Publications

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

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  • The duration of copyright protection in Canada is extended to 70 years as of December 30, 2022

    On June 23, 2022, Bill C-19 received Royal Assent. The bill was introduced by the Honourable Chrystia Freeland, Deputy Prime Minister and Minister of Finance, and resulted in amendments to the Copyright Act1 that will come into force on December 30, 2022, further to an order in council issued earlier this week. Bill C-19, or An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022, and other measures, was tabled on April 28, 2022, by the federal government following the release of the 2022 budget. This bill essentially follows up on the commitments the government made in its annual budget. In the 2022 budget, the federal government said it wanted to make changes to the Copyright Act. It announced a legislative amendment to meet its obligation under the Canada-United-States-Mexico Agreement (CUSMA) to extend the general term of copyright protection from 50 years to 70 years after the death of the author. Like the United States and Mexico, Canada has committed to a copyright protection term that is not less than the life of the author, plus 70 years following the natural person’s death.   Section 6 of the Copyright Act currently stipulates that copyright protection lasts for the author’s lifetime and an additional 50 years after their death. The section will now read as follows: Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year. [emphasis added]. The term of copyright is also extended to 70 years after the death of the author or the last surviving co-author in the case of posthumous works and collaborations. Finally, Bill C-19 clarifies that legislative amendments to the Copyright Act do not reactivate copyrights that expired before the effective date of the amendments. [1] RSC 1985, c C-42.

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  • Cybersecurity and the dangers of the Internet of Things

    While the Canadian government has said it intends to pass legislation dealing with cybersecurity (see Bill C-26 to enact the Critical Cyber Systems Protection Act), many companies have already taken significant steps to protect their IT infrastructure. However, the Internet of Things is too often overlooked in this process. This is in spite of the fact that many devices are directly connected to the most important IT infrastructure for businesses. Industrial robots, devices that control production equipment in factories, and devices that help drivers make deliveries are just a few examples of vulnerable equipment. Operating systems and a range of applications are installed on these devices, and the basic operations of many businesses and the security of personal information depend on the security of the devices and their software. For example: An attack could target the manufacturing equipment control systems on the factory floor and result in an interruption of the company’s production and significant recovery costs and production delays. By targeting production equipment and industrial robots, an attacker could steal the blueprints and manufacturing parameters for various processes, which could jeopardize a company’s trade secrets. Barcode scanners used for package delivery could be infected and transmit information to hackers, including personal information. The non-profit Open Web Application Security Project (OWASP) has released a list of the top ten security risks for the Internet of Things.1 Leaders of companies that use this kind of equipment must be aware of these issues and take measures to manage these risks. We would like to comment on some of the risks which require appropriate policies and good company governance to mitigate them. Weak or unchangeable passwords: Some devices are sold with common or weak initial passwords. It is important to ensure that passwords are changed as soon as devices are set up and to keep tight control over them. Only designated IT personnel should know the passwords for configuring these devices. You should also avoid acquiring equipment that does not allow for password management (for example, a device with an unchangeable password). Lack of updates: The Internet of Things often relies on computers with operating systems that are not updated during their lifetime. As a result, some devices are vulnerable because they use operating systems and software with known vulnerabilities. Good governance includes ensuring that such devices are updated and acquiring only devices that make it easy to perform regular updates. Poor management of the fleet of connected devices: Some companies do not have a clear picture of the Internet of Things deployed in their company. It is crucial to have an inventory of these devices with their role in the company, the type of information they contain and the parameters that are essential to their security. Lack of physical security: Wherever possible, access to these devices should be protected. Too often, devices are left unattended in places where they are accessible to the public. Clear guidelines should be provided to employees to ensure safe practices, especially for equipment that is used on the road. A company’s board of directors plays a key role in cybersecurity. In fact, the failure of directors to monitor risks and to ensure that an adequate system of controls is in place can expose them to liability. Here are some elements of good governance that companies should consider practising: Review the composition of the board of directors and the skills matrix to ensure that the team has the required skills. Provide training to all board members to develop their cyber vigilance and equip them to fulfill their duties as directors. Assess cybersecurity risks, including those associated with connected devices, and establish ways to mitigate those risks. The Act to modernize legislative provisions respecting the protection of personal information sets out a number of obligations for the board of directors, including appointing a person in charge of the protection of personal information, having a management plan and maintaining a register of confidentiality incidents. For more information, you can read the following bulletin: Amendments to Privacy Laws: What Businesses Need to Know (lavery.ca) Lastly, a company must at all times ensure that the supplier credentials, passwords and authorizations that make it possible for IT staff to respond are not in the hands of a single person or supplier. This would put the company in a vulnerable position if the relationship with that person or supplier were to deteriorate. See OWASP top 10

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  • Canadian Patents: Federal Court confirms that the PM(NOC) Regulations provide a patent enforcement mechanism only in relation to products that are in fact available to Canadians

