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  • “Senior managerial personnel” status under the Act respecting labour standards

    In Delgadillo c. Blinds To Go inc. and the Tribunal administratif du travail,1 the Court of Appeal of Québec rendered a very important decision regarding the concept of “senior managerial personnel” under the Act respecting labour standards (“ALS” or the “Act”). In the future, this decision should guide the administrative judges of the Administrative Labour Tribunal (“ALT”) when they are required to determine if a manager who has been dismissed constitutes “senior managerial personnel” for the purposes of the Act. The interest of the decision As a general rule, and subject only to certain exceptions regarding specific benefits (such as family, pregnancy or maternity leave) or the recourses related to psychological harassment, senior managers are excluded from the application of the ALS. Consequently, much has been written on the issue of whether a manager constitutes senior managerial personnel, especially in the context of complaints contesting dismissals under section 124 of the ALS, where employers usually argues that the manager who was dismissed was a member of the senior managerial personnel and is therefore not entitled to file such a complaint. Since the enactment of the ALS, the predecessors of the Administrative Labour Tribunal2 have had ample opportunity to decide on this issue. However, case law on the subject is by no means unanimous. According to some administrative judges, a manager who has a high degree of autonomy, a generous salary and some discretion in discharging his or her duties, will not be categorized as a senior managerial personnel where he or she does not have the authority to make decisions regarding the company’s strategies and policies. Other administrative judges are less exacting. Despite having on several occasions considered the issued, the Court of Appeal has not developed clear principles regarding the relevant criteria applicable for determining “senior managerial personnel” status within the meaning of the ALS. In Delgadillo, the Court of Appeal decided on a flexible approach for analyzing the concept of “senior managerial personnel”. The facts in the Delgadillo case In this case, the manager of one of two plants owned and operated by Blinds To Go, a company which manufactures blinds made to measure within a short period of time and operates hundreds of retail stores. As soon as a customer places an order with one of the stores, the order is sent to one of the two plants to be manufactured and delivered to the customer within 48 hours. As such, the two manufacturing plants are the keystone of the company’s business model. In its decision, the Court of Appeal noted that the plant manager had an important role within the company, had broad discretion in the performance of his duties and had a close relationship with the company’s owners, who placed a lot of trust in him. The proceedings filed The plant manager filed a complaint for dismissal without good and sufficient cause with the Commission des relations du travail (“CRT”). The administrative judge who heard the case decided that he did not constitute “senior managerial personnel” pursuant to the ALS and therefore his complaint was valid. The CRT ultimately decided in favour of the plant manager. The specific issue of senior managerial status was raised before the Superior Court of Québec. The Superior Court reversed the CRT’s decision and held that the plant manager met the definition of senior managerial personnel and he, therefore, could not file a complaint for dismissal without good and sufficient cause. The Court of Appeal agreed with the CRT that the concept of “senior managerial personnel” under the ALS should be interpreted narrowly, but not so narrowly as to render it meaningless or restrict it solely to presidents of companies, or those occupying similar positions. Some details from the Court of Appeal’s decision In its judgment, the Court of Appeal noted that the CRT made two errors: The first is that it ignored the particular nature of the business and, specifically, the uniqueness of its business model. The manufacturing plant operations were the “nerve centre” of the business. Regarding this first error, the Court held that by omitting the context in favour of a partial image of the evidence, in light of the applicable legal principles, the CRT rendered a decision that was not within the range of possible outcomes and which ignored a great deal of evidence, resulting in a decision that was unacceptable on the facts of the case. The second error is that it interpreted the concept of “senior managerial personnel” so narrowly that it, for all intents and purposes, neutralized the provision or made it applicable solely to presidents of companies, or those occupying similar positions. At the initial trial, the CRT administrative judge held that the complainant plant manager’s authority and autonomy was limited to that division. On this view, a true senior manager would not only have authority over the plant, but would also have a say over other divisions, human resources, financial affairs, the IT network, marketing and the manufacturing division in the U.S. Thus, according to the ALT, unlike the complainant, a true senior manager is an employee who has a right to scrutinize [translation:] all of the company’s operations, not just one division, as important as that division may be. According to the Court of Appeal, such an analysis cannot be accepted. While a senior manager may be vested with general authority over the company, a person may also be found to be a senior manager despite the fact that he or she only has departmental, functional, divisional, regional or “consulting” authority. It is also possible that an individual with such authority will not constitute senior managerial personnel within the meaning of the ALS; everything will depend on the context and the facts. But it cannot be ruled out summarily without due consideration to context and facts, which is essentially what the CRT did in this case. What the decision stands for The Delgadillