed the alleged infringements by balancing the following four factors: length of the delay waiver by the defence of part of the delay reasons for the delay prejudice to the accused’s interests in liberty, security of the person, and a fair trial The decision rendered by the Supreme Court in R. v. Jordan3 marks a significant change as compared to the prior law. Indeed, in this decision (numbering 303 paragraphs), the majority judges discarded the framework established in Morin, noting the unforeseeability of its application, the inconsistencies in the treatment of the concept of prejudice in the case law and the difficulty of proving it, the problems caused by the retrospective application of the test and, finally, its great complexity. To address these problems, the majority judges introduced a new framework based on a “presumptive ceiling”. The Court set the ceiling at 18 months for cases heard in the provincial courts and 30 months for those heard in the superior courts.4 Once the time period between the laying of the charges and the end of the trial exceeds this ceiling, it is presumed to be unreasonable. The onus is then on the Crown to rebut this presumption, which can only be done by invoking exceptional circumstances. If the Crown cannot do so, a stay of proceedings is ordered. On the other hand, where the “presumptive ceiling” is not reached, the burden of proving the delay is unreasonable lies on the defence. In such circumstances, a stay of proceedings will only be ordered in clear cases. The role of “prejudice” The issue of prejudice seems to have played a decisive role in the reflection of the majority judges and, ultimately, in their decision to reject the test laid down in Morin. As noted above, the difficulty in proving prejudice, the highly subjective nature of the analysis thereof, and the confused treatment it has received in the case law, are among the main reasons that persuaded the Court to reform the applicable framework: [33] Second, as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the s. 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between “actual” and “inferred” prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests. Courts have also found that “it may not always be easy” to distinguish between prejudice stemming from the delay versus the charge itself (R. v. Pidskalny, 2013 SKCA 74 (CanLII), 299 C.C.C. (3d) 396, at para. 43). And even if sufficient evidence is adduced, the interpretation of that evidence is a highly subjective enterprise. [34] Despite this confusion, prejudice has, as this case demonstrates, become an important if not determinative factor. Long delays are considered “reasonable” if the accused is unable to demonstrate significant actual prejudice to his or her protected interests. This is a problem because the accused’s and the public’s interests in a trial within a reasonable time does not necessarily turn on how much suffering an accused has endured. Delayed trials may also cause prejudice to the administration of justice.5 In light of the above, the majority judges excluded prejudice from the factors that are explicitly considered as part of the new approach they propose. However, prejudice still plays a role, as it was considered by the Court in determining the parameters of the presumptive ceiling: [109] Second, the new framework resolves the difficulties surrounding the concept of prejudice. Instead of being an express analytical factor, the concept of prejudice underpins the entire framework. Prejudice is accounted for in the creation of the ceiling. It also has a strong relationship with defence initiative, in that we can expect accused persons who are truly prejudiced to be proactive in moving the matter along. [110] Prejudice has been one of the most fraught areas of s. 11(b) jurisprudence for over two decades. Understanding prejudice as informing the setting of the ceiling, rather than treating prejudice as an express analytical factor, also better recognizes that, as we have said, prolonged delays cause prejudice to not just specific accused persons, but also victims, witnesses, and the system of justice as a whole.6 Once the presumptive ceiling is reached, it will not be possible under any circumstances to argue absence of prejudice in order to justify the delay. Indeed, the Supreme Court has instituted a form of irrebuttable presumption of prejudice once the ceiling is breached: [54] Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin, “prejudice to the accused can be inferred from prolonged delay” (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.7 Beyond the presumptive ceiling, absence of prejudice will therefore no longer have any effect in determining whether or not a delay is reasonable. Impacts on administrative and disciplinary law Firstly, it bears repeating that section 11(b) of the Canadian Charter applies to “any person charged with an offence”, and therefore only in criminal matters. In the administrative law context, unreasonable delays can still be sanctioned either under section 7 of the same Charter or simply by applying the principles of administrative law, as noted by the Supreme Court in the Blencoe case.8 These principles also apply to disciplinary matters, as appears from the decision rendered by the Court of Appeal in Huot v. Pigeon.9. However, whether the delay is considered under section 7 of the Canadian Charter or under the principles of administrative law, prejudice will play an important role in assessing whether such delay can give rise to a stay of proceedings. Indeed, for there to be an infringement of the right to security protected by section 7 of the Canadian Charter, it must be shown that there has been interference with a person’s bodily or psychological integrity. When the interference is psychological in nature, it must also be serious: First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations.10 The same is true of the principles of administrative law: In my view, there are appropriate remedies available in the administrative law context to deal with state-caused delay in human rights proceedings. However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period (see: R. v. L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.11 These principles continue to apply, of course, notwithstanding the Supreme Court’s decision in Jordan. However, in light of this case, it is reasonable to expect a similar reform of administrative and disciplinary law will be in the works in the not too distant future. Indeed, the difficulty of proving prejudice where caused by long delays and the confusion in the case law over the treatment of prejudice, are also issues faced in administrative and disciplinary, and not just criminal matters. Furthermore, extended delays cause prejudice to all the parties, the witnesses and the system of justice, whether it be administrative or judicial. Finally, administrative tribunals and disciplinary bodies also have the same implicit duty as the courts, in our view, to preserve the confidence of the public in the administration of justice as a whole. Canadian Charter of Rights and Freedoms, part I of the Constitution Act 1982, [Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11] (hereinafter the “Canadian Charter”). R. v. Morin, [1992] 1 S.C.R. 771 (hereinafter “Morin”). R. v. Jordan, 2016 SCC 27 (hereinafter “Jordan”). Delay attributable to the defence does not count in calculating the ceiling. Supra, note 3. Supra, note 3. Ibid. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44. Huot c. Pigeon, 2006 QCCA 164. Supra, note 8, para. 57. Ibid, para. 101.

