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  • Practice in a specialized medical centre: limits to the freedom of association of physicians based on their status as participants or non participants

    On June 1 of this year, the Québec Court of Appeal1 confirmed a decision of the Superior Court of Québec which had ruled that physicians who participate in the health insurance regime and physicians who do not cannot work together in a same specialized medical centre. In this case, the plaintiffs were seeking to have section 333.3 of the Act respecting Health Services and Social Services2 (“ARHSSS”), which prevents physicians who participate in the health insurance regime from practicing together with physicians who do not in a specialized medical centre (“SMC“) declared null and void. The plaintiffs were maintaining that the restrictions imposed on them by the above referenced section and related sections undermined their fundamental rights and liberties and should be declared unconstitutional. More precisely, the plaintiffs were arguing that their right of association and to choose colleagues of their choice was violated by these provisions. It must be noted that section 333.3 ARHSSS provides that a SMC can only be operated under two forms, namely, either exclusively by physicians who participate in the health insurance regime and are compensated on the basis of the agreement entered into pursuant to section 9 of the Health Insurance Act3, or exclusively by physicians who do not participate in the regime. This provision results in participating physicians not being allowed to offer their services in a SMC where non participating physicians practice. In the first instance, the Superior Court4 had concluded that the practice of medicine in a SMC was not protected by freedom of association. [Translation]“[102] The guarantee of freedom of association conferred on members of a profession is not compromised only because they are governed by a legislative regime. Physicians are free to associate, but they simply have not the constitutional right to do so without being subject to the restrictions on SMCs established pursuant to the ARHSSS.” Furthermore, the Superior Court had noted that section 333.3 ARHSSS regulates the functioning of SMCs but does not prohibit or hinder the establishment of an association, so a person cannot claim the constitutional right to work as he or she pleases, outside of any organized framework, which is not protected under the charters. Accordingly, a physician cannot claim the right to establish business relations with persons of his or her choice for the same reason. The Court of Appeal took the same stance. As the Superior Court did, it acknowledged that: [Translation]“[35] The appellants cannot, under the cover of freedom of association, claim absolute and unconditional liberty to associate as they please and practice medicine under the conditions of exercise which suit them on the grounds that they wish to practice medicine with others […]5. The Court of Appeal thus agreed with the reasons of the trial judge and unanimously considered that the contested provisions do not violate the liberty of association. Physicians can choose their status and associate with others to practice medecine according to the terms set out in section 333.3 ARHSSS without being able to claim an absolute right to do so as they wish, without complying with the legal provisions governing SMCs. Fédération des médecins spécialistes du Québec c. Bolduc 2017 QCCA 860. CQLR, c. S-4.2. CQLR, c. A-29. Fédération des médecins spécialistes du Québec c. Bolduc 2015 QCCS 2680. See above, note 1.

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  • Medical use claims not involving the professional skill of a physician are patent-eligible in Canada.

    In a previous newsletter 1, we discussed a change in Canadian patent practice in respect of the patent-eligibility of claims relating to medical uses, further to a decision from the Federal Court 2. Following this decision, the Canadian Intellectual Property Office (CIPO) issued a revised Practice Notice 3 concerning the examination of medical use claims, indicating that claims defining as an inventive feature a fixed dosage or fixed dosing schedule, are patent-eligible. In contrast, claims defining as an inventive feature a dosage range or a dosing schedule that includes a range, are considered to interfere with or require the professional skill of a medical professional and are thus generally rejected by Canadian Examiners. Goudreau Gage Dubuc, one of the leading intellectual property firms in Canada, joins Lavery Lawyers. The two firms have integrated their operations in order to offer their clients a complete range of legal services. The integration consolidates Lavery’s multidisciplinary approach. As the largest independent law firm in Quebec, Lavery is continuing to grow by adding the expertise brought by lawyers, patent agents and trademark agents specializing in intellectual property law, who belong to one of the most respected teams in the country. To learn more, visit www.YourIPLawyers.ca. --> In a recent decision 4, the Patent Appeal Board (PAB) has determined that claims defining as an inventive feature a dosage regimen that includes a range do not necessarily interfere with the professional skill of a physician and may be acceptable, depending on the circumstances, in contrast to the more strict position taken during examination. Claim 1 under review in this case reads as follows: Use of calcitonin (CT) in combination with one or more oral delivery agents selected from N-(5-chlorosalicyloyl)-8-aminocaprylic acid, N-(10-[2-hydroxybenzoyl] aminodecanoic acid or N-(8-[2-hydroxybenzoyl]amino) caprylic acid, or a disodium salt, hydrate or solvate thereof for the manufacture of a medicament for the treatment of a disorder responsive to the action of calcitonin, wherein said medicament is for oral administration to a human host from about 5 minutes to 2 hours prior to a meal. The goal of the invention is to solve the problem of low bioavailability of calcitonin (CT) that arises when an oral formulation comprising CT is taken with food. The solution proposed is to orally administer the pharmaceutical composition comprising CT during a short time window prior to food intake, i.e. from about 5 minutes to 2 hours prior to a meal, as recited in claim 1.  The Examiner rejected the claims under section 2 of the Patent Act, alleging that the claims related to a method of medical treatment involving the professional skill of a physician because the essential element only serves to instruct a medical professional “how” to treat a patient, notably the instructions to take the formulation during the period of time from about 5 minutes to 2 hours prior to a meal. The PAB overturned the Examiner’s final decision, asserting that a person of ordinary skill in the art would appreciate that any time during the recited time window would overcome the low bioavailability observed when administering an oral formulation of CT with a meal, and thus a physician’s judgment is not required in selecting a particular time within this range. Stated otherwise, once the physician has decided to prescribe the oral CT formulation to be taken shortly before a meal, no exercise of the physician’s skill or judgment is required. The PAB thus concluded that the subject matter defined by the claims does not amount to a method of medical treatment, and thus falls within the definition of “invention” under section 2 of the Patent Act. This decision confirms that claims relating to medical uses may constitute patent-eligible subject matter, even when the inventive feature of the claims is somehow based on a dosage or dosing schedule defined in terms of a range, as long as it may be established that practicing the claimed invention does not interfere with or require the professional skill of a physician. Patent applicants would be well advised to consider this change to Canadian patent practice when seeking patent protection in Canada for these types of inventions.   Recent developments on patent-eligibility of medical use claims in Canada AbbVie Biotechnology Ltd. v Canada (Attorney General), 2014 FC 1251. PN 2015-01, issued March 18, 2015. Commissioner’s Decision 1418

