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Constant supervision: how does the recent court decision impact CPEs, daycare centres and home childcare providers?
On January 15, 2020, the Court of Québec handed down an important decision that could have an impact very quickly on the entire childcare network.1. In its ruling dealing with a breach of the obligation to provide constant supervision of the children, the court questioned the concept of auto-pauses (also known as pauses jumelées or pauses autogérées). This widespread practice consists of having a single childcare staff member, usually an educator, temporarily supervise two groups of napping children to allow another childcare staff member to go on a break. The court took advantage of the opportunity to delimit the obligation of constant supervision set out in section 100 of the Educational Childcare Regulation2 (The “Regulation”), awhich applies indiscriminately to all childcare providers: the centres de la petite enfance (CPEs), daycare centres and home childcare providers. Finally, the court made some interesting comments on the calculation of the ratios, although this was not a central issue in the dispute. The court’s reasons and comments will likely lead childcare providers to question the organization of their work, their practices, directives and even their individual or collective work agreements. Decision Facts In April 2018, an inspector from the Ministère de la Famille visited a CPE to conduct a full inspection for the renewal of its permit, and to deal with a complaint about child supervision during naps. In the afternoon, the inspector entered a room and found seven children lying on small mats scattered on the floor. Some of them were not sleeping and no educator was present. However, in an adjacent room, an educator was sitting along the back wall. This second room had ten other children, also lying down for a nap. The evidence showed that an observation window separated the two rooms, which were also connected by a shared bathroom. The court noted that it was impossible at that time for the educator to get a full view of the adjacent room, in particular, because of the furniture that was dispersed about the room and partially obstructed the view. A statement of offence for failure to maintain constant supervision was issued to the CPE, although the practice of placing two groups under the supervision of a single educator at nap time, to allow a colleague to take a break, is a well-known practice. The concept of constant supervision To date, there are very few decisions dealing with the concept of constant supervision in a childcare context. The court, therefore, used this opportunity to consider this concept in greater detail [translation]: «  The CPE [...] must ensure that the children to whom childcare is provided are constantly supervised for their safety;  The French adjective constante [constant] is defined in the Larousse dictionary as follows: [translation] that which is uninterrupted, continuous; durable.  Le Petit Druide des synonymes et des antonymes has the following synonyms for the adjective constante: [translation] continual, continuous, at every moment, unceasing, uninterrupted, perpetual, without end. The antonyms are: [translation] discontinuous, intermittent, irregular.  The Larousse dictionary defines the French word surveiller [to supervise] as the act of observing attentively. In the decision in Directeur des poursuites criminelles et pénales c. Centre de la petite enfance (CPE) Le petit sentier, Judge Rivest noted that it is the action of watching over someone in one’s care and/or for whom one is responsible, taking care of them, being attentive.  There are few reported decisions dealing with this issue. Based on the decisions filed with the pleadings, the Court finds that the adequacy of the supervision depends on the specific facts of each case.  Since young children are involved in this case, the Court finds that this supervision must be visual and auditory to be effective. (References omitted) Applying this reasoning to the facts in this case, the court found, beyond any reasonable doubt, that the children in the group for which there was momentarily no educator were not under constant, but rather “intermittent", supervision. Due diligence and the auto-pause concept At trial, the CPE presented a so-called "due diligence" defence, arguing that all reasonable precautions were taken to avoid committing the offence. In particular, it referred to an internal memo sent to all the employees on how to proceed during an auto-pause. According to the memo, educators must be near the observation window and walk regularly between the two rooms to verify the children’s status. In the event that a child wakes up, the instruction is then to respond to his or her needs promptly and engage in a quiet game with the child in order to respect the other children’s nap time. The CPE demonstrated that this directive had been communicated to all the staff and that it was regularly discussed at meetings. In addition, a pedagogical adviser ensured that this rule was respected. The failure to comply with this obligation could result in disciplinary sanctions up to and including dismissal. Despite the foregoing, the court rejected the CPE’s due diligence defence. It stated that in the context of an auto-pause, the directive was not able to bring the CPE into compliance with the Educational Childcare Act3 (the “Act”). It