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  • Honesty of financial advisors and discretion of the Autorité des marchés financiers: the Québec Court of Appeal rules

    In a decision issued last May 20,1 the Québec Court of Appeal affirmed a judgment2 of the Superior Court of Québec rendered on October 28, 2013, which dismissed the action in damages for more than $7 million brought by a former representative in insurance of persons and in group savings plan brokerage, Mr. Alan Murphy, against the Autorité des marchés financiers (“AMF”). Facts Mr. Murphy was convicted in 2007 by the Disciplinary Committee of the Chambre de la sécurité financière of 32 charges,3his registration was permanently cancelled, as well as being temporarily cancelled for three years and one year, in respect of his areas of practice, and he was fined a total of $20,000. He then obtained a stay of both the permanent cancellation and the payment of the fines.4 Upon review by the Court of Québec, his sentence was reduced to a temporary cancellation for one year as well as the payment of a $12,000 fine.5 Despite the revocation of his certificate and the numerous notices from the AMF, Mr. Murphy continued acting as a representative, thereby significantly worsening his disciplinary record. Upon the expiry of the period during which his registration was temporarily cancelled, the AMF refused to renew Mr. Murphy’s certificate of practice. Claiming that in doing so the AMF had acted excessively, unreasonably and contrary to the requirements of good faith by multiplying the administrative obstacles, inspections and investigations against him, he sued the AMF in the Superior Court, contending that their actions demonstrated the bad faith required to substantiate a claim for $7 million in damages. Among other things, Mr. Murphy cited the judgment of the Court of Québec which had changed the sanction imposed on him and criticized the AMF. In response, the AMF argued that its refusal to issue a new certificate to Mr. Murphy was justified because he lacked the necessary degree of honesty to practise as a representative in insurance of persons and in group savings plan brokerage. Essentially, the issue raised was whether the AMF was protected by the relative immunity conferred on it for acts performed in good faith in the exercise of its functions, as provided in section 32 of the Act respecting the Autorité des marchés financiers.6 Judgment of the Court of Appeal Firstly, the Court stated that the clause protecting the AMF is comparable to the clause that protects the Quebec professional orders. It then cited the leading decision of the Supreme Court of Canada on relative immunity clauses, the Finney case,7 which states that bad faith includes, among other things, intentional fault, which can constitute an abuse of power. This concept also includes serious carelessness or recklessness which “implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed.”8 Next, to determine whether Mr. Murphy had the necessary honesty to carry on his practice as an advisor in group insurance, the Court considered the numerous decisions which the AMF had rendered against him. It should be noted that Mr. Murphy took all the measures available to him to contest9 the decisions rendered against him, while choosing nonetheless to continue practising his profession, despite the fact he no longer had the certificate authorizing him to practice. As a result, several penal complaints10 were also lodged against him. The Court of Appeal found that the discretionary power conferred on the AMF under section 220 of the Act respecting the distribution of financial products and services11 (“ADFPS”) to assess the degree of honesty of persons applying for authorization to practise as a financial advisor, and to issue certificates based thereon, is within the exclusive jurisdiction of the AMF. The fact that Mr. Murphy had illegally engaged in activities reserved for representatives was a sufficient ground which allowed the AMF to conclude that he lacked a sufficient degree of honesty pursuant to sections 219 and 220 of the ADFPS. The Court found that the AMF had adequately assessed Mr. Murphy’s lack of honesty in refusing to issue his certificate. Accordingly, the Court of Appeal held that the AMF benefited from the immunity conferred by section 32 of the Act respecting the Autorité des marchés financiers against the action instituted by Mr. Murphy. It therefore upheld the judgment of the Superior Court dismissing his action. Murphy c. Autorité des marchés financiers, 2016 QCCA 878. Murphy c. Autorité des marchés financiers, 2013 QCCS 5764. Rioux c. Murphy, June 12, 2007, No. CD00-0404. Murphy c. Chambre de la sécurité financière, 2007 QCCQ 7950. Murphy c. Chambre de la sécurité financière, 2008 QCCQ 5427; Murphy c. Autorité des marchés financiers, 2010 QCCA 1078; application for leave to appeal to the Supreme Court of Canada dismissed (S.C. Can., 2011-01-27) 33860. Act respecting the Autorité des marchés financiers, CQLR, c. A-33.2. Finney v. Barreau du Québec, [2004] 2 S.C.R. 17. Ibid., para. 40. 2008-PDIS-0086 (July 25, 2008); 2008-DIST-0090 (September 19, 2008); 2009-PDIS- 0190 (July 23, 2009); Murphy c. Albert, 2009 QCCS 6366; Murphy c. Albert, 2011 QCCA 1147; 2011-PDIS-0249 (October 7, 2011); number unknown (January 10, 2012). Autorité des marchés financiers c. Murphy, 2010 QCCQ 11692; Murphy c. Autorité des marchés financiers, 2011 QCCS 3510; Murphy c. Autorité des marchés financiers, 2011 QCCA 1688; Autorité des marchés financiers c. Murphy, 2016 QCCQ 2992. CQLR, c. D-9.2.