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  • A physician refusing to follow a professional training course constitutes sufficient ground for an establishment to refuse to renew the physician’s status and privileges – TAQ confirms its decision

    On March 29, 2017, the Tribunal administratif du Québec issued a decision1 (the “TAQ2 decision”) reviewing one of its own judgments (the “TAQ1 judgment”)2 which had confirmed the decision of a health establishment not to renew the privileges of a physician who had refused to follow a professional training course.3 The application for review had been introduced by the physician on the ground that the tribunal, in the context of the TAQ1 judgment, would have entirely ignored the fact that she suffers from a disability. In this respect, the physician was maintaining that the existence of her disability had been raised at the hearing by referring to the term “discrimination” used in the TAQ1 judgment: [TRANSLATION] [172] It is not sufficient to establish a difference of treatment to conclude that a form of discrimination or unjustified distinction exists. It is important to analyze the situation on the basis of the nature and field of the medical activities that the physician will be called upon to carry out in respect of the obligations related to the professional privileges granted.4 In the context of the TAQ2 decision, the tribunal, called upon to determine whether the TAQ1 judgment was vitiated by a determining error because that it failed to deal with the issue of discrimination based on a physical disability and the resulting duty to accommodate, dismissed the physician’s application, thus upholding the TAQ1 judgment. In the light of the evidence, the tribunal, in the TAQ2 decision, concluded that the argument involving discrimination on the basis of a physical disability had never been raised at the first hearing, quite the contrary: [TRANSLATION] [36] It is noted in TAQ2 that the evidence submitted in the context of TAQ1 on the physical condition of the applicant is to the effect that her condition did not limit her in carrying out her clinical activities. The applicant never raised in TAQ1 or before the medical bodies that she refused to complete the required training because of her physical limitations. [37] The fact that the word “discrimination” was used in paragraph 172 of the decision is not sufficient to conclude that the issue of discrimination based on the physical disability of the applicant has been raised and argued. [38] Replaced in its context, one understands that the word “discrimination” is used in response to the applicant’s arguments to the effect that the training she was required to undergo was not required of another physician of the clinic of genic medicine taking into account his specializ [39] This panel cannot allow the applicant to introduce new arguments at the stage of the application for review.5 In the TAQ2 decision, the tribunal therefore concluded that it is normal for the TAQ1 judgment not to have dealt with the issue of discrimination since it was only raised at the stage of the application for review, not in the first instance. In the final analysis, the decision made in the TAQ1 judgment confirming the non-renewal of the privileges of the physician who had refused to undergo training was “sufficiently justified, clear and logic”.6 Balicki c. Centre hospitalier de l’Université de Montréal, 2017 QCTAQ 03466 (hereinafter the “TAQ2 decision”). Balicki c. Centre hospitalier de l’Université de Montréal, 2015 QCTAQ 08321 (hereinafter the “TAQ1 judgment”). Thibeault, Charles Olivier, “A physician’s refusal to undergo refresher training is sufficient grounds for a health institution to deny the renewal of status and privileges”, Lavery Health Law, newsletter No. 5, September 2015. TAQ1, prec., note 2, para. 172. TAQ2, prec, note 1, para. 36 to 39. Id., para. 42.

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  • Artificial intelligence and its legal challenges