was in fact inevitable, in the court's view, that the educator would have to attend to a specific child at some point in time and would no longer be able to see what was happening in the other room. The court concluded by adding that a reasonable person placed in the same circumstances should provide for a sufficient quantity of staff to replace the educators during their breaks. On this point, it noted that [translation] “the children's safety must take precedence over the economic interests of the [childcare] service providers”4. Furthermore, it stated that, despite the CPE's efforts to ensure compliance with its directives, it was the auto-pause concept itself that was problematic and, in the court’s words, [translation] “completely inappropriate”5. Thus, the CPE was convicted of breaching the obligation of constant supervision of the children and ordered to pay a fine. What is the impact with respect to the organization of work for childcare providers? The court’s decision will likely raise doubts about the organization of work for many childcare service providers, particularly permit holders who make use of the auto-pause concept. However, the ramifications could be much more far-reaching. Level of supervision We can easily imagine that the issue of adequate supervision could give rise to many challenges on a daily basis. The court indicated that such supervision must be auditory and visual, but may also vary depending on the circumstances. The analysis of a situation could therefore be influenced by various things, such as the premises (private residence, facility, park, etc.), their layout (presence of furniture, size of openings, etc.), the location of the workers and children while services are being provided, and the nature of the activities conducted. Given the court’s requirement that the supervision must be both visual and auditory, the assessment of its adequacy would seem to be all the more likely to raise questions for home childcare providers and compliance officers in coordinating offices who conduct visits to monitor these providers. Calculating ratios It should be noted that the offence with which the CPE was charged in this case did not concern compliance with the ratios provided for under the Act for the number of children to childcare staff that are required to be present on the premises during the provision of services. The issue before the court was strictly to determine whether the CPE was providing constant supervision of the two groups of children at the time of the inspection. While the court stated that it would reserve its comments on the question of the ratio, it nevertheless clearly added that it did not agree with the CPE’s interpretation of the number of childcare staff that were needed to care for the children in its facility. Thus, despite the fact that the educators could not leave the facility during their breaks, the court noted that by ordering the educators to split their time between two rooms, the CPE was disregarding the ratios provided for in the Act. Thus, the court's view was evidently that the ratios set out in section 21 of the Act would apply to each group of children, and could not be calculated as a whole, across the entire facility. The auto-pause concept In light of the specific facts submitted as evidence, the court found that the very concept of auto-pause is inappropriate. While some might therefore be tempted to conclude that all auto-pauses should be abolished, or that they are necessarily illegal, it should be remembered that each situation must be analyzed separately, based on its specific circumstances. Thus, a permit holder may still be able to show that they are in compliance with their obligation of constant supervision, for example, through a combination of adequate premises, resources, work instructions and protocols. This being said, the fact that the court has raised doubts about the very concept of the auto-pause will necessarily lead permit holders to question the organization of their work. In a context in which the court relies, inter alia, on its own calculation of the ratios applicable to the group of children, it could be even more complex for permit holders to determine the scope of their obligations. The same thing can be said for the manner in which they will be able to meet their obligations taking into account their mission, budget, human and material resources, individual or collective work agreements, and the specific needs of the children in their care. Conclusion The decision rendered by the Court of Québec on January 15, 2020 sheds light on the notion of constant supervision in the context of the provision of childcare services. Thus, to ensure that they are in compliance with their obligations and avoid penal or administrative penalties, it may be appropriate for childcare providers to review the organization of their work. A notice of appeal of this decision was filed on February 14, 2020 by the CPE. We will keep you informed of further developments. Should you wish to obtain further information on this topic, or discuss possible solutions for your own situation, please do not hesitate to contact our team of professionals. Directeur des poursuites criminelles et pénales c. Centre de la petite enfance Soulanges (CPE Soulanges), C.Q. Beauharnois, 760-61-124110-199, January 15, 2020 (hereinafter DPCP c. CPE Soulanges). CQLR, c. S-4.1.1, r. 2. CQLR, c. S-4.1.1. DPCP c. CPE Soulanges, para. 42. Idem, para. 45.