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  • Contracts by public entities: stay tuned on June 1, 2016

    The regulation governing contracts of public bodies leaps into the digital age. The amendments, passed on April 13, 2016, and coming into force June 1, 2016, aim to clarify the rules pertaining to the results evaluation.1 Five key changes Tenders in electronic form are mandatory if so required in the tender documents —> change of computer systems will be needed to ensure the integrity of the signatures and tenders. Minor modifications to the conditions for compliance —> still not possible for the public body to specify what constitutes a minor irregularity in the tender documents. Qualitative evaluation of tenders —> it is possible to ask for the details of the evaluation in case of refusal. For supply contracts, the concept of “total acquisition cost” is introduced —> to determine the lowest price or the adjusted price, the public body may take into consideration the additional costs related to the useful life of the goods which are not included in the tenders. Adoption of a new regulation respecting information technology contracts2 —> these contracts are removed from the ordinary framework of supply and services contracts Electronic transmission of tenders Public bodies may henceforth require tenderers to transmit their tenders only through the electronic tendering system approved by the government (ETS).3 Failing to do so will then constitute a ground for automatic rejection, as well as the fact that the electronic tender “is unintelligible, infected or otherwise illegible once its integrity has been established by the electronic tendering system.”4 Moreover, only tenders whose integrity has been ascertained,5 meaning that it is possible to verify that the information which the document contains has not been altered, that the medium used provides stability and perennity to the information and that the security measures necessary to its preservation exist6may be accepted. If it is not possible to ascertain the integrity of a document at the opening of tenders, the public body must not disclose the prices, but rather send a default notice to the tenderer in question, who will then have two business days to remedy the situation, failing which the tender will be rejected.7 If integrity can be ascertained, the public body shall publish the result of the opening in the ETS within four business days.8. The public body may of course continue to accept the filing of paper tenders, exclusively or in addition to electronic tenders. In this last case, effective from May 31, 2019, in the event that a same tender is both sent electronically and on paper form, it will be deemed to constitute two separate tenders for the purpose of compliance analysis.9 Prior to May 31, 2019, it may be considered that the paper form version prevails. Evaluation of the tenders Conditions for compliance If, effective from June 1, 2016, the erasure of or correction to the tendered price which is not initialled will no longer constitute a ground for automatic rejection, grounds such as a conditional or restrictive tender, a security which does not comply with the form and conditions required, lateness in submitting a tender and non-compliance with a condition stipulated to be essential remain.10 In this respect, the regulation is more timid than the draft regulation published on November 11, 2015, which, for example, would have given the public body the authority to establish which conditions could be the subject of a correction by tenderers in the event of an irregularity. This proposed faculty was finally not retained. Results of the evaluation Regarding contracts to be awarded following a quality evaluation, whereas the public body was previously required to inform each tenderer only of the overall results of the evaluation. From June 1st, 2016, they will also be required, upon the written request to the tenderer sent within 30 days of the quality evaluation results, provide the tenderer with the results in respect of each criterion used, as well as briefly set out the reasons justifying the fact that a tender was not accepted, if such was the case. The public body is required to provide its response to the tenderer within 30 days from the date it received the tenderer’s