    Is there a greater challenge than to write a legal article on an emerging technology that does not exist yet in its absolute form? Artificial intelligence, through a broad spectrum of branches and applications, will impact corporate and business integrity, corporate governance, distribution of financial products and services, intellectual property rights, privacy and data protection, employment, civil and contractual liability, and a significant number of other legal fields. What is artificial intelligence? Artificial intelligence is “the science and engineering of making intelligence machines, especially intelligent computer programs”.1 Essentially, artificial intelligence technologies aim to allow machines to mimic “cognitive” functions of humans, such as learning and problem solving, in order for them to conduct tasks that are normally performed by humans. In practice, the functions of artificial intelligence are achieved by accessing and analyzing massive data (also known as “big data”) via certain algorithms. As set forth in a report published by McKinsey & Company in 2013 on disruptive technologies, “[i]mportant technologies can come in any field or emerge from any scientific discipline, but they share four characteristics: high rate of technological change, broad potential scope of impact, large economic value that could be affected, and substantial potential for disruptive economic impact”.2 Despite the interesting debate over the impact of artificial intelligence on humanity,3 the development of artificial intelligence has been on an accelerated path in recent years and we witnessed some major breakthroughs. In March 2016, Google’s computer program AlphaGo beat a world champion Go player, Lee Sedol, by 4 to 1 in the ancient Chinese board game. The breakthroughs reignited the world’s interest in artificial intelligence. Technology giants like Google and Microsoft, to name a few, have increased their investments in the research and development of artificial intelligence. This article will discuss some of the applications of artificial intelligence from a legal perspective and certain areas of law that will need to adapt - or be adapted - to the complex challenges brought by current and new developments in artificial intelligence. Legal challenges Artificial intelligence and its potential impacts have been compared to those of the Industrial Revolution, a form of transition to new manufacturing processes using new systems and innovative applications and machines. Health care L’intelligence artificielle est certes promise à un bel avenir dans le Artificial intelligence certainly has a great future in the health care industry. Applications of artificial intelligence with abilities to analyze massive data can make such applications a powerful tool to predict drug performance and help patients find the right drug or dosage that matches with their situation. For example, IBM’s Watson Health program “is able to understand and extract key information by looking through millions of pages of scientific medical literature and then visualize relationships between drugs and other potential diseases”.4 Some features of artificial intelligence can also help to verify if the patient has taken his or her pills through an application on smartphones, which captures and analyzes evidence of medication ingestion. In addition to privacy and data protection concerns, the potential legal challenges faced by artificial intelligence applications in the health care industry will include civil and contractual liabilities. If a patient follows the recommendation made by an artificial intelligence system and it turns out to be the wrong recommendation, who will be held responsible? It also raises legitimate complex legal questions, combined with technological concerns, as to the reliability of artificial intelligence programs and software and how employees will deal with such applications in their day-to-day tasks. Customer services A number of computer programs have been created to make conversation with people via audio or text messages. Companies use such programs for their customer services or for entertainment purposes, for example in messaging platforms like Facebook, Messenger and Snapchat. Although such programs are not necessarily pure applications of artificial intelligence, some of their features, actual or in development, could be considered as artificial intelligence. When such computer programs are used to enter into formal contracts (e.g., placing orders, confirming consent, etc.), it is important to make sure the applicable terms and conditions are communicated to the individual at the end of the line or that a proper disclaimer is duly disclosed. Contract enforcement questions will inevitably be raised as a result of the use of such programs and systems. Financial industry and fintech In recent years, many research and development activities have been carried out in the robotic, computer and tech fields in relation to financial services and the fintech industry. The applications of artificial intelligence in the financial industry will vary from a broad spectrum of branches and programs, including analyzing customers’ investing behaviours or analyzing big data to improve investment strategies and the use of derivatives. Legal challenges associated with artificial intelligence’s applications in the financial industry could be related, for example, to the consequences of malfunctioning algorithms. The constant relationship between human interventions and artificial intelligence systems, for example, in a stock trading platform, will have to be carefully set up to avoid, or at least confine, certain legal risks. Autonomous vehicles Autonomous vehicles are also known as “self-driving cars”, although the vehicles currently permitted to be on public roads are not completely autonomous. In June 2011, the state of Nevada became the first jurisdiction in the world to allow autonomous vehicles to operate on public roads. According to Nevada law, an autonomous vehicle is a motor vehicle that is “enabled with artificial intelligence and technology that allows the vehicle to carry out all the mechanical operations of driving without the active control or continuous monitoring of a natural person”.5 Canada has not adopted any law to legalize autonomous cars yet. Among the significant legal challenges facing autonomous cars, we note the issues of liability and insurance. When a car drives itself and an accident happens, who should be responsible? (For additional discussion of this subject under Québec law, refer to the Need to Know newsletter, “Autonomous vehicles in Québec: unanswered questions” by Léonie Gagné and Élizabeth Martin-Chartrand.) We also note that interesting arguments will be raised respecting autonomous cars carrying on commercial activities in the transportation industry such as shipping and delivery of commercial goods. Liability regimes The fundamental nature of artificial intelligence technology is itself a challenge to contractual and extra-contractual liabilities. When a machine makes or pretends to make autonomous decisions based on the available data provided by its users and additional data autonomously acquired from its own environment and applications, its performance and the end-results could be unpredictable. In this context, Book Five of the Civil Code of Québec (CCQ) on obligations brings highly interesting and challenging legal questions in view of anticipated artificial intelligence developments: Article 1457 of the CCQ states that: Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. Article 1458 of the CCQ further provides that: Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. Article 1465 of the CCQ states that: The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault. The issues of foreseeable damages or direct damages, depending on the liability regime, and of the “autonomous act of the thing” will inescapably raise interesting debates in the context of artificial intelligence applications in the near future. In which circumstances the makers or suppliers of artificial intelligence applications, the end-users and the other parties benefiting from such applications could be held liable – or not – in connection with the results produced by artificial intelligence applications and the use of such results? Here again, the link between human interventions - or the absence of human interventions - with artificial intelligence systems in the global chain of services, products and outcomes provided to a person will play an important role in the determination of such liability. Among the questions that remain unanswered, could autonomous systems using artificial intelligence applications be “personally” held liable at some point? And how are we going to deal with potential legal loopholes endangering the rights and obligations of all parties interacting with artificial intelligence? In January 2017, the Committee on Legal Affairs of European Union (“EU Committee”) submitted a motion to the European Parliament which calls for legislation on issues relating to the rising of robotics. In the recommendations of the EU Committee, liability law reform is raised as one of the crucial issues. It is recommended that “the future legislative instrument should provide for the application of strict liability as a rule, thus requiring only proof that damage has occurred and the establishment of a causal link between the harmful behavior of a robot and the damage suffered by an injured party”.6 The EU Committee also suggests that the European Parliament considers implementing a mandatory insurance scheme and/or a compensation fund to ensure the compensation of the victims. What is next on the artificial intelligence front? While scientists are developing artificial intelligence at a speed faster than ever in many different fields and sciences, some areas of the law may need to be adapted to deal with associated challenges. It is crucial to be aware of the legal risks and to make informed decisions when considering the development and use of artificial intelligence. Artificial intelligence will have to learn to listen, to appreciate and understand concepts and ideas, sometimes without any predefined opinions or beacons, and be trained to anticipate, just like human beings (even if some could argue that listening and understanding remain difficult tasks for humans themselves). And at some point in time, artificial intelligence developments will get their momentum when two or more artificial intelligence applications are combined to create a superior or ultimate artificial intelligence system. The big question is, who will initiate such clever combination first, humans or the artificial intelligence applications themselves? John McCarthy, What is artificial intelligence?, Stanford University. Disruptive technologies: Advances that will transform life, business, and the global economy, McKinsey Global Institute, May 2013. Alex Hern, Stephen Hawking: AI will be “either best or worst thing” for humanity, theguardian. Engene Borukhovich, How will artificial intelligence change healthcare?, World Economic Forum. Nevada Administrative Code Chapter 482A-Autonomous Vehicles, NAC 482A.010. Committee on Legal Affairs, Draft report with recommendations to the Commission on Civil Law Rules on Robotics, article 27. (2015/2103 (INL))