Bill 143: Salient points regarding educational childcare services
On June 16th of this year, Mr. Sébastien Proulx, Minister of Education, Recreation and Sports and Minister of Families, presented Bill 143 1 to improve the educational quality and foster the harmonious development of educational childcare services (the “Bill”). The Bill proposes amendments to the Educational Childcare Act2 (the “Act”) and the Educational Childcare Regulation.3 The main thrust of the Bill’s intervention is aimed at ensuring the health and safety of children, providing parents with childcare services of comparable diversity and quality throughout Québec and fostering the harmonious development of childcare services. Health and safety of children First, the Bill reinforces the obligations of all childcare providers by specifically incorporating a new section into the Act which makes such providers responsible for ensuring the health, safety and well-being of children.4 A non-exhaustive list of prohibited behaviour is also included. As a result, childcare providers cannot, among other things, apply degrading or abusive measures, use exaggerated punishment, denigration or threats, or employ abusive or disparaging language that could humiliate or frighten a child or undermine the child’s dignity or self-esteem.5 In the event of a violation of this provision, daycare or childcare centre permit holders and home childcare providers risk the suspension, revocation or non-renewal of their permits or their recognitions.6 They will, by the same token, be liable to a fine ranging from $5,000 to $75,000.7 Moreover, the Bill reduces the number of children that a natural person without a permit or recognition can have in his or her care. Therefore, a person will not be permitted to offer or provide childcare services in return for parental contribution if that person does not hold a childcare or daycare centre permit or has not been recognized as a home childcare provider, unless the person in question: Is a natural person; Is self-employed; Provides childcare in a private residence where such childcare is not already being provided; and Welcomes up to four children, of whom not more than two are under the age of 18 months, including the person’s own children under nine years of age and any other children under nine who ordinarily live with the person and are present while the childcare is provided.8 A person who violates this requirement is guilty of a penal offence and is liable to a fine of $1,000 to $10,000.9 Quality and diversity of childcare services Subsequent to the coming into force of the Bill, childcare providers will be subject to the obligation to promote the educational success of children, in particular to facilitate their transition into the school system. This aspect must be added to the educational program applied by childcare providers.10 Additionally, and once again with the goal of improving the quality of childcare services, childcare providers shall be required to participate, at the Minister’s request, in a process to assess and improve the educational quality of the childcare provided by them, which process may include the provision of documents or information as well as the completion of quality assessment questionnaires.11 Failure to comply with this process may result in an administrative penalty of $500 for each day of lack of compliance.12 Childcare services development In order to foster the harmonious development of childcare services, the Bill imposes several other obligations on childcare providers and home childcare coordinating offices. The Bill requires all childcare providers to register with the singlecontact access to childcare services designated by the Minister. As a result, childcare providers will be required to use only the waiting list generated by the single-contact access to childcare services to fill any vacant childcare service spots.13 Childcare providers who do not register within the prescribed time limits,14 will expose themselves to an administrative penalty of $500 for each day of lack of compliance15 and to a fine ranging between $500 to $5,000.16 Furthermore, daycare centre permit holders who wish to increase the maximum number of children indicated on their permit shall be required to obtain the Minister’s prior written authorization.17 The same will be true for daycare or childcare centre permit holders who wish to permanently relocate their facilities to offer childcare services in another area.18 Non-compliance with these requirements may result in an administrative penalty of $250 for each day of non-compliance.19 The Bill also adds the obligation for childcare providers and home childcare coordinating offices to send additional information to the Minister.20 In the event of non-compliance, these entities may be subject to an administrative penalty of $500 for each day of noncompliance21 and will be liable to a fine ranging between $500 to $5,000.22 In order to promote the harmonious development of educational childcare services, the Bill also sets forth the factors to be considered by the Minister when evaluating the needs and priorities in this regard,23 and establishes a new advisory committee. The committee will henceforth be composed of seven members. In addition to current members there will also be one member designated by the body most representative of the daycare centres of the territory in question and which do not provide subsidized childcare and one member designated by the body most representative of the home childcare coordinating offices of the territory in question.24 Members shall be designated for a renewable three-year term and no member may be prosecuted for acts performed in good faith in the course of his or her committee functions.25 Finally, the requirements for the issuance of non-subsidized daycare centre permits shall be reinforced by new conditions26 and all permit applicants will henceforth be required to provide additional information with their written applications to the Minister.27 As of the date of publication of this newsletter, the Bill was still under review. It is not until the Bill is passed that we can be certain of its content. However, the date on which the Bill will come into force remains unknown. We will keep you informed of further developments. Bill 143, An Act to improve the educational quality and foster the harmonious development of educational childcare services, 1st Session, 41st Legislature, Quebec, 2017. Educational Childcare Act, CQLR, c. S-4.1.1. Educational Childcare Regulation, RLRQ, c. S-4.1.1, r.2. Bill 143, op. cit. s. 3. Id. Bill 143, op. cit. s. 10 and Bill 143, op. cit. s. 23. Ibid, s. 19. Ibid, s. 4 and 5. Educational Childcare Act, op. cit. s. 108.1. Ibid, s. 1 and 2. Ibid, s. 3. Ibid, s. 16 and Educational Childcare Act, op. cit.. s. 101.3 and 101.5. Bill 143, op. cit. s. 11. The deadline has yet to be specified, but depending on the circumstances, it can be no later than May 31, 2018 or April 1, 2019. See Bill, s. 27 and 28. Bill 143, op. cit. s. 16 and Educational Childcare Act, op. cit. s. 101.3 and 101.5. Bill 143, op. cit. s. 20 and Educational Childcare Act, op. cit. s. 116. Bill 143, op. cit. s. 8. Id. Bill 143, op. cit. s. 22 and Educational Childcare Act, op. cit. s. 16.1 and 123.1. Bill 143, op. cit. s. 17. Bill 143, op. cit. s. 16 and Educational Childcare Act, op. cit. s. 101.3 and 101.5. Bill 143, op. cit. s. 19. Bill 143, op. cit. s. 7. Ibid, s. 18. Id. Ibid, s. 6. Ibid, s. 21.