request.11 Changes specific to supply contracts Supply contracts are the subject of particular amendments, the most important of which apply to the adjustments to be made to the tender price to determine the lowest price. The concept of “impact cost”12 disappears, to be replaced with that of “total acquisition cost,” which allows the public body to take into account the “additional costs related to the acquisition of the goods”. These costs must be identified in the tender documents. They represent quantifiable and measurable elements non included in the tendered price, the cost of which will be borne by the public body during the useful life of the goods acquired. They may include installation, maintenance, support and training costs.13 Their value must be communicated to tenderers within 15 days of the contract awarding.14 The amendments to the regulation also specify the procedure applicable for calls for tenders in two stages15 as well as the procedure pertaining to compliance tests: the public body must first test the goods proposed by successful tenderer according to the terms provided for in the call for tenders and can only resort to the other tenderers if the goods proposed by the successful tenderer fail to pass the compliance test.16 New regulation applicable to contracting in the field of information technologies In addition to the above amendments, a new regulatory framework is adopted in respect of information technologies contracts which, effective June 1, 2016, will cease to be covered by the ordinary regime regulating services and supply contracts. We simply note that if the structure of the Regulation respecting contracting by public bodies in the field of information technologies, O.C. 295 2016 generally retains that of the current regulations, it also innovates, the government seeking to reflect certain issues specific to the “acquisition of goods or the provision of services in the field of information technologies […] [which] seek[s] predominantly to ensure or enable functions of information processing and communication by electronic means, including the collection, transmission, display and storage of information”. The new regulation provides specific rules pertaining to intellectual property or cloud computing and the possibility to use a new method for awarding contracts, “competitive dialogue”. Conclusion These regulatory amendments reflect the government’s wish to make electronic tenders the norm in the medium term. They also reflect some teachings of the courts, particularly as to the importance of precise tender documentation. Lastly, particularly with respect to supply, they aim to give more flexibility to the public body in order to ensure the best possible value to the taxpayer. O.C. 292-2016, 293-2016, 294-2016 and 295-2016 dated April 13, 2016, GOQ.II.1803-1826 (April 13, 2016), respectively amending the Regulation respecting supply contracts of public bodies, CQLR c. C-65.1, r. 2 (Rrscpb), the Regulation respecting service contracts of public bodies, CQLR c. C-65.1, r. 4 (Rscpb) and the Regulation respecting construction contracts of public bodies, CQLR c. C-65.1, r. 5 (Rccpb), all three adopted under the Act Respecting Contracting By Public Bodies, CQLR c. C-65.1. Regulation respecting contracting by public bodies in the field of information technologies, O.C. 295 2016. Sec. 4(5.2.), 9.2 Rccpb, Rscpb, Rrscpb; an exception applies to supply contracts referred to in section 183 of the Act respecting health services and social services, CQLR, c. S 4.2 where the documents related to the tendered price are in the form of a price list whose scope or layout does not make it possible to identify a total price (sec. 46.2 Rrscpb). Sec. 7 para 1 (5) Rccpb, sec. 7 para 1 (4) Rscpb, sec. 7 para 1 (4) Rrscpb. Sec. 13.1 Rccpb, sec. 10.1 Rscpb, sec. 10.1 Rrscpb. An Act to Establish a Legal Framework for Information Technology, CQLR c. C-1.1, sec. 6. Sec. 7.0.1 para 1 Rccpb, Rscpb, Rrscpb. Sec. 14 para 4 Rccpb, sec. 11 para 4 Rscpb, sec. 11 para 4 Rrscpb. Sec. 7 para 3 Rccpb, Rscpb, Rrscpb. Sec. 7 para 1 Rccpb, Rscpb, Rrscpb. Sec. 32 para 5 Rccpb, sec. 28 para 4 Rscpb, sec. 26.3 para 3. Sec. 13 al. 2 Rrscpb (2008-2016). Sec. 15.1.1 and 15.1.2. Rrscpb. Sec. 15.1.2 Rrscpb. Sec. 26.1-26.3 Rrscpb. Sec. 7 para 1(5), 12 para 2 Rrscpb.