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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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  • Authorizations of care and placement: the Québec Court of Appeal imposes parameters on requests for adjournment and reaffirms the admissibility of hearsay in expert evidence

    On October 28, 2016, the Québec Court of Appeal1 affirmed a decision of the Superior Court of Québec granting an application for the authorization of care presented by the Centre intégré de santé et de services sociaux des Laurentides (the “CISSS”). Essentially, the patient submitted three grounds for contesting the application. First, he argued that the refusal of the first instance judge to grant the patient’s request for an adjournment deprived him of his right to present expert evidence, thereby denying his right to a full answer and defence. Next, the patient claimed that the conditions prescribed by the legislation and case law for granting the CISSS’s application had not been met. Finally, he submitted that the duration of the order obtained was excessive and should be reduced to one year. As in the case of F.D. c. Centre universitaire de santé McGill,2 the Court held that the decision of whether or not to postpone a hearing is a matter of case management. The Court of Appeal must show great deference to the judge hearing the matter, who has broad discretionary powers to ensure the proper conduct of the proceeding of which they are seized.3 Therefore, a decision on a request for an adjournment can only be overturned if it is unreasonable given the circumstances of the case and if it is contrary to the best interests of justice.4 In this case, the patient, who at the time, was being held at the St-Jérôme Hospital, had already waited several months for a hearing before the Review Board for Mental Disorder (“RBMD”) at the time the CISSS filed its application for authorization of care with the Superior Court. Moreover, due to the patient’s level of agitation, it was necessary to adjourn the hearing before the RBMD and to keep the patient in detention until a decision was made by the Superior Court on the application for authorization of care, which was presentable on May 19, 2016. On that date, the patient made an initial request for an adjournment so that he could retain a lawyer, which was granted. Even at that time, the Court noted that the matter was an urgent one — to ensure the patient’s rights were respected. On May 26th, the Court adjourned the file for a second time and set a date for a hearing on the merits for July 21st, which was agreed to by the parties. Even before the file was heard, the patient’s lawyer asked that the case be postponed for a third time on the grounds that the psychologist he wanted to call as a witness was not available, without providing more information as to whether another expert could be called. After suggesting a one week adjournment, which was also refused by the patient’s lawyer, the first instance judge dismissed the third request for a postponement. In this context, the Court of Appeal held that this decision was not unreasonable, noting that applications dealing with personal integrity take priority over all others,5 which is indicative of their inherent urgency. Indeed, the Court stated as follows: [translation] “files dealing with the integrity of persons must proceed expeditiously and everyone is required to cooperate to this end, including the party who is the subject of the application”.6 Here, the urgency was even greater because the patient was being kept in detention at the St-Jérôme Hospital pending his hearing before the RBMD. Furthermore, the patient’s lawyer had not facilitated the progress of the patient’s file and admitted that he had only contacted one expert. The Court held that the context of an application for an adjournment requires more details from the person seeking it, who cannot simply satisfy himself by saying that other unidentified people could potentially be contacted, without providing more details. In short, the Court held that this application for a postponement was dilatory in nature. As to whether the Superior Court erred in granting the CISSS’s application for authorization of care, the Court of Appeal answered no. One could not necessarily conclude, based on the fact that the judge’s judgment was rather short, that he had ignored the criteria set out in the case law in his analysis. In his assessment of the criteria, the judge committed no error in law in accepting the expert’s testimony, which was in fact largely based on hearsay. Citing the authors, Royer and Lavallée,7 the Court held that the case law created an exception to the rule against hearsay in expert evidence in cases involving necessity and convenience. Expert witnesses are therefore permitted to provide an opinion based on facts that they have gathered out of court without requiring that such facts be established by evidence in court in order to add opinion probative value to their opinion. This was the sense in which the Court held that such evidence is admissible and relevant. Despite the appellant’s request to reduce the duration of the order to two years, the Court of Appeal kept the duration of the treatment at three years, noting that the time period requested in this type of file cannot be set based on general standards, but must instead be assessed and personalized according to the specific situation of each patient. Furthermore, the Court pointed out that there are two review mechanisms in such matters, namely, the bi-annual review by the council of physicians, dentists and pharmacists of the particular institution, and the review provided in article 322 of the Code of Civil Procedure, which permits the Superior Court to reassess a decision at any time upon the presentation of new facts. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, 2016 QCCA 1734. F.D. c. Centre universitaire de santé McGill (Hôpital Royal Victoria), 2015 QCCA 1139. Ibid., para. 30. Code of Civil Procedure, CQLR, c. C-25.01, art. 9, para. 3, and 17-20 (hereinafter the “C.C.P.”). Art. 395 C.C.P. D.A. c. Centre intégré de santé et de services sociaux des Laurentides, supra, note 1, para. 15. Jean-Claude Royer, La preuve civile, 4th ed., by Jean-Claude Royer and Sophie Lavallée, Cowansville, Éditions Yvon Blais, 2008, p. 339.