First-aid course required by the ministère de la Famille: is the employer required to pay for the training time?
The Educational Childcare Regulation1 (the “Regulation”) requires every permit holder to ensure that each member of its childcare staff holds a certificate not older than 3 years which must have been obtained through the successful completion of an early childhood first-aid course of a minimum of 8 hours. Following the amendment of the Regulation of April 1, 20162, an additional component concerning the management of severe allergic reactions was added to this training obligation: 20. A permit holder must ensure that each childcare staff member holds a certificate not older than 3 years attesting that the member has successfully completed a minimum 8-hour early childhood first-aid course including a component on the management of severe allergic reactions or a minimum 6-hour refresher course updating the knowledge acquired as part of the early childhood first-aid course. This obligation on permit holders is accompanied by an administrative penalty in the event of its contravention.3 Recently, in the case of Syndicat québécois des employés et employées de service, section locale 298 et CPE Les Petits Semeurs,4, the arbitrator, André Sylvestre, upheld the decision of a childcare center not to compensate staff for the training time they are required to complete under this section of the Regulation. In doing so, he also considered the scope of the obligation on childcare centers under section 57(4) of the Act respecting labour standards5 (“ALS”), which reads as follows: 57. An employee is deemed to be at work (…) (4) during any trial period or training required by the employer. Facts It was the employer’s habit to send to educators in its employ, two months before the expiry of their first-aid card, a note reminding them of the requirement in section 20 of the Regulation to attend a six-hour refresher course. In addition, the terms of the collective agreement required each member of the childcare staff to have a first-aid training certificate. Attached to the note was a list of the schools in the region that provided the training. The employer gave some educators notice that if they failed to renew their first-aid card, they would be suspended without pay until it was renewed. Collective agreement and the parties’ positions Section 27.04 of the collective agreement stated that the employer would reimburse the registration fees for the first-aid course, but not the salary for the time spent taking the course. Section 27.05 stated that [translation] when taking employer-authorized training during the day, employees are deemed to be at work, and therefore paid. In its grievance, the union contested the employer’s decision not to recognize employees as “deemed to be at work” when they were taking their first-aid course, arguing that the training was considered essential for the performance of their duties and necessary by the very nature of their employment. In this regard, it relied on section 57(4) of the ALS as well as section 27.05 of the collective agreement. The employer disagreed, claiming that section 27.05 of the collective agreement did not support the employees’ argument and that section 57(4) of the ALS did not apply. In support of his claim, the employer maintained that since the training was not required by the employer itself, but rather imposed by the ministère de la Famille, neither section supported the employees’ position. Arbitrator’s decision At the outset, the arbitrator found that the first-aid courses did not meet the criteria set out in section 27.05 of the collective agreement. He was of the view that these courses were not one-time, but periodic events since they had to be renewed every three years. He further found that the employer had not authorized these courses and that it was not necessary for it to do so as they constituted a legal obligation. The employer had only reminded the employees to renew their training before the deadline was reached. Furthermore, clause 27.04 of the collective agreement only imposed the payment of the registration fees for the first-aid course. Had the parties intended to provide for the payment of salary for the time spent taking this course, they would have done so. Then, regarding the application of section 57(4) of the ALS, the arbitrator agreed with the employer’s submission that [translation] the imposition of a professional requirement by a legislative text does not constitute training required by the employer within the meaning