    In a recent Federal Court decision, Justice Fothergill dismissed AbbVie’s applications for judicial review of the following decisions of the Minister of Health (the “Minister”): that JAMP was not a “second person” for the purposes of s 5(1) of the PM(NOC) Regulations; and to issue NOCs to JAMP for its SIMLANDI Presentations. Background AbbVie's drug HUMIRA first received approval in Canada in 2004 as a 50 mg/mL concentration of adalimumab. HUMIRA is widely used to treat numerous medical conditions including rheumatoid arthritis, adult and pediatric Crohn’s disease, and psoriasis. In 2016, high-concentration (100 mg/mL) HUMIRA was approved in Canada in a 40 mg/0.4 mL pre-filled syringe (DIN 02458349), and as a 40 mg/0.4 mL pre-filled auto-injector pen (DIN 02458357). In fact, AbbVie has marketing authorization in Canada for a variety of concentrations, but is actively selling only: the original (lower) 50 mg/mL concentration in 40 mg/0.8 mL strengths in both auto-injector pen and pre-filled syringe presentations, and the newer (higher) 100 mg/mL concentration in a 20 mg/0.2 mL pre-filled syringe. In December 2020 or January 2021, JAMP sought regulatory approval in Canada for its SIMLANDI drug, a “biosimilar” of AbbVie’s HUMIRA, in some of the strengths not actively sold by AbbVie (i.e., a 40 mg/0.4 mL pre-filled syringe, a 40 mg/0.4 mL auto-injector pen, and an 80 mg/0.8 mL pre-filled syringe). In its NDS, JAMP relied on three HUMIRA drug products having the same exact dosage forms, strengths, and routes of administration as the drugs to be marketed as SIMLANDI. None of these formulations of HUMIRA was marketed in Canada by AbbVie at the time JAMP submitted its NDS. Hereinafter, these drugs (DINs 02458349, 02458357, and 02466872) are referred to as the “referenced HUMIRA products”. In its correspondence with Health Canada’s Office of Submissions and Intellectual Property (“OSIP”), and after being told that their NDS was incomplete, JAMP submitted Form Vs on a “without prejudice” basis, yet took the position that it was not required to comply with s 5(1) of the PM(NOC) Regulations, as they were not a “second person” as defined therein because the referenced HUMIRA products had not been marketed in Canada for several years and therefore they were not drugs “marketed in Canada” as required by s 5(1). 5 (1) If a second person files a submission for a notice of compliance in respect of a drug and the submission directly or indirectly compares the drug with, or makes reference to, another drug marketed in Canada under a notice of compliance issued to a first person and in respect of which a patent list has been submitted, the second person shall include in the submission the required statements or allegations set out in subsection (2.1). [Emphasis ours] Health Canada’s Office of Patented Medicines and Liaison (“OPML”) later advised AbbVie of its preliminary view that the referenced HUMIRA products were indeed not currently being marketed in Canada. Therefore, the referenced HUMIRA products did not trigger s 5(1) of the PM(NOC) Regulations. However, AbbVie argued that JAMP nevertheless made reference to a drug product they marketed in Canada, thus falling within s 5(1) of the PM(NOC) Regulations. Namely, AbbVie argued that JAMP SIMLANDI indirectly made reference to their HUMIRA 20 mg/0.2 mL pre-filled syringe because both products had the same drug concentration (i.e., 100 mg/mL). Hence, the issue was to determine whether a second person seeking approval for a drug with a specific dosage strength could be considered to indirectly refer to a “drug marketed in Canada” with another dosage strength but having the same concentration. The Minister’s Decision After reviewing submissions from both parties, the OPML issued its final decision on December 23, 2021, in which it confirmed its preliminary determination that JAMP was not a second person for the purposes of s 5(1) of the PM(NOC) Regulations, and the corresponding obligations did not arise unless the second person’s NDS “directly or indirectly compares the drug with, or reference” to “another drug marketed in Canada”. The OPML found that “another drug marketed in Canada” must be interpreted to be specific with respect to strength, dosage form, and route of administration (i.e., it is DIN-specific).” The Minister found that the “indirect” comparison of s 5(1) did not expand the scope of the drugs for which a second person must address the patents listed on the Patent Register beyond the DIN-specific “another drug”. Hence, the HUMIRA 20 mg/0.2 mL pre-filled syringe marketed by AbbVie was not a proper reference product for JAMP’s 40 mg/0.4 mL pre-filled syringe, 40 mg/0.4 mL auto-injector pen, and 80 mg/0.8 mL pre-filled syringe. Accordingly, on January 5, 2022, the Minister issued NOCs to JAMP and JAMP launched its products on April 13, 2022. Subsequently, AbbVie sought judicial review of these two related decisions of the Minister, the result of which is the presently-discussed Federal Court decision. Ultimately, the Federal Court agreed with the Minister. Specifically, the Federal Court concluded that inter alia the following findings by the Minister were reasonable: that the term “another drug” in s 5(1) of the PM(NOC) Regulations is confined to the drug products identified by Health Canada, and that these products must have an identical dosage form, strength, and route of administration to the drug product of the second person. that s 5(1) of the PM(NOC) Regulations applies only where a second person files a submission for an NOC that (1) directly or indirectly compares its drug, or makes reference to “another drug”, (2) that other drug is marketed in Canada under an NOC issued to a first person, and (3) that other drug is a drug in respect of which the first person has submitted a patent list; that a drug that is not marketed is not eligible for the protections under the PM(NOC) Regulations; and that JAMP was not a second person under s 5(1) for the simple reason that AbbVie was not marketing in Canada the HUMIRA drugs that JAMP relied on for its NDS. Conclusion The Minister's decisions, as well as the Federal Court's finding that they were reasonable (pending any appeal), emphasizes one of the statutory objectives of the PM(NOC) Regulations, namely to provide a patent enforcement mechanism only in relation to products that are in fact available to Canadians. This also clarifies certain practical effects of this statutory objective, namely that the enforcement mechanism of the PM(NOC) Regulations is only available to an innovator that markets its innovative drug in Canada, and that s 5(1) of the PM(NOC) Regulations applies only to reference drug products that are identical down to a DIN-specific level with the drug to be approved. However, this does not mean that innovators are entirely without recourse when it comes to drugs they are not marketing in Canada. Under such circumstances, while innovators may not be able to utilize the PMNOC Regulations to prevent a NOC from being issued to a competitor, it can nonetheless commence normal patent infringement proceedings in Federal Court.   A copy of this decision, AbbVie Corporation v. Canada (Health), 2022 FC 1209, is available here.   Our intellectual property team would be happy to help you with any questions you may have regarding the PM(NOC) Regulations.

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  • Sales without legal warranty at the buyers’ risk: Clarity is key