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  • Put that perimeter in your pipe and smoke it: the imminent broadening of the prohibition on smoking within a nine-meter radius

    On November 26, 2016, the new provisions of the Tobacco Control Act1 (the “Act”) will come into force. One of these provisions will considerably expand the scope of the rule which currently prohibits smoking within a nine-meter radius of any door leading to an enclosed place governed by the Act. This broadening comes about in two ways. The prohibition of smoking within a nine-meter radius of doors will apply to more areas Not only will smokers have to respect the ban within a nine-meter radius of any door, they also will have to observe the nine-meter rule around openable windows and air vents leading to an enclosed place where smoking is forbidden.2 Broadening of the areas where smoking is prohibited within a nine-meter radius The prohibition currently applies within a nine-meter radius of doors leading to any of the following enclosed spaces:3 Facilities maintained by a health and social services institution and premises where services are provided by an intermediate resource; Facilities operated by a childcare centre or day care centre; Enclosed spaces where community or recreational activities intended for minors are held.4 Beginning on November 26, 2016, smoking will also be prohibited within a nine-meter radius of any door, openable window or air vent leading to the following enclosed spaces:5 Facilities maintained by a health and social services institution and premises where services are provided by an intermediate resource; Premises or buildings placed at the disposal of an educational institution; Facilities operated by a childcare centre or day care centre; Enclosed spaces where activities of a sports or recreational, judicial, cultural or artistic nature are carried on, or where conferences, conventions or other similar events are held; Enclosed spaces where community or recreational activities intended for minors are held; Enclosed spaces where the activities held may be attended only by persons explicitly or implicitly invited or authorized by the host; Enclosed spaces used by a non-profit legal person or by an association, circle or club, whether a legal person or not, to which only members and their guests have access; Enclosed spaces where prevention, assistance and support services, including temporary lodging services, are offered to persons in distress or persons in need of assistance; Tourist accommodation establishments and the buildings of outfitting operations; Enclosed spaces where meals for consumption on the premises are ordinarily offered to the public in return for remuneration; Establishments operating under a public house, tavern or bar permit; Bingo halls; Workplaces; Premises used for detention; All other enclosed spaces to which the public has admittance.6 Notes The effect of this broadening is a significant expansion in the scope of the smoking prohibition within a nine-meter radius of any door leading to an enclosed place enumerated by the Act. The fact that the prohibition will apply within a nine-meter radius of any door, openable window and air vent leading to a workplace is in itself a significant change not only for smokers, but for all of Quebec’s employers. It is worth recalling that the Act also contains provisions regarding the operators of the spaces listed above: The obligation to post notices visible to the people using the place or business, indicating the areas where smoking is prohibited;7 Prohibition from tolerating smoking in an area where it is prohibited.8 Let us not forget that, in November 2015, the legislator reinforced the Act by increasing the liability of the administrators and executives of companies subject to respect it, increasing the amounts of the fines they are subject to and making it easier for the prosecution to prove the violations.9 In addition to being vigilant, companies should ensure that a policy regarding the use of tobacco products10 is in place and should also inform employees, clients, visitors and suppliers of the content of their tobacco control policy. CQLR, c. L-6.2. An Act to Bolster Tobacco Control, Bill n°44 (assented to on November 26, 2015), 1st sess., 41st legis., ss. 6 and 76. Except if the activities referred to are held in a dwelling. Tobacco Control Act, see note 1, ss. 2 and 2.2. Except if the activities referred to are held in a dwelling. Bill n°44, see note 2, s. 6. S. 10 of the Act. S. 11 of the Act. In this regard, please refer to our Need to know newsletter entitled “Tobacco Control and E-cigarettes: New Challenges for Businesses“ (March 2016), online under “Publications”. Such a policy should also seek to control the use of marijuana, as well as the use of any substance that can be smoked.

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  • End-of-life care (part 2 of 2)