of this section. Thus, the arbitrator held that the claim in the grievance could not succeed because the requirement found in section 20 of the Regulation originated from the ministère de la Famille and not the employer. Indeed, the employer only sent reminder letters to its staff members. Conclusion Based on this decision, and subject to more favourable provisions in the employment contract or collective agreement, employers may be entitled to refuse to acknowledge that educators in their employ are “deemed to be at work” when they are taking a first-aid course required by the ministère de la Famille. However, this conclusion could be different if the facts show that the training is in fact a requirement of the employer, particularly if the employee is left with no choice in the matter. For instance, in the decision in Syndicat des travailleuses en CPE - région Laurentides (CSN) et CPE Le petit équipage,6 the relevant clause in the collective agreement was different, and the arbitrator, André G. Lavoie, found that the training was effectively a requirement of the employer, since it was the employer itself that registered its employees in a first-aid course and imposed a time and date for taking it. In any event, one should conduct a detailed review of the circumstances and obligations set out in the collective agreement or employment contract to determine whether or not the employer does indeed not have to compensate employees for the time spent completing training required by the ministère de la Famille. CQLR, c. S-4.1.1, r. 2. For more information on the legislative amendments made to the Regulation, please consult the newsletter “Le Droit de savoir, Modification éventuelle au règlement sur les services de garde éducatifs à l’enfance” (in French only) November 2015, by Myriam Lavallée. Supra, note 1, ss. 123.1 and 124. D.T.E. 2016T-333 (T.A.). CQLR, c. N-1.1. D.T.E. 2015T-32 (T.A.).
The importance of good communication
with one’s insurer: a childcare center is sued
PROVIDERS OF EDUCATIONAL CHILDCARE SERVICES, SUCH AS CHILDCARE CENTRES AND DAYCARE CENTRES, MUST HOLD VARIOUS TYPES OF INSURANCE COVERAGE, INCLUDING PROPERTY AND LIABILITY INSURANCE. ALTHOUGH SOME MAY THINK THAT THE SIMPLE FACT OF TAKING OUT SUCH INSURANCE COVERAGE IS ENOUGH TO PROTECT THEM, YOU MUST BE AWARE THAT OTHER STEPS ARE NECESSARY TO BENEFIT FROM FULL COVERAGE. OBLIGATION TO NOTIFY A LOSS TO YOUR INSURER The law, as your insurance contract, requires you to notify your insurer of any loss or event which may trigger the application of your insurance policy: “The insured shall notify the insurer of any loss which may give rise to an indemnity, as soon as he becomes aware of it. Any interested person may give such notice.”1 Such notification must be done quickly, that is, as soon as you become aware of the loss. Any failure to do so may bring you many headaches since the insurer may refuse to indemnify or defend you in whole or in part if it has not been notified quickly enough and thereby suffers injury: “An insurer who has not been so notified, and thereby suffers injury, may set up against the insured any clause of the policy providing for forfeiture of the right to indemnity in such a case.”2 A premium increase or even a refusal to renew your insurance policy upon its expiry may follow. It is therefore important to remain vigilant and notify your insurer of anything which may possibly involve your insurance coverage. KEEPING ONE’S INSURER INFORMED OF SETTLEMENT NEGOTIATIONS The law, as your insurance contract, provides that the insurer who pays you an indemnity to compensate an economic loss benefits from an automatic legal subrogation which will allow it to sue the person responsible for the loss to recover the amount it paid to you: “The insurer is subrogated to the rights of the insured against the person responsible for the loss, up to the amount of indemnity paid. The insurer may be fully or partly released from his obligation towards the insured where, owing to any act of the insured, he cannot be so subrogated.”3 In legalese, this remedy is called “a subrogatory remedy”, which results in the indemnified insured losing any and all rights he may have against the third party responsible for the loss in respect of the amount the insured received from the insurer. It is therefore essential that you notify your insurer of any negotiation process you initiate with the opposing party, if the insurer has not yet adopted a position on coverage or paid an indemnity. Indeed, a settlement entered into with the opposing party