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  • Follow-up to the recommendations in the report of the Charbonneau Commission

    Last May 10, the Minister of Municipal Affairs and Land Occupancy, Martin Coiteux, announced the tabling of several amendments to Bill 83 dealing with various legislative provisions on municipal matters. These amendments pertain to the recommendations contained in the report of the Charbonneau Commission. Changes to the call for tender rules for municipalities In order to strengthen the integrity of the process for awarding contracts in municipal calls for tenders, certain changes are being proposed to the functioning of the process. For example, the names of the members appointed to the selection committee would be kept confidential. Contractors would also be able to participate anonymously in the process. In addition, the amendments as presented would increase the threshold for the awarding of contracts without calls for tenders in cities from $25,000 to $100,000. Increased oversight of political contributions With a view to a sounder public administration, Minister Coiteux is suggesting that the time limit for instituting proceedings relating to illegal financing in municipal politics be extended to seven years. The current time limit is five years. The amendments also provide that cash loans or guarantees in favour of a municipal party would be limited to a maximum of $5,000. Additionnaly, any persons who agree to make such a loan or provide such a guarantee would have to sign a statement guaranteeing that they would not act as front men for financing. _________________ On May 11, 2016, following in the footsteps of Minister Coiteux, the Minister of Justice, Stéphanie Vallée unveiled Bill 98 with a view to amending various statutes primarily regarding admission to the professions and the governance of the professional system. Responding primarily to four recommendations of the Charbonneau Commission, the main objective of this Bill is the public protection. Governance, ethics and public protection To this end, Bill 98 would allow the Office des professions to take the lead by investigating a professional solely on the basis of information received by it. Thus, the Office would no longer have to wait for permission from the Minister of Justice and could act on its own initiative, considerably reducing the timeframe for the investigation. The professionals of all professional orders would also have to follow mandatory ethics and professional conduct training. In the same vein, the Bill provides for improvements to the training of the directors of professional orders, particularly in such matters. Suspension or limitation of a professional's right to practice Furthermore, the Minister of Justice is proposing that a professional's right to practice or use of his or her title should be suspended or limited when he or she is being prosecuted for an offence punishable by imprisonment of five years or more. Immunity granted to informant also guilty of offence The syndic would have the power to grant immunity to a professional who previously reported an offence which he or she participated in. The objective here is to increase the protection of informants in order to encourage transparency and prevent the infiltration of organized crime into the legal economy. The report of the Charbonneau Commission recommended that professional orders should be able to sanction firms that adopt illegal practices, and not just professionals. However, this recommendation is not included in Bill 98. The amendments to Bill 83 were tabled on May 10, 2016. Bill 98 was introduced on May 11, 2016. Lavery's Corporate and Business Integrity Group is closely following the adoption of the amendments to Bill 83 and the adoption of Bill 98 in order to assist you in applying these new provisions and advising you on the potential consequences to your firm.

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  • Government agencies, get ready!

    Last October 30, the provincial government announced the creation of 'Passeport Entreprises', an action plan focused on two main points: to facilitate access by businesses to government contracts and make the Quebec government's tendering processes more transparent and rigorous. The government intends to table a Bill to create the office of 'Commissaire aux contrats publics' ('Public Contracts Commissioner'), whose mission would be to ensure the sound management of public contracts. To do so, the current functions of the Autorité des marchés financiers regarding authorization to enter into contracts with the state would be transferred to the Commissioner. The Public Contracts Commissioner is expected to have the power to require that changes be made to call for tender documents, or even to cancel them outright if he or she is of the view that they unduly limit competition, either because they are too restrictive, or because they target a specific product or business where other businesses could meet the same need. Public agencies would be required to implement a systematic and transparent procedure, as an initial recourse, for processing complaints for lack of competition in tendering. Before turning to the Commissioner, an aggrieved company would first have to submit its complaint to the public agency responsible for the call for tenders, which would then be required to assess the complaint. For the time being, the foregoing is still subject to confirmation, since no Bill has yet been published. Lavery's Corporate and Business Integrity Group protects your interests and will closely follow the adoption of this Bill to assist you in taking the necessary measures to bring you into compliance with the new requirements.

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