    In our newsletter No. 8, we discussed advance medical directives, which are restricted to three specific clinical situations and allow a person to consent to or refuse in advance five specific types of care in the event that the person in question becomes incapable of consenting to them. In addition to advance medical directives, the Act respecting end-of-life care provides a framework for two other types of end-of-life care, that is: medical aid in dying and continuous palliative sedation. However, advance medical directives do not allow one to consent in advance to the administration of medical aid in dying or to continuous palliative sedation. These types of end-of-life care are provided in a very precise context, which is the subject of this newsletter. What is medical aid in dying ? The law defines medical aid in dying as “care consisting in the administration by a physician of medications or substances to an endof- life patient, at the patient’s request, in order to relieve their suffering by hastening death.”1 Not everyone is allowed to request medical aid in dying. Such a request is dealt with according a stringent process. Who may request medical aid in dying? Only a person who meets all the following conditions may obtain medical aid in dying in Québec: being an insured person within the meaning of the Health Insurance Act (chapter A-29); being of full age and capable of giving consent to care; being at the end of life; suffering from a serious and incurable illness; being in an advanced state of irreversible decline in capability; and experiencing constant and unbearable physical or psychological suffering which cannot be relieved in a manner the patient deems tolerable.2 How to request medical aid in dying? The request for medical aid in dying is made by filling out a form prescribed by the Minister. Patients must request medical aid in dying themselves. The form must be signed and dated by the patient in the presence of and countersigned by a health or social services professional. In addition, two independent witnesses of full age must be present at the signature and countersign the form (i.e. a potential heir may not be considered as being independent). The form must then be given to the patient’s attending physician. If the patient cannot date and sign the form because he3 does not know how to write or is physically incapable of doing so, an authorized third person who is not a member of the team responsible for caring for the patient may do so in the patient’s presence. The authorized third party must not have a potential interest in the estate of the patient. Persons who request medical aid in dying may withdraw their request at any time and by any means. What are the prior requirements for a physician before administering medical aid in dying? Ten full days (excluding the day on which the request was made) must elapse between the request for medical aid in dying and it being administered, unless the life condition requires otherwise. Before administering medical aid in dying, the physician must make sure that the patient consents. He must also: make sure that the patient satisfies all the conditions to be eligible for medical aid in dying (see the “Who may request medical aid in dying?” section) ascertain with the patient that the request is made in a free and informed manner ascertain that the request is not made as a result of external pressure ascertain that the patient is informed of the prognosis for the illness, as well as other therapeutic possibilities and their consequences verify the persistence of suffering and that the patient’s wish to obtain medical aid in dying remains unchanged verify with the care team members who have regular contact with the patient that he consents to receive medical aid in dying make sure that the patient has had the opportunity to discuss the request with the persons he wished to contact make sure that the request has been made using the prescribed form, which has been signed and dated by the person making the request or the authorized third party before two independent witnesses who have also signed and dated make sure that the patient has been advised that he could at any time and by any mean withdraw his request for medical aid in dying In addition to making sure that the request complies with all the above conditions, the physician must also obtain the written opinion of a second physician confirming that the patient is eligible to receive medical aid in dying. The physician consulted must be independent of both the patient requesting medical aid in dying and the physician seeking the second medical opinion. The physician must consult the patient’s record and examine the patient. Once the verification of all of the above criteria is done and the second medical opinion is obtained, the physician will provide medical aid in dying after the expiry of the period of 10 full days referred to above. Continuous palliative sedation The Act respecting end-of-life care also governs continuous palliative sedation. Palliative care means the total and active care delivered by an interdisciplinary team to patients suffering from a disease with reserved prognosis, in order to relieve their suffering, without delaying or hastening death. Reserved prognosis refers to a disease at an advanced stage jeopardizing survival within a period of less than two years or terminal illness leading to probable death in the near future. Continuous palliative sedation is palliative care consisting in administering drugs or substances to an end-of-life patient for the purpose of relieving his suffering by rendering him unconscious in a continuous manner until he dies.4 Consent to continuous palliative sedation is given by using the form prescribed by the Minister according to a procedure which is similar to that applicable to medical aid in dying. The physician must therefore obtain a free and informed consent from the patient. This consent must be given by a person capable of consenting to care or, if that person is incapable, by a person authorized by law or pursuant to a protection mandate. The patient or his representative must be informed of the prognosis for the illness, the irreversible nature of the sedation and the anticipated duration of the sedation. The physician must also make sure that the decision does not result from external pressure. The patient or his representative must be informed of the patient’s right to refuse or put off the procedure and the consequences of either of his choices. Conclusion It is important to understand that the entire end-of-life process is conducted with the greatest respect for the patient who made the request and that the patient must be treated with understanding, compassion, courtesy and fairness, with respect for his dignity, autonomy, needs and safety. Open and honest communication is also favoured by the members of the medical team in order to provide the patient with quality end-of-life care, which is adapted to his needs for the duration of the process. An Act respecting end-of-life care, RSQ c S-32.0001, sec. 3 para. 6. An Act respecting end-of-life care, RSQ c S-32.0001, sec. 26. The masculine gender is used in this text solely for the sake of concision. An Act respecting end-of-life care, RSQ c S-32.0001, sec. 3 para. 4 and 5.

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  • Health-care institutions: What is your responsibility when your are faced with a harassing and disruptive visitor?

    Last June 16, the Superior Court of Québec1 rendered a safeguard order in an injunction proceeding in favour of a health-care institution the purpose of which was to set conditions for the visits of the daughter of a user of the institution who was an incapable person lodged there, as well as her interactions with the user and the staff. In this case, the daughter was in profound disagreement with all of the decisions made by the persons with power of attorney over the person and property of the user, namely, her two other children, regarding the choice of her place of lodging and the care that was to be provided to her. During her daily visits, this person acted aggressively toward the care workers, going so far as to enter into the nurses’ station, placing herself in front of the door to prevent them from going out, yelling at them, and following them outside the institution. Also, she ignored the care plans set up by the institution’s multidisciplinary team for the user’s health and prevented the care from being adequately provided to her, jeopardizing her health and safety. Despite the attempts of the health-care institution’s management to reach an agreement with this person to set guidelines for her visits and ensure that she complied with precise rules of conduct (e.g.: not interfere with the care, not intimidate the employees), she did not change her behaviour. The situation became intolerable and unmanageable for the clinical staff and the managers involved. Given the circumstances, it became necessary for the health-care institution to file an application for a permanent injunction seeking a safeguard order due to the urgency of the situation. To decide on the application for a safeguard order, judge Lise Bergeron of the Superior Court had to weigh the visiting rights of the user’s child, the user’s right to receive care in a safe environment (s. 100 of the Act respecting health services and social services) and the employees’ right to work in an environment free from harassment (s. 81.19 of the Act respecting labour standards). In her analysis, judge Bergeron held that where a person’s visits are preventing a health-care institution from fulfilling the obligations imposed on it by law by placing a user in a risky situation and exposing its employees to harassment, the court is justified in considerably restricting the visiting rights of such person, imposing strict rules on them, and authorizing an institution to implement the necessary measures to ensure they are complied with. Consequently, judge Bergeron ordered the beneficiary’s daughter to: refrain from being within the property limits of the institution except for authorized visits to be held on Wednesdays from 1:00 p.m. to 3:00 p.m., under the supervision of a security guard; go to the nurses’ station upon her arrival for and departure after her authorized visits; abide by the care plan put in place by the institution for the patient; not interfere with the care provided to the patient; and not communicate with the institution’s employees, except in a situation requiring the urgent intervention of such a person. To prevent such a situation from becoming intolerable for the users and staff members, a health-care institution must take prompt action against a person who displays disruptive behaviour by implementing clear, justified and documented control measures while prioritizing the user’s rights. Centre intégré universitaire de santé et de services sociaux de la Capitale-Nationale (CIUSSS) c. J.D., 2016 QCCS 2858.