without the consent of the insurer may have a fatal impact on the insurer’s subrogatory remedy, as was recently the case in the matter of Société d’assurances générales Northbridge v. Maruca4 (hereinafter respectively referred to as “Northbridge” and “Maruca”). In this case, defendant Maruca had worked as an administrative assistant for a childcare centre (a “CC”). She was also responsible for payroll preparation and management. Now, Maruca was using the CC credit card for purchasing items for personal use. In this way, she had embezzled several thousand dollars and had paid to herself unauthorized excess wages. The CC had notified its insurer of these events and the insurer, after analysing the file, paid to the CC an amount of $19,108 pursuant to employee dishonesty coverage. However, concurrently to this claim, and unbeknownst to the insurer, the CC instituted legal proceedings against Maruca on March 29, 2012 to claim compensation from her for the faults she had committed. These proceedings were settled in December 2013 through an agreement entitled “Receipt, release, waiver, discharge and transaction”, the relevant excerpt of which reads as follows: “In consideration of all the foregoing, and under reserve of all the terms and conditions of the present Transaction, the parties hereby renounce immediately and definitely to all claims, rights, recourses, rights of action, sums and payments that they had, have or may have now or in the future, from or against her other, and hereby give one another a mutual, reciprocal, full, final, complete, definitive, unconditional and immediate release, discharge and exoneration of and from any and all past, present and future claims, that they had, have or may have, now or in the future, directly or indirectly relating to or arising from the litigation under Quebec Court number 500-22-191245-128.” After paying the indemnity, the insurer Northbridge, unaware of the existence of this lawsuit, introduced its own lawsuit against Maruca in August 2014, claiming, as is customary, the indemnity paid, and impleaded the CC in order for it to recover its $500 deductible. Now, since the December 2013 transaction included a final release respecting any claim “directly or indirectly relating to or arising from the litigation under Quebec court number 500-22-191245-128”, the judge ruled that Northbridge, as subrogated party, could not have more rights than its insured. In the case under review, in each of the lawsuits, namely, the first lawsuit of the CC, in 2012 and that of Northbridge in 2014, amounts were claimed to compensate the harm resulting from the same faults, that is, the illegal use of the credit card of the CC and the unauthorized payment of additional wages. The allegations as to the dates on which the faults were committed and discovered were also the same in each of the two files. The judge therefore ruled that the amounts claimed in Northbridge’s file were identical or less that those claimed in the lawsuit of the CC, which had concluded in 2013. Accordingly, Northbridge’s lawsuit was dismissed. As shown by the above judgment of the Court of Québec, the failure to notify the filing of proceedings concerning the same events as those on which the claim for indemnity to the insurer and the fact that the case was settled without having informed the insurer resulted in the insurer losing its rights under legal subrogation and being unable to obtain compensation for the indemnity it paid pursuant to the insurance contract. This time, the consequences were even more serious for the CC that the simple risk of premium increase or non-renewal of the insurance policy; indeed, Northbridge, having lost its rights due to the fault of the CC, instituted proceedings against the CC, claiming the repayment of the indemnity paid as well as the costs related to the proceedings.5 CONCLUSIONIt is therefore essential to notify your insurer of the existence of any element which may give rise to a claim under your insurance coverage and of any step toward a settlement related to such event. In so doing, you will preserve your good relations with the insurer and limit your risk of legal and financial complications. Better safe than sorry! 1 Art. 2470 par. 1 of the Civil Code of Québec, RLRQ c. C 1991 (hereinafter referred to as the “CCQ”). 2 Art. 2470 par. 2 CCQ. 3 Art. 2474 par. 1 CCQ. 4 Société d’assurance générale Northbridge v. Maruca, 2014 QCCQ 10083 (C.Q.). 5 Société d’assurance générale Northbridge v. Centre de la petite enfance St-Andrew’s, no. 500-22-219992-156 (C.Q.).