    On July 15, 2022, Justice François Lebel of the Court of Québec rendered a decision1 confirming that, in the case of the sale of immovable property, a clear and unambiguous exclusion clause, whereby the warranty is waived at the buyer’s risk, results in a break in the chain of title preventing the buyer from taking any legal action under such warranty against the seller and previous sellers. Justice Lebel thus declared the originating application against the defendants Marshall and Bergeron inadmissible and dismissed the call in warranty. This decision is consistent with the recent decision of the Court of Appeal of Quebec in Blais,2 rendered in May 2022, which clarified the state of the law on the consequence of waiving a legal warranty where successive sales are involved. The facts In March 2009, the defendant Bergeron sold an income property (hereinafter the “Property”) to the defendants, the Marshalls, with a legal warranty of quality. In May 2012, the Marshalls in turn sold the Property to the defendants Hamel and Drouin, still with a legal warranty of quality. In December 2016, the defendants Hamel and Drouin resold the Property to the plaintiff, but this time [translation] “without legal warranty of quality, at the buyer’s risk, but with warranty of ownership”. In the fall of 2020, the plaintiff had work done to repair the drain tile system. It was at that point that it discovered the presence of petroleum hydrocarbons in the soil under the Property’s foundation, rendering the soil unsuitable for residential use. According to an expert report, the alleged contamination stemmed from a heating oil tank once located in a shed behind the Property. The tank was apparently removed before the sale in December 2016. The plaintiff was seeking a reduction in the sale price and to have the defendants Hamel and Drouin, as well as the two previous sellers, the defendants Marshall and Bergeron, held solidarily liable. The plaintiff referred to the warranty of quality provided for in articles 1726 and following of the Civil Code of Québec (C.C.Q.) and the warranty against public law restrictions provided for in article 1725 C.C.Q. The plaintiff also claimed to be the victim of fraud on the part of the defendants Hamel and Drouin. After being called in warranty by the defendants Hamel and Drouin, the Marshalls moved to dismiss the substantive claim and the action in warranty. They claimed that the sale of the Property between the defendants Drouin and Hamel and the plaintiff was made at the buyer’s risk and that such a clause in a subsequent deed of sale irrevocably breaks the chain of title, thereby preventing the plaintiff from taking any legal action against the seller and previous sellers. The law and the importance of a clear clause According to article 1442 C.C.Q., which codifies the principles arising from the decision in Kravitz,3 buyers may seek to have the sellers previous to their own seller held liable. However, for such an action to be deemed valid, it must be established that: The defect existed at the time that the previous sellers owned the immovable; and The right to the legal warranty was transferred to the plaintiff through subsequent sales. Indeed, the buyer of an immovable may take legal action directly against a previous seller in accordance with article 1442 C.C.Q. However, this article presupposes that the right to the legal warranty was passed on from one owner to the next, right down to the current buyer seeking to file a claim for latent defects. In other words, the legal warranty must have been transferred to each owner through the chain of title. In Blais, the Court of Appeal confirmed that an unambiguous warranty exclusion clause results in a break in the chain of title. Such a clause prevents the buyer of an immovable from taking legal action directly against the former owners who sold the immovable with a legal warranty. Given the decision in Blais, it is now clear that such a clause waiving the legal warranty closes the door to any direct recourse against a seller’s predecessors, even if such predecessors sold the immovable with a legal warranty.4 In these circumstances, a buyer who acquires an immovable at their own risk will be deprived of their right to take legal action directly against the previous sellers, insofar as the warranty exclusion clause in the deed of sale is clear and unambiguous. In this case, Justice Lebel considered that the wording of the warranty exclusion clause in the deed of sale, which was binding on the plaintiff, was clear and unambiguous, and that a sale at the buyer’s “risk” excludes both the warranty of quality and the warranty of ownership, which covers the public law restrictions of article 1725 C.C.Q. Justice Lebel indicated that there was a break in the chain of title resulting from the sale at the buyer’s risk and that the plaintiff could not claim that it was still entitled to take legal action directly against any sellers other than the defendants Hamel and Drouin. He therefore ruled in favour of the defendants Marshall and Bergeron and declared the originating application against them inadmissible. Key takeaways A warranty exclusion clause in a deed of sale will only be deemed valid if it is clear and unambiguous. The mention that a sale is made “at the buyer’s risk” completely eliminates the warranty of quality provided for in article 1726 C.C.Q. and the warranty of ownership provided for in article 1725 C.C.Q. A deed of sale containing a valid warranty exclusion clause AND a mention that the sale is made “at the buyer’s risk” precludes any recourse by the buyer against the seller, but also against previous sellers. With the current state of the Quebec real estate market, the decision in Hamel, which ties in with the Court of Appeal’s teachings in Blais, certainly clarifies how case law established in recent years should be applied, in particular as concerns the effect of a warranty exclusion clause on successive sales. The members of our Litigation and Dispute Resolution group are available to advise you and answer your questions. 9348-4376 Québec inc. c. Hamel, 2022 QCCQ 5217 Blais c. Laforce, 2022 QCCA 858. General Motors Products of Canada Ltd v. Kravitz, [1979] 1 S.C.R. 790 Supra note 1, paras. 6 and 8.

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  • Authorizations for treatment: the Court of Appeal rules on the legal representation of patients and hospitalization and re-hospitalization clauses

    In a decision rendered on September 1, 20221, the Court of Appeal of Quebec stated that a judge seized of an application for authorization for treatment must ensure that the patient in question can be heard and assert their rights. The Court also took the opportunity to analyze the indefinite hospitalization clauses and the re-hospitalization clauses made necessary following a subsequent deterioration in a patient’s health. Legal representation of patients The Court’s reasoning was based on the following elements: Article 90 C.C.P. allows the judge to appoint a lawyer ex officio to safeguard the rights and interests of an incapable person; A hearing on an application for authorization for treatment should not be held without the person who is the subject of the application being represented by a lawyer; The principle that such a person should be represented by a lawyer may have certain exceptions, but it can only be discarded after steps have been taken to offer the person involved the presence of a lawyer, following a close consideration of the stakes and circumstances of the case and of a decision expressly reasoned by the judge. As such, when an application for authorization for treatment is presented, the following analytical framework must be applied from the start of the hearing: The judge must assess whether the person concerned is incapable. To meet this first requirement, preliminary evidence of “likelihood of incapacity” must be provided2; The appointment of a lawyer must be necessary to safeguard the rights and interests of the person3 When these conditions are met, the judge must suspend the proceedings under article 160 C.C.P. for the period necessary for a lawyer to be appointed to represent the patient. The court may also issue a safeguard order. If the judge is not convinced that the second condition is met, they can withhold their decision and hear the evidence. Once the evidence has been adduced, they can decide to issue a safeguard order if the steps are met or decide on the merits of the application if this second criterion has not been met. In the latter case, they must expressly state the reasons which led them to this conclusion. The Court pointed out that prior to a hearing, a healthcare establishment must make sure that everything is done to ensure that the person concerned has the possibility of being represented by a lawyer. The bench is also of the view that the presence of an available lawyer at treatment hearings would be an ideal practice in order to allow the judge to appoint them ex officio. Hospitalization and re-hospitalization clauses In this case, the patient challenged the finding that they must remain hospitalized from the delivery of the judgment authorizing their treatment until their medical discharge. The court pointed out that in the absence of appropriate evidence, it is not up to the Court to usurp the role of the medical profession by setting a term for an ongoing hospitalization. The court maintained the order’s conclusion that the patient’s hospitalization should continue “until the attending physician deems [the patient’s] condition has sufficiently stabilized to allow them to be discharged safely.” Finally, the patient also challenged the conclusion of the judgment relating to their re-hospitalization in the event of non-collaboration with treatment. The Court of Appeal clarified that a clause of this nature should not be a sanction for non-compliance with the treatment plan. A re-hospitalization clause for non-collaboration depends on the circumstances of each case and must be substantiated by appropriate evidence. However, the court does not rule out that this eventuality may justify the re-hospitalization of a patient if evidence to this effect is presented. The members of Lavery’s Administrative Law team regularly represent healthcare establishments and remain available to advise you and answer your questions in connection with this new development in jurisprudence. A.N. c. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’Île-de-Montréal, 2022 QCCA 1167 Para. 33 et seq. Para. 49 et seq.