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  • Advance Medical Directives (Part 1 of 2)

    Consent to End-of-Life Care Article 11 of the Civil Code of Québec1 states that no one can be made to undergo care without his consent. The Act respecting end-of-life care2 (“the Act”), passed by the National Assembly of Québec, came into force on December 15, 2015. Since that date, a person can give or refuse consent to specific forms of end-of-life care, provided he has given advance medical directives (“AMDs”) for that purpose. If no AMDs are in place, and the individual is incapable of giving or refusing consent to such care, a person authorized by the Act, or by a protection mandate which the individual gave in anticipation of incapacity, can give or refuse consent in place of the individual. AMDs must be in writing. Form and transmission of content Only two forms of AMDs are accepted, both of which are in writing: 1. Notarial deed en minute:Your notary would be a good adviser for this form of AMDs, usually prepared at the same time as a will, or at the same time as a general power of attorney and protection mandate. 2. Using the form available from the Régie de l’assurance-maladie du Québec (RAMQ):This form must be filled out and signed by its author in the presence of two adult witnesses. Persons wishing to obtain the form can request it from the RAMQ by phone. In our opinion, a notarial deed is the safest way to ensure the person’s wishes are respected. Such a document is considered proof of the individual’s identity and capacity on the date the AMDs therein are given. Once AMDs are drafted, they must be entered in the AMD registry kept by the RAMQ. Thanks to that measure, a doctor who has a patient’s health insurance card will have access to the registry at all times, and can read the patient’s AMDs, if any. If the patient has given AMDs and they are in the registry, the doctor must carry them out. Provided the formalities for preparing the AMDs have been rigorously complied with, the patient has the assurance that his or her wishes, as set out in the AMDs, must be implemented if the patient is unable to make his or her consent or refusal known. AMDs are restricted to THREE CLINICAL SITUATIONS and FIVE SPECIFIC TYPES OF CARE. Clinical situations AMDs are limited to the following three end-of-life situations: the person is at the end of life and is suffering from neurodegenerative impairment; the person’s cognitive functions have been severely and irreversibly compromised, resulting in a comatose or vegetative state; or the person’s cognitive functions have been severely and irreversibly compromised, resulting in a state of dementia at an advanced stage. Specific types of care By means of AMDs, a person can consent in advance to the following care, or refuse it in advance, in the event that he becomes incapable and the situation arises: Cardiopulmonary resuscitation Ventilator-assisted breathing or breathing by another device Renal dialysis treatment Forced or artificial feeding Forced or artificial hydration This means that it is not possible to consent to, or refuse, types of care other than the five types mentioned above. A person can consent to or refuse certain specific types of care in any of the clinical situations specified above. Therefore, AMDs can cover the three clinical situations referred to above, or just one or two of them, and, for each of the clinical situations, can consent to, or refuse, any or all the types of care listed above. For example, a person might give AMDs only for cases where his cognitive functions are severely and irreversibly compromised, resulting in a comatose or vegetative state. For that clinical situation, the person can accept or refuse any or all the care mentioned above — that is, cardiopulmonary resuscitation, assisted breathing, dialysis, forced or artificial feeding, and forced or artificial breathing. It should be clear from the foregoing remarks that AMDs are not a substitute for protection mandates given by a person. The directives issued in AMDs complement a person’s protection mandate, and are intended to consent in advance to certain types of care in specific clinical situations, or to refuse them in those situations. Such directives cannot be challenged by the individual’s friends or family, and the medical team must comply with them. AMDs can be modified or revoked at any time, in accordance with the same formalities discussed above. The next column in this series will be about medical aid in dying. It will help readers understand the difference between AMDs, and medical aid in dying. Civil Code of Québec, CQLR, c. C-1991. An Act Respecting End-of-Life Care, RSQ, c. S-32.0001.

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  • Authorization of treatment and placement: The Québec Court of Appeal clarifies the meaning of article 393 C.C.P.

    On May 10, 2016, the Québec Court of Appeal1 confirmed a Superior Court decision allowing an application for authorization of treatment and placement to a patient. The application had been brought by the Douglas Mental Health University Institute, commonly known as the Douglas, or the Douglas hospital. Essentially, the patient was claiming that the Douglas’s failure to serve a notice identical to the one prescribed by article 393, paragraph 2 of the Code of Civil Procedure2 along with the application seeking his hospitalization and treatment was fatal to the application. According to the patient, this mistake resulted with the proceedings being undertaken by the Douglas, necessarily ensuing in an invalid judgment. The notice referred to in article 393, para. 2 is a new legal requirement, resulting from the entry into force of Quebec’s new Code of Civil Procedure. Its purpose is to remind respondents of their rights, including their right to legal representation. Using a textual interpretation approach, the Court analyzed the terms “conforme au” and “in keeping with”, and found that the notice must be similar to the model notice established by the Minister of Justice, but not necessarily identical. The Court added that if the notice needed to be identical, the legislator would have said so in unequivocal terms. The Court held that in order to be in keeping with the provision, the notice must, in substance, meet the objective pursued by the legislator. That objective is to inform vulnerable people of their rights to enable them to exercise those rights and be heard. Thus, the notice is a protective procedural requirement and is of public order, and only the person in favour of whom it has been established can waive the notice. The notice sent to the patient in this case made reference to his right to be heard and to be represented by a lawyer, but it did not state that any judgment ultimately rendered in the matter could be appealed. Nonetheless, the Court found that the type of objection made by the patient was a preliminary objection, which should have been made earlier. Furthermore, since the patient was heard at the hearing in the Superior Court, it would not have been appropriate to allow the patient to invoke this procedural irregularity at this subsequent stage. N.C. c. Institut universitaire en santé mentale Douglas, 2016 QCCA 856. JUSTICE QUÉBEC. « Avis accompagnant une demande concernant un majeur ou un mineur de 14 ans et plus qui touche son intégrité, son état ou sa capacité : Demande présentée devant le tribunal », (consulted June 3, 2016). The English version of the form, “Notice accompanying an application to the court relating to the personal integrity, status or capacity of a minor 14 years of age or older”, (consulted June 28, 2016).