Children are precious, and their health, safety and well-being are at the very heart of childcare providers’ responsibilities. Several actors work with or alongside children on a daily or occasional basis in order to provide them care and education. In selecting people who work with children, providers collect and use a great deal of information about them, including their studies, experience, qualifications and abilities. Detailed criminal record checks are generally performed as well. THE LEGAL OBLIGATIONS To ensure that people who work with young children or are regularly in contact with them do not have a problematic past (including a criminal record) connected with their duties, the legislator has laid out the obligations and powers of childcare providers. For example, the Educational Childcare Act1, (the Act) and the Educational Childcare Regulation2 (the Regulation) contain provisions specifically dealing with verifications of impediments. As a result, the educational childcare system has the benefit of provisions which enable it to request relevant information lawfully, even if it constitutes personal information. Parameters governing these verifications have also been enacted. The Regulation begins by providing that an applicant for a childcare or day care centre permit, or a person applying for recognition as a home childcare provider, must submit an application, and include a consent to a verification of the information necessary to establish whether an impediment exists. The applicant must also provide an attestation establishing that no impediment exists, or an attestation of information that may establish an impediment, as the case may be, for himself and each director or shareholder of the business.3 The concept of “impediment” is defined as “grounds for permit refusal set out in paragraphs 2 and 3 of section 26 and in the second paragraph of section 27 of the Act”.4 Those provisions are worded as follows: 26. The Minister may refuse to issue a permit if: […] (2) the applicant or a director or a shareholder of the applicant exhibits or has exhibited behaviour that could reasonably pose a threat for the physical or emotional safety of the children to whom the applicant proposes to provide childcare; (3) the applicant or a director or a shareholder of the applicant is charged with or has been convicted of an indictable or criminal offence related to the abilities and conduct required to operate a childcare centre or a day care centre; […] 27. Police forces in Québec are required to communicate any information required by regulation that is needed to verify the existence of an impediment under paragraph 2 or 3 of section 26. The investigation to that end must be concerned with any sexual misconduct, failure to provide necessities of life, criminal operation of a motor vehicle, violent behaviour, criminal negligence, fraud, theft, arson and drug or narcotic-related offence. […] In addition to the above, and subject to certain limitations, an applicant or permit holder must also ensure that “no person of full age working in the applicant’s or holder’s facility during the hours when childcare services are provided [...] has an impediment related to the abilities and conduct required to hold a position in a childcare centre or a day care centre [...]”5 The same rule, with the necessary modifications, applies to the home childcare coordinating office staff members “assigned to manage the office, to recognize or to monitor or provide technical and pedagogical support to the home childcare providers the office has recognized.”6 As for home childcare providers, they must meet requirements regarding the persons who assist them, and regarding any person of full age who lives in the residence where the care is provided.7 If the applicant or permit holder fails to show that no impediment exists, the Minister may refuse to issue a permit, or may suspend it, revoke it or refuse to renew it.8 The coordinating office may do the same in relation to the recognition of a home childcare provider.9 Accordingly, to determine whether an impediment exists, personal information must be collected, used and disclosed by various persons. Quite apart from the obligations set out in the Act and the Regulation, those persons must ensure that they comply with all the rules contained in legislation governing the protection of personal information, which we will not be addressing in this newsletter. ASSESSING THE IMPEDIMENTS Not all socially unacceptable behaviour reasonably poses a threat to the physical or emotional safety of children receiving childcare. Similarly, indictable and other criminal offences are not necessarily connected to the abilities and conduct required to run a childcare or day care centre. And it is only in such cases that the behaviour or past history can be a basis for refusing to issue a permit or recognition or for suspending, revoking or refusing to renew it. Unfortunately, the jurisprudence on this issue in the context of educational childcare is rather limited. However, we believe that decisions which deal more generally with criminal records in the employment context can serve as guidance. For example, in order to determine whether there is a connection between a person’s criminal record and the position, the courts agree that a concrete and detailed analysis of the situation must be carried out, and that one must avoid limiting the analysis to the general nature of the offence. From this perspective, and based on the circumstances, the following elements should be among those considered: the nature of the duties, having regard to the context in which the business operates and the services it provides; the characteristics specific to the clientele; the impact that the offence could have on the clientele, the reputation of the business or establishment, and the quality of the services provided; and the risk of reoffending.10 In our opinion, drawing from the general principles applicable to employment, the above factors should also be considered in determining whether an indictable offence or criminal offence is related to the abilities and conduct required to operate a childcare or day care centre. With the necessary adjustments, these principles can also serve as guidance in assessing behaviour to determine whether one could reasonably pose a