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  • Nurturing ambition: Lavery unveils a new brand image

    Today, Lavery unveils its new brand image. This transformation is more than just a visual change; it reflects our desire to drive the growth of organizations that conduct business in Quebec. Imbued with distinctive and current colours, contemporary imagery from a renowned Quebec illustrator and our desire to break industry codes, the new brand has been carefully conceived to fully embody our DNA, which focuses on business partnerships with our clients. Our new signature, both warm and distinctive, and our optimized positioning speak to our uniqueness in the market and the professional services industry.  Our brand image is based on commitment, experience, added value and growth: the four main pillars that guide our actions and give meaning to each of our interventions.   Lavery’s commitment is a pledge of loyalty and excellence. It’s a promise to serve our clients while upholding the profession’s highest standards. It’s a passion to contribute to business success. It’s a responsibility to leverage all our knowledge, experience, diligence and talent to deliver optimal results. It’s a willingness to listen so we can grasp expectations and adapt accordingly. A guarantee that our name is our word. Our visual identity also reflects our vast experience. At Lavery, experience is measured in accomplishments, not years. It brings confidence, without complacency. It lets us stay the course at all times, avoiding pitfalls and needless detours. It enlightens us, without blinding us. It’s the foundation of our endurance and solid reputation. And we share it for the benefit of our clients, all key players in today’s economy. Our team is composed of value creators who put their talents to work for our clients. We understand that our expertise is a means, not an end. A means of powering your business. A means of unearthing and seizing opportunities. A means of expanding horizons. A means of gaining leverage – and gaining ground. A means of achieving tangible, measurable results. A means of delivering more for your benefit – and your bottom line. For Lavery, growth is all about delivering more, to generate added value. Value for our clients, so they can thrive and make a difference. Value for our professionals and employees, as they strive to fulfil their potential. Value for the community, which benefits from the spinoffs we help create. At Lavery, growth is what allows us to think big. These four distinct traits are the foundation of the Lavery promise. It is precisely what we want to convey with our new image: a personalized approach with proven results, supported by a competent and integrated team that is resolutely committed to its clients’ success. That is the Lavery signature. We also invite you to read our press release.

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

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

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  • The Supreme Court examines the notion of abuse of process in the case of inordinate delay in administrative and disciplinary proceedings

    The Supreme Court recently considered, in the Law Society of Saskatchewan v. Abrametz1 decision, the applicable test to determine whether a delay is inordinate and constitutes an abuse of process that could lead to a stay of administrative proceedings. In this case, a Saskatchewan lawyer requested that the disciplinary proceedings against him be terminated due to a delay that he claimed was inordinate and constituted an abuse of process. The Law Society of Saskatchewan’s inquiry had begun six years before his application was filed. After analysis, the Supreme Court concluded that there was no abuse of process. In its study of the question of delay, the Supreme Court recalled that the analytical framework for determining whether a delay constitutes an abuse of process remains that which was developed by the Supreme Court in the Blencoe2 decision rendered twenty years earlier. In this way, the majority rejected the idea of bringing a test akin to the Jordan3 decision regarding inordinate delay into the context of administrative proceedings. Here is the analysis grid for determining whether a delay constitutes an abuse of process: The delay must be inordinate. Contextual factors must be considered, such as the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and issues in the case. Moreover, if the party itself caused or waived the delay, then it cannot amount to an abuse of process. The delay must have caused significant prejudice directly. It could, for example, be psychological harm, a damaged reputation, sustained media attention or loss of business. If these first two conditions are met, the delay in question constitutes an abuse of process when it is manifestly unfair to a party or otherwise brings the administration of justice into disrepute. Thus, once the abuse of process has been established, several remedies are possible depending on the seriousness of the harm suffered. These can range, in particular, from the reduction of the sanction and the ruling against the organization at fault to pay all costs to the stay of the proceedings. The members of Lavery’s Administrative Law team regularly represent various professional orders and remain available to advise you and answer your questions in connection with this new development in jurisprudence. 2022 SCC 29, July 8, 2022. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44. R v. Jordan, 2016 SCC 27.

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  • Kickstarting Examination in View of Upcoming Changes to Canadian Patenting Practice

    As we reported earlier, the Canadian government published proposed amendments to the Patent Rules in July 2021, to further streamline Canadian patent examination to pave the way for a future patent term adjustment (PTA) system in Canada as per the Canada-United States-Mexico Agreement (CUSMA), as well as to bring Canadian practice in line with the new Patent Cooperation Treaty (PCT) ST.26 sequence listing standard. The amended Patent Rules (the “new Rules”) have now been published in their final version and are substantially the same as the 2021 proposal. Since most of the new Rules will come into force on October 3, 2022, Applicants should strongly consider requesting examination by Friday, September 30, 2022, to avoid the new excess claim fee and RCE regimes, as elaborated below. Excess claim fees The new Rules will introduce government excess claim fees of $100 CAD for each claim beyond 20 claims. These fees will be payable when requesting examination and will be re-assessed upon allowance to determine if further claim fees are due when paying the final fees, based on changes in claim number during examination. A multiple-dependent claim or a claim listing alternative elements will count as a single claim for fee calculations, thus using such claim formats will not further increase such fees. Importantly, such fees will be determined based on the maximum number of claims present in the case at any time during examination, therefore the addition of claims beyond 20 during examination will incur fees that cannot later be reduced or avoided by subsequently removing claims before allowance. For example, if an application contained 15 claims when requesting examination, which were amended to 30 claims during examination and later reduced to 18 claims for allowance, excess claim fees of $1000 CAD ((30-20) x $100) would still be payable at allowance, even though the application did not contain more than 20 claims when requesting examination or at allowance. Therefore, under the new system, minimizing or avoiding claim fees shall require not only limiting the number of claims when requesting examination, but also limiting their number throughout examination. Since many applications are originally filed with numerous claims, controlling such fees shall entail amending the claims prior to or when requesting examination. It should be noted that Canadian patent law, unlike that of the United States, does not include a continuation practice. Therefore, voluntary divisional applications are generally not recommended in Canada in view of double patenting under Canadian law, and there are no terminal disclaimers or equivalent remedies to address double patenting objections in Canada. These unique aspects of Canadian patent practice may limit the subject matter that may be pursued in divisional applications and will need to be given careful consideration by Applicants when devising a strategy to reduce the number of claims in view of the new Rules. Request for Continued Examination (RCE) The new Rules will also introduce an RCE system, with the goal of putting an application in condition for allowance with no more than three Examiner’s reports. Continuing examination beyond three reports would require the filing of an RCE, which would entitle the Applicant to up to two additional Examiner’s reports, following which a further RCE would be required to continue examination, and so on. The filing of an RCE may also be used to return an allowed case to examination, allowing the filing of amendments after allowance, thus replacing the current practice of requesting withdrawal of the Notice of Allowance. The RCE fee is on the order of $816 CAD and will be adjusted slightly on an annual basis. Conditional Notice of Allowance (CNOA) The new Rules introduce a Conditional Notice of Allowance that would inform the applicant that the application would be allowable but for minor defects that must be addressed along with payment of the final fee. If the Examiner does not consider the application to be allowable following the applicant's response to the CNOA, allowance will be withdrawn, the final fee will be refunded and examination will resume. New PCT Sequence Listing Standard In view of the new PCT “ST.26” sequence listing standard, Canada has brought its sequence listing requirements in line with those of the PCT as of July 1, 2022. Since applications having a PCT filing date prior to this date may utilize the current ST.25 standard or the new ST.26 standard when entering the Canadian national phase, use of the new standard is not imminent for Canadian national phase filings, however new direct (non-PCT) filings in Canada will need to utilize the new standard as of July 1, 2022. Act now! Since the new claim fee and RCE regimes will only apply to applications in which examination is requested on or after October 3, 2022, it will be very advantageous for Applicants to request examination before this date to be “grandfathered” into the current system, allowing such cases to avoid excess claim fees and RCEs throughout examination even after the new Rules come into force. Applicants should thus strongly consider requesting examination by September 30, 2022. To help optimize prosecution strategy for a given case or for any other questions, please do not hesitate to contact a member of our patent team for guidance through the transition.