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  • Sale of Ophthalmic Lenses Online: the Québec Court of Appeal Decides

    In a unanimous decision rendered on May 16, 2016,1 the Québec Court of Appeal confirmed that the delivery of ophthalmic lenses purchased online from suppliers who are not members of the Ordre des optométristes (Order of Optometrists) (“Order”), or the Ordre des opticiens d’ordonnances (Order of Dispensing Opticians), does not violate the Optometry Act 2 (“OA”) or, by necessary extension, the Dispensing Opticians Act.3 This decision was the result of an appeal from a judgment issued on December 3, 20144 by the Superior Court, in which the Superior Court reached the same conclusion as the Court of Appeal. The facts in this case were as follows: Coastal Contacts Inc. (“Coastal”), now carrying on business as Clearly, is a company based in Vancouver with no establishment in Quebec, which sells ophthalmic lenses through its websites to purchasers in many Canadian provinces, including Quebec. Its operations are subject to and compliant with the legislation in force in British Columbia.5 Quebec purchasers can either deal directly with Coastal or instead with website operators who redirect potential customer requests directly to Coastal. Gestion Progex (“Progex”), one of the respondents in the litigation, was one such website operator. In this case, the Order contended that Coastal and Progex violated the OA by claiming they had the right to perform a professional activity that is reserved for the members of the Order of Optometrists of Quebec, or by acting in a manner that gave the impression they were authorized to do so. Essentially, the Order alleged that the sale of ophthalmic lenses in Quebec was an act reserved for optometrists under sections 16 and 25 of the OA, and for dispensing opticians under section 8 of the Dispensing Opticians Act. The Order put forward two main arguments in support of its claims. First, it claimed that section 16 of the OA should be read as follows: [translation] “The practice of optometry is an act which […] deals with […] the sale of ophthalmic lenses.” Based on this interpretation, and despite the fact that, according to the general rules of law, the contract was concluded in British Columbia, section 16 had been infringed because Coastal’s actions, including the placing of orders, payment, confirmation of the order, and delivery of the ophthalmic lenses, were performed in Quebec. On this point, the Court found that section 16 does not allow the sale of ophthalmic lenses to be broken down into various separate tangible or intangible acts so as to include them in the exclusive area of practice of optometrists. Secondly, the Order argued that the term “sale” used in section 16 of the OA should be interpreted more broadly than when it is used in the Civil Code of Québec. It contended that this broadening of the concept of “sale” was justified on the basis of the primary mission of the Order, which is to ensure the protection of the public. Therefore, according to the Order, the term “sale” must allow for the regulation of any conduct [translation] “[…] consisting of controlling the distribution of a regulated product to the public […]”.6 After reviewing the decisions in Eaton7, Celgene Corp8 and Meditrust 9, the Court held that it could not accept the interpretation put forward by the Order. The Court observed that the only act attributable to Coastal and which took place in Quebec was the delivery of the ophthalmic lenses, since the other acts identified by the Order related more to the freedom of action of the purchaser, over which the Order has no jurisdiction. As the Superior Court had also noted in a case between the Order of Optometrists and the Order of Dispensing Opticians,10 the Court of Appeal stated that the simple delivery of ophthalmic lenses is only incidental to, and not an inherent component of, the sale. In addition, the Court found that lenses are not a product whose manufacture, supply or sale are so regulated that this would justify a broad interpretation of the monopoly on sales claimed by the Order for the benefit of its members. Moreover, such an interpretation would be inconsistent with the principle that statutes which create professional monopolies should be interpreted narrowly. Following its analysis, the Court therefore held that [translation] “the mere delivery of ophthalmic lenses in Quebec […] cannot constitute either a violation of section 16 or the first paragraph of section 25, or the illegal exercise of optometry in Quebec.” 11 In light of this conclusion, the Court found that it was not necessary for it to rule on the territorial scope of section 16 of the OA. However, it reiterated the recognized legal principle that, in the absence of a contrary provision, whether express or implied, one must assume that the author of the OA intended it to apply only to individuals, places, actions and events located within the territory of Quebec. Coastal was represented in this file by members of Lavery’s Health law group. Lavery will keep you informed of any new developments in this case. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2016 QCCA 837. Optometry Act, CQLR, c. O-7. Dispensing Opticians Act, CQLR, c. O-6. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2014 QCCS 5886. Health Professions Act, [RSBC 1996] Chapter 183; Optometrists Regulation, B.C. Reg. 200/2012; Opticians Regulation, B.C. Reg. 118/2010. Excerpt from the factum of the Order, cited in para. [28] of the decision. Association pharmaceutique de la province de Québec c. T. Eaton Co. Ltd., (1931) 50 B.R. 482. Celgene Corp c. Canada (Attorney General), [2011] 1 S.C.R. 3. Ordre des pharmaciens du Québec c. Meditrust Pharmacy Services Inc., [1994] R.J.Q. 2833 (C.A.) (authorization for leave to appeal dismissed by the Supreme Court, [1995] 2 S.C.R. ix). Ordre des opticiens d’ordonnances du Québec c. Ordre des optométristes du Québec, 2013 QCCS 1532. Ordre des optométristes du Québec c. Coastal Contacts Inc., supra, note 1, cited in para. [71] of the decision.

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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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