threat for the physical or emotional safety of the children. Other criteria, such as the nature of the offence, the date of its commission and the sentence imposed, if any, should be taken into account as well.11 The people responsible for considering the issue of impediments must always avoid automatic decisions, and must examine the characteristics and implications of each case in an informed manner, weighing the information collected in relation to the person’s role in delivering the care. In doing so, they can refer to La vérification de l’absence d’empêchement dans les services de garde éducatifs,12 a 2004 publication of the Ministère de l’Emploi, de la Solidarité sociale et de la Famille. Although the document was written before the Act came into force, and although it cannot replace the applicable legislation and is not a formal reference source, it can help inform decision-makers’ thinking. In a recent decision13 about the dismissal of a childcare centre employee whose “attestation of information that may establish an impediment” mentioned the existence of [translation] “behaviour that might pose a risk” to children’s safety, the arbitral tribunal recalled certain principles and obligations applicable to the assessment of impediments: [TRANSLATION]  […] [The board of directors] has a duty to treat the person fairly, and must therefore demand the matter be the subject of an internal investigation whose findings are submitted to her in writing. In that investigation, the person must be given the opportunity to provide her version of the events. The childcare centre’s management can make a recommendation to the board, but the board is not required to follow it. It might decide to consult a lawyer to ensure it understands the legal aspect of the matter. It might decide to hear the person before making a decision. […]  The childcare centre’s board of directors should not have contented itself with a simple oral statement from the centre’s director, and then wrongly determined that it had no choice but to dismiss [the worker] in order to comply with a directive of the Ministère de la Famille, the nature of which was not specified […].  If it had acquainted itself with chapters 6 and 8 of the document entitled La vérification de l’absence d’empêchement dans les services de garde éducatifs, the board would undoubtedly had found criteria that it should have taken into account, such as aggravating factors, or, on the contrary, mitigating factors. In determining whether the conduct complained of constituted a genuine risk to the children’s safety, the board should have verified whether the incident was isolated or whether there was a re-offence, and should have taken the time that had elapsed since the incident into account, considered the quality of the employee’s work since she began with the centre, ascertained how cooperative she was with the investigation, etc. Lastly, it could have used the analytical table in the document, drawn on the table as inspiration for its own set of criteria to be used in weighing the pros and cons in order to make a fair, informed and reasoned decision.  A childcare centre’s board of directors is made up of volunteers. It depends on the centre’s administration for its information. If it is not adequately informed, it is difficult for it to fulfill its role fully. The remarks in the preceding paragraph therefore apply to the centre’s management as well […]. […]  In order to be fair, the procedure that the board must follow in such circumstances would best be inspired by the [TRANSLATION] “fairness principles” set out in the Ministère’s 2004 document: transparency; the right to make representations; impartiality and objectivity; confidentiality; diligence and caution; and the duty to manage responsibly and obtain adequate information.  The board has a duty to assess all aspects of the situation and determine, based on a fair procedure, whether the behaviour [the worker] is alleged to have committed constitutes a genuine risk to the safety of the children who frequent the childcare centre. It must therefore do its homework. [Footnotes omitted.] In light of these remarks from a case in which a person’s behaviour was assessed, but also in light of the principles discussed further above, it bears repeating that those who are responsible for ensuring that individuals who work alongside children in day care centres and childcare centres do not have an impediment must carry out that responsibility by taking the necessary time and consulting the resources necessary to make an informed decision, not one based on unjustified prejudice or social stigma stemming from past conduct or a past conviction. Unless each case is evaluated seriously, decision-makers might find their decisions challenged. They might also be the subject of legal proceedings, which could, among other things, reverse their decision, reinstate the employee, or award financial compensation. In our view, if the investigation is handled particularly badly, the decision-makers might, subject to certain legal protections, be found personally liable. _________________________________________ 1 CQLR, c. S-4.1.1. 2 CQLR, c. S-4.1.1, r. 2. 3 Subsections 10(7) and 60(13) of the Regulation. 4 Section 1 of the Regulation, “impediment”. 5 Section 4, para. 1 of the Regulation. 6 Section 4, para. 2 of the Regulation. 7 Subsection 60(13) of the Regulation. In addition, s. 6 of the Regulation lists the cases in which a permit holder or home childcare provider must ensure that a new consent to investigation and a new attestation are provided. 8 Sections 26 and 28 of the Act. 9 Subsections 60(13) and 75(4) of the Regulation. 10 In this regard, see, among other things, Syndicat québécois des employées et employés de service, section locale 298 et Oasis St-Damien inc., 2012 CanLII 99864 (QC SAT) at paras. 104 to 108. 11 See for example M.F. c. Centre de la petite enfance A, 2012 QCTAQ 09495. 12 Ministère de l’Emploi, de la Solidarité sociale et de la Famille, La vérification de l’absence d’empêchement dans les services de garde éducatifs by Éric Dufresne (Québec: Ministère de l’Emploi, de la Solidarité sociale et de la Famille, 2004). 13 Syndicat des travailleuses et travailleurs de la petite enfance de la Montérégie c. Centre de la petite enfance Vos tout-petits, 2014 CanLII 47169 (QC SAT).