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  • Single-Use Plastics Prohibition Regulations: Impact on Businesses

    On June 20, 2022, the federal government registered regulations that, as the name implies, prohibit (or restrict, in some cases) the manufacture, import and sale of certain single-use plastics that pose a threat to the environment. The Regulations will come into force on December 20, 2022, with the exception of certain provisions taking effect in the following months.1 Manufacturing, importing and selling certain single-use plastic products made entirely or partially of plastic, such as foodservice ware, checkout bags and straws, will be soon be prohibited. This regulation is expected to affect more than 250,000 Canadian businesses that sell or provide single-use plastic products, primarily in the retail, food service, hospitality and healthcare industries. The following is a comprehensive list of items that will be prohibited: Single-use plastic ring carriers designed to hold and carry beverage containers together2; Single-use plastic stir sticks designed to stir or mix beverages or to prevent liquid from spilling from the lid of its container3; Single-use plastic foodservice ware (a) designed in the form of a clamshell container, lidded container, box, cup, plate or bowl, (b) designed to serve or transport ready-to-eat food or beverages without further preparation, and (c) made from certain materials4; Single-use plastic checkout bags designed to carry purchased goods from a business and (a) whose plastic is not a fabric, or (b) whose plastic is a fabric that will break or tear, as the case may be, (i) if it is used to carry 10 kg over a distance of 53 m 100 times; (ii) if it is washed in accordance with the washing procedures specified for a single domestic wash in the International Organization for Standardization standard ISO 6330, as amended from time to time5; Single-use plastic cutlery that is formed in the shape of a fork, knife, spoon, spork or chopstick that either (a) contains polystyrene or polyethylene, or (b) changes its physical properties after being run through an electrically operated household dishwasher 100 times6; Single-use plastic straws that either (a) contain polystyrene or polyethylene, or (b) change their physical properties after being run through an electrically operated household dishwasher 100 times7. The main exceptions Single-use flexible plastic straws Single-use flexible plastic straws, i.e. those with a corrugated section that allows the straw to bend and maintain its position at various angles,8 may be manufactured and imported9. These flexible straws may also be sold in any of the following circumstances:  The sale does not take place in a commercial, industrial, or institutional setting10. This exception means that individuals can sell these flexible straws. The sale is between businesses in packages of at least 20 straws.11 The sale is made by a retail store of a package of 20 or more straws to a customer who requests it without the package being displayed in a manner that permits the customer to view the package without the help of a store employee12; The sale of straws is between a retail store and a customer, if the straw is packaged together with a beverage container and the packaging was done at a location other than the retail store13; The sale is between a care facility, such as a hospital or long-term care facility, and its patients or residents14. The export of single-use plastic items - All the manufactured single-use plastic items listed above may be manufactured, imported or sold for export15. That said, any person who manufactures or imports such items for export will be required to keep a record of certain information and documents as appropriate for each type of plastic manufactured item16. Records of the information and documents will have to be kept for at least five years in Canada17. Conclusion: an opportunity to rethink common practices In the short term, businesses will need to start thinking about how they will replace the plastic manufactured items they use. To help businesses select alternatives to single-use plastic items, the federal government has released its Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations.18 According to this document, the aim should be to reduce plastics.  Businesses may begin by considering whether a single-use plastic should be replaced or no longer provided. Only products that perform essential functions should be replaced with non-plastic equivalents. Stir sticks and straws can be eliminated most of the time. Another way to reduce waste is to opt for reusable products and packaging. Businesses are invited to rethink their products and services to provide reusable options. Reusable container programs (i.e. offering customers the option of using their own reusable containers) are a reuse option that businesses may want to consider, in particular to reduce the amount of plastic food containers. Only where reusable products are not feasible should businesses substitute a single-use plastic product with a recyclable single-use alternative. Businesses in this situation are encouraged to contact local recycling facilities to ensure that they can successfully recycle products at their end of life. Ultimately, charging consumers for certain single-use substitutes (e.g. single-use wooden or moulded fibre cutlery) may also discourage their use. Ibid, s. 1 Ibid, s. 3 Ibid, s. 6 Polystyrene foam, polyvinyl chloride, plastic containing black pigment produced through the partial or incomplete combustion of hydrocarbons or oxo-degradable plastic; Ibid. This standard is entitled Textiles – Domestic washing and drying procedures for textile testing; Ibid. Ibid. Ibid, ss. 4 and 5. Ibid, s. 1. Ibid, s. 4. Ibid, para. 5(2). Ibid, para. 5(3). Ibid, para. 5(4); According to Guidance for selecting alternatives to the single-use plastics in the proposed Single-Use Plastics Prohibition Regulations, the goal is to ensure that people with disabilities who need flexible single-use plastic straws continue to have access to them at home and can carry them to restaurants and other premises. Ibid, para. 5(5). Ibid, para. 5(6). Ibid, para. 2(2). Ibid., s. 8 Ibid, para. 9(1). https://www.canada.ca/en/environment-climate-change/services/managing-reducing-waste/consultations/proposed-single-use-plastics-prohibition-regulations-consultation-document.html

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  • Amendments to the Charter of the French Language: Impacts on the Insurance Sector

    Bill 96 – An Act respecting French, the official and common language of Québec (the “Act”) - was adopted on May 12, 2022 and assented to on June 1, 2022, its effective date. Certain provisions are already in force; for other provisions, a transitional period ranging from several months to three years will apply. This document provides an overview of the modifications included in the reform of the Charter of the French Language (the “Charter”) that will have an impact on various aspects relevant to insurance sector stakeholders doing business in Québec. Forming the centrepiece of the announced changes, the reform of the Charter includes strengthened oversight mechanisms governing the use of French as the language of commerce and business, as well as linguistic rights in the areas of employment and communications with agents of the State. Overseeing the language of commerce and business The reform of Section 55 of the Charter stipulates that contracts of adhesion and related documents must be drawn up in French. However, effective June 1, 2023, a French-language version of these contracts and documents must be provided to participants First Alinea of this amended section reads as follows: 55. Contracts pre-determined by one party and the related documents, must be drawn up in French. The parties to such a contract may be bound only by its version in a language other than French if, after its French version has been remitted to the adhering party, such is their express wish. The documents related to the contract may then be drawn up exclusively in that other language.1 Therefore, contractual clauses in which the parties simply indicate that they agree to be bound by a contract drawn up in a language other than French are no longer sufficient. The Civil Code of Québec stipulates that “A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.”2 To qualify a contract, the importance of the negotiated terms and conditions and their connection with the contract must be analyzed. It is generally recognized that if the essential stipulations are not negotiable, the contract is a contract of adhesion, even though some less important terms and conditions may have been negotiated by the parties. This amendment codifies the interpretation adopted by the Office québecois de la langue française (“OQLF”) and the courts,3 particularly given that negotiated contracts were not covered by this provision. To remove any doubt concerning this interpretation, Bill 96 was amended so as not to extend the scope of this requirement to include contracts containing “printed standard clauses”. The insurance contract Since their essential stipulations are typically drawn up by the insurer, insurance contracts and their endorsements are contracts of adhesion, as a general rule. Therefore, the French-language version of all related documents — notices, letters, insurance product summaries — must be provided to clients before they can decide whether they will be bound by a version drawn up in another language. During the parliamentary debates, Minister Jolin-Barette commented that Section 55 of the Charter only referred to consumers and that contracts between two companies could be drawn up in the language of their choice if that was the express wish of both parties. The term “consumer”, however, is not defined in the Charter. Ambiguity remains as to whether the Minister’s comment only referred to contracts containing standard clauses or whether contracts of adhesion were included. We will have to wait for the publication of the interpretation bulletins and the annotated edition of the act to determine whether Section 55 of the Charter applies to commercial insurance policies. In the meantime, we are of the opinion that if Québec lawmakers had wanted to exclude commercial contracts of adhesion, they would have expressly done so by means of an amendment. Insurance contracts in effect before June 1, 2023 will not have to be translated, nor will insurance contracts renewed without modifications since under those circumstances, the contract would not be regarded as a new contract.4 However, if an existing insurance contract is renewed with significant modifications, it will be regarded as a new contract and the French-language version thereof must be provided to clients so they may validly express their wish to be bound by a contract drawn up in a language other than French. Given that in most cases, insurance contracts are sent out to policyholders by regular mail or email, effective June 1, 2023, insurers, agents or brokers, as applicable, will have to send both the French-language and English-language versions of the contract in the same mailing or simply send the French-language version thereof. It is important to note that the Act provides for an exception to the requirement to provide the French-language version if: The insurance policy has no equivalent in French in Québec; and The insurance policy is originates from outside Québec or is not widely available in Québec.5 [unofficial translation] In all likelihood, this exception will only apply to highly specialized insurance products and will be interpreted restrictively given the Act’s primary objective. Unlike insurance contracts and related documents, invoices, receipts, discharge notices and other similar documents may be sent out in English if the French-language version remains available on terms that are at least as favourable.6 Services and marketing in French The Act introduces the Charter’s new Section 50.2, which states that businesses must respect consumers’ fundamental linguistic right to be informed and served in French. The same section reiterates this requirement with respect to “a public other than consumers” to whom are offered goods and services and who must henceforth be informed and served in French by businesses. Unlike consumers, however, clients who are businesses do not enjoy a fundamental linguistic right protected by the Charter. As regards marketing, the addition of the words “regardless of the medium used” to Section 52 of the Charter confirms that marketing documents in “hard copy” format must be in French, as must websites. If a version is available to the public in a language other than French, the French-language version must be available on terms that are at least as favourable. This provision took effect on June 1, 2022. Chat-type platforms or those facilitating direct communications with the insurer should make it possible for members of the public to communicate with the insurer’s representatives in French at all times. Communications with insurance agents and brokers Effective June 1, 2022, insurers are required to communicate in French with insurance agents and brokers who express the desire to do so.7 In addition, all information documents sent to insurance agents and brokers regarding underwriting or claims must be in French if they so wish. As regards contractual agreements between insurers,  insurance agents  and brokers, the need to provide a French-language version depends on the nature of the contract, i.e. whether it can be qualified as a contract of adhesion. French in the workplace Effective June 1, 2022, all companies doing business in Québec must comply with the following requirements in the area of employment rights: Respect employees’ right to work in French8; Use French in all written communications sent to employees; Ensure that all offers of employment, promotion or transfer; individual employment contracts; employment application forms; and documents concerning employment conditions and training sent to employees are drawn up in French;9 Take all reasonable means to avoid requiring employees to have knowledge  or a specific level of knowledge of a language other than French for employees to obtain employment or to maintain their position, including in particular:   Assess the actual needs associated with the duties to be performed; Make sure that the language knowledge already required from other staff members was insufficient for the performance of those duties; Restrict as much as possible the number of positions involving duties whose performance requires knowledge of or a specific level of acknowledge of a language other than French.10 It should be noted that individuals whose employment contracts are currently drawn up in English have until June 1, 2023, to ask their employer to translate their contract. Effective June 1, 2025, businesses with 25 employees or more in Québec must meet additional francization requirements for their Québec employees to obtain a francization certificate, including: Registering with the OQLF; Submitting an analysis of the status of the French language within the business; Putting in place a francization program within three months following an OQLF request to that effect. The above requirements were already in effect for businesses with more than 50 employees in Québec. French as the language of the civil administration The Act includes various modifications with respect to French as the language of the civil administration. The Québec government will be required to make exemplary and exclusive use of French, with certain exceptions. Effective June 1, 2023, all agents of the State and provincial government bodies will be required to communicate in French with all persons, including business representatives. All documents exchanged with the civil authorities, as well as all contracts and permits, must be drawn up in French. Insurance sector stakeholders outside Québec should expect to receive more communications in French from the Autorité des marchés financiers (“AMF”) given that the AMF is a body of the “civil administration”. Penalties It should be noted that new powers will be granted to the OQLF enabling it to conduct investigations and impose administrative and disciplinary penalties. As regards infractions of the Charter’s provisions, the Act provides for fines ranging from $3,000 to $30,000 for businesses and from $700 to $7,000 for individuals. These fines are doubled for a second offence and tripled for further offences. In addition, if an infraction continues for more than one day, each day constitutes a separate infraction. If an infraction is committed by a corporate director or officer, the Act provides for fines ranging from $1,400 to $14,000. Questions of interpretation Various provisions have raised questions of interpretation that are still difficult to resolve at the time of writing. Interpretation bulletins and an annotated edition of the act will be published by the provincial government with a view to guiding businesses in the application of the Act; they will also help to clarify certain provisions that remain ambiguous for the time being. For further information on changes concerning trademarks, please consult a recent publication by our colleagues specializing in intellectual property. Sec. 55, Para. 1 of the Charter. Civil Code of Québec, CQLR ch. CCQ-1991, Sec. 1379, Para. 1. Westboro Mortgage Investment vs. 9080-9013 Québec inc., 2018 Superior Court of Québec 1. Leave to appeal dismissed 2019 Court of Appeal of Québec 1599. Didier LLUELLES, Droit des assurances terrestres, 6th ed., Montréal, Éditions Thémis, 2017, Para. 186. Sec. 21.5 and Sec. 55 of the Charter. Sec. 57 of the Charter. Sec. 50.2 of the Charter. Sec. 5 and Sec. 50.2 of the Charter. Sec. 41 of the Charter. Sec. 46 of the Charter.

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  • Confinement in an institution: a judge must intervene where evidence is insufficient

    In a judgement rendered on June 3, 2022,1 the Court of Appeal of Quebec reiterated that a judge who has an application for confinement in an institution before them must inform the parties when they consider that the psychiatric reports filed are insufficiently detailed. In these circumstances, the Court must allow the parties to remedy deficiencies in the evidence rather than dismissing the application. The Court of Appeal based its reasoning on the following articles: Article 268 of the C.C.P.2 allows a judge to draw a lawyer’s attention to any deficiency in the proof of procedure and authorize the parties to remedy it, especially when the judge notes that the insufficient evidence concerns an essential element and could affect the outcome of the dispute. Article 50 of the C.C.P. gives judges the power, even on their own initiative, to require the attendance of witnesses or the presentation of evidence. Given the importance for a judge to make an informed decision, both with respect to a patient’s personal integrity and in assessing the danger they may pose to themselves or to others, the Court of Appeal considers that a judge has an obligation to exercise their discretionary power and require the attendance of one or even both psychiatrists who signed the reports filed in support of an application.  In 2009, the Court had previously concluded that a judge in charge of ruling on an application for confinement in an institution is at liberty to [translation] “report, at the time of the hearing, that the references indicated in two sections of the form used by physicians to prepare a psychiatric examination report for an order of confinement in an institution—one concerning the reasons and facts upon which the physician has based their opinion and the other the assessment of the seriousness of the condition and its likely consequences for the patient and for others—appear to them to be insufficient.”3 It appears that this issue has been taken a step further, as the Court has concluded that the discretion granted by articles 50 and 268 of the C.C.P. must be exercised in order to give the health institution applying for confinement the opportunity to complete its evidence. Centre intégré de santé et de services sociaux de l’Outaouais v. J.L., 2022 QCCA 792 Code of Civil Procedure, CQLR c. C-25.01. (C.C.P.) Centre de santé et de services sociaux Pierre Boucher v. A.G., 2009 QCCA 2395, para. 38.

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  • Trademarks and Charter of the French language: What can you expect from Bill 96?

    On May 13, 2021, the Quebec government introduced Bill 96 to amend the Charter of the French language (the “Charter”) to strengthen the provisions regarding the use of French, particularly with respect to the language of commerce and business. This bill has been thoroughly reviewed in parliamentary committee and the committee tabled its report on April 26. In the current political context, it is expected that Bill 96 will be adopted in the coming months. The final form of the bill and its coming into force have yet to be determined. However, we can already anticipate that the timeframe for compliance with these new rules will be three years following assent of the Bill.1 The bill provides for a number of changes to the Charter, including amendments with respect to trademarks, which currently benefit from an exception. Under this exception, businesses may currently use a trademark in a language other than French in Quebec, provided that the French version of the trademark has not been registered. Since 2019, sufficient French must be present in public signage outside a building when a trademark is used in a language other than French.2 Under Bill 96, it will still be possible to use a trademark in a language other than French on products, in commercial publications and on public signage and commercial advertising in Quebec. However, the conditions for benefiting from this exception under the Charter will be modified and deserve not only attention, but also action! Start by reading the following. If you use a trademark in a language other than French in Quebec or if you plan to do so, you must first make sure that this trademark is registered.3 You will also need to review the public signage outside your premises, to comply with the new requirement of a markedly predominance presence of French.4 Finally, you will need to revise your product labels and packaging if your registered trademarks contain descriptive or generic terms in a language other than French.5 In such a case, you may have to modify your packaging and labels to add a French translation of these terms. It should be noted that the Charter applies to businesses with an establishment in Quebec, but also possibly to businesses based outside Quebec, insofar as their website is intended to perform a commercial act on Quebec territory. With respect to websites, the current practice of the Office québécois de la langue française (“OQLF”) is to intervene only in cases where the business has an establishment in the province of Quebec. If the enterprise communicating  with Quebec customers does not have an establishment there, the OQLF favours an incentive approach.6 The future will tell  whether this practice  will be maintained once the Charter is amended.There is no doubt that foreign companies that are the subject of a complaint in this regard will be given time to translate their website into French in order to avoid the sanctions that will be more severe under the new rules. Let’s take a closer look at what each of the proposed changes means, should the bill be passed in its current form. Change #1: French to be markedly predominant on public signage outside the premises Bill 96 replaces the requirement of the sufficient presence of French with a requirement of markedly predominance of French visible from the exterior of the premises.7 Currently, the markedly predominance of French is assessed within the parameters set out in the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French Language. According to this regulation, the presence of French is considered markedly predominant if the French text has a much greater visual impact than the text in the other language (i.e. twice as large). It will be interesting to see if these rules will be maintained or if new criteria will be established for the application of Bill 96. The first element to keep in mind with respect to the requirement of the markedly predominance of French under the current law is to disregard the visual impact of the trademark. Indeed, section 1 of the Regulation provides as follows: In assessing the visual impact, a family name, a place name, a trade mark or other terms in a language other than French are not considered where their presence is specifically allowed under an exception provided for in the Charter of the French language (chapter C-11) or its regulations. Thus, as long as the trademark is registered in accordance with the new applicable rules, the visual field occupied by the trademark must be disregarded in assessing whether French is otherwise markedly predominant in the public signage outside the premises. In other words, no modification of your public signage will be required as long as your sign consists of the following: (1) a trademark (registered) in a language other than French and (2) generic or descriptive terms in French. Indeed, the only elements displayed in such a case (apart from the trademark) would be in French. However, if your public signage includes elements in a language other than French, the French should be markedly predominant (i.e. twice as large) in the visual field (excluding the space occupied by the trademark. The regulations set out various presumptions to determine whether the criterion of the much greater visual impact of French is met. In the case of a single poster: the French text will be deemed to have a much greater visual impact if the following conditions are met:8 the space devoted to the French text is at least twice as large as that devoted to the text in another language; the characters used in the French text are at least twice as large as those used in the text written in another language; and the other features of the posters do not reduce the visual impact of the French text. In the case of separate posters of different dimensions: the French text will be deemed to have a much greater visual impact if the following conditions are met:9 the posters bearing the French text are at least as numerous as those bearing the text in the other language; the characters used in the French text are at least twice as large as those used in the text in the other language; and the other features of posters do not reduce the visual impact of the French text. In the case of texts both in French and in another language: the text in French is deemed to have a much greater visual impact if the following conditions are met:10 the posters bearing the French text are at least as numerous as those bearing the text in the other language; the posters bearing the French text are at least twice as large as those with the other language text; the characters used in the French text are at least twice as large as those in the text in the other language; and the other features of the posters do not reduce the visual impact of the French text Finally, it should be noted that the criterion of the markedly predominance of French will also be applied to the trade name of the business, if it is visible from outside the premises and includes an expression from a language other than French.11 Change #2: In order to avoid translation into French, registration of the trademark used in public signage and commercial advertising is mandatory In order to use a trademark in a language other than French, without translation, with regard to public signage and commercial advertising, it will now be required to demonstrate that: the trademark is already registered in Canada; and no corresponding French version appears on the Trademarks Register.12 If these conditions are not met, the trademark will have to be accompanied by a markedly predominant French translation. If you are currently using a brand in a language other than French that is not registered, be quick because the registration process in Canada can easily take three years! Otherwise, you may be required to modify your public signage and commercial advertising to include a markedly predominant French version of the trademark. While it is possible to request an accelerated examination of an application for registration in certain special circumstances (including the fact that a court proceeding is pending), it is far from certain that the Canadian Intellectual Property Office will agree to expedite examination of applications for reasons of compliance with the Charter. It is therefore better not to delay filing your trademarks in order not to expose yourself to the consequences provided under the law. In practical terms, public signage includes any message posted in a place accessible to the public, whether inside or outside the premises, whereas commercial advertising is the expression of a commercial message, regardless of the form. The following examples are considered public display or commercial advertising: signs, posters, billboards, displays, bulletin boards; delivery vehicles, promotional bags, carts, employee uniforms; catalogues, brochures, leaflets, directories and other similar publications; and websites and social media. Change #3 : A trademark used in connection with the products must be registered to avoid French translation In its original form, the bill was silent on the issue of the use of a trademark on a product, suggesting that the status quo would continue to apply, namely that it would still be possible to use a trademark in a language other than French on a product (including its packaging or label), without the need for registration. However, the government has added a provision during the course of the parliamentary work by providing for the obligation to register trademarks in a language other than French, to avoid the addition of a French translation.13 So, no exception for product labels and packaging: make sure you register your trademarks if you have not already done so. Otherwise, you could be forced to withdraw your products from the market and pay fines under the new law, as discussed below. Change #4: Requirement to translate generic and descriptive terms for product trademarks The amendment proposed in parliamentary committee discussed above goes much further than the need to register the trademark and could have a major impact on some businesses by requiring them to modify their packaging and labels  forproducts sold in Quebec. The new section 51.1 of the Charter proposed in parliamentary committee, provides that if the registered trademark (in a language other than French) contains generic or descriptive terms, these will have to be translated into French. 51.1 notwithstanding section 51, on a product, a registered trademark within the meaning of the Trademarks Act (Revised Statutes of Canada, 1985, chapter T-13) may be, even in part, solely in a language other than French where there is no corresponding version in French on the register kept under that Act.However, if generic or descriptive terms of the product are included in such trademark, they must appear in French on such product or on a medium permanently attached to it. (emphasis added) A reading of the Committee’s work provides a better understanding of the purpose of this product-specific rule: the government seems to want to limit the practice of some businesses which register, as a trademark, the label affixed to a product consisting of the main trademark, but also of several descriptive or generic terms, which would otherwise have to be translated to comply with the Charter. The example of the SOFTSOAP trademark was discussed in parliamentary committee. To illustrate this, we reproduce here two examples of registered trademarks for SOFTSOAP products: As the law currently stands, these trademarks may be registered under the Trademarks Act and they comply with the Charter. The owner of these trademarks can therefore rely on the “recognized trademarks” exception and sell its products in Quebec without translating into French the descriptive or generic terms such as “soothing clean,” “aloe vera fresh,” “refill” and “good for 800 dispenses.”  Based on discussions in the parliamentary committee, the government’s concern does not seem to be directed towards the main trademarks, in this instance, SOFTSOAP, but rather towards the registration of purely descriptive terms, which do not, in themselves, have the vocation of a trademark and which nevertheless benefit from the exception of recognized trademarks under the current law.  The regulations will, we hope, clarify the scope of this section 51.1 of the Charter, if it is adopted, by providing that this new requirement does not apply to the main trademarks of products. We also hope that a reasonable period of time will be given to businesses to allow them to change their labels and packaging. Change #5: Complaints, powers and penalties in the event of violation The OQLF is responsible for ensuring compliance with the Charter and its regulations. While it has the authority to identify violations, it mainly acts on complaints from the public. After reviewing a complaint, the OQLF sends an official letter if it judges that there has been a violation and it gives the business a deadline to respond. The OQLF can refer the matter to the Director of Criminal and Penal Prosecutions if the matter is not resolved to its satisfaction, who can in turn bring an action before the Court of Québec. In the event of a conviction, the court determines the amount of the fine to be paid. The OQLF mainly intervenes in cases of violations regarding public signage and websites for businesses with an establishment in Quebec. The bill brings some changes to the handling of complaints. The OQLF will have to inform the complainant of the handling of the complaint and the measures that the OQLF intends to take against the company targeted by the complaint.14 The OQLF will also benefit from new powers as of the assent of Bill 96,15 including: the power to issue orders in case of a breach (removal of products from shelves);16 the power to ask to the Superior Court to issue an injunction for the removal of non-compliant products or the removal or destruction of posters, advertisements, billboards or illuminated signs that contravene the Charter.17 Finally, the amount of fines to be paid in the case of a violation is increased as follows:18 individuals: $700 to $7,000; legal persons: $3,000 to $30,000. The bill provides that the amount of the fines doubles for a first recidivism offence and triple for any subsequent offence.19 The amount increases with each day the violation continues, with each day counted as a separate violation.20 Conclusions: What to do to prepare yourself for the entry into force of Bill 96? In practice, the requirement of having a registered trademark will be problematic for businesses who want to use a non-French trademark in Quebec, without a French translation. To comply with the new rules, businesses will indeed have to delay their launch in the province of Quebec until their mark is registered. As indicated above, registration process may easily take up to three years if not more. Let’s hope that the government will amend Bill 96 to require filing of an application as opposed to trademark registration. Businesses that use trademarks in a language other than French have every reason to take the following measures right now:  List all trademarks used in a language other than French (including slogans) as well as those to be used in upcoming projects; Consult a trademark expert to determine the best strategy, including clearance searches to ensure that these trademarks are registrable; File trademark applications quickly, given the lengthy registration process in Canada (i.e. a minimum of three years),. A review of product labels and packaging should also be initiated to ensure compliance with the new rules, once the bill is passed. Finally, public signage outside the premises will also have to be reviewed insofar as a language other than French is used, apart from the trademark. A proactive approach will allow you to avoid costs related to the addition of a French translation in public signage, advertising and labelling of your products and services and, moreover, to avoid fines in the event of non-compliance with the new rules. Ready, Set, Register! Bill 96, article 201 paragraph 5 Regulation respecting the language of commerce and business, section 25.1 Bill 96, article 47 Bill 96, article 47 Bill 96, article 42.1 10 legal questions about the Charter of the French Language, websites and social media accounts, Question 3 and Question 6; Les médias sociaux et la Charte de la langue française – Guide pratique à l’intention des entreprises, https://www.oqlf.gouv.qc.ca/francisation/entreprises/guide-medias-sociaux.pdf, pages 7 and 8 Bill 96, article 47 Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 2  Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 3  Regulations defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, section 4 Bill 96, article 48 Bill 96, article 47 Bill 96, article 42.1 Bill 96, article 107 Bill 96, article 201 Bill 96, article 113 (177) Bill 96, article 113 (184) Bill 96, article 114 (205) Bill 96, article 114 (206) Bill 96, article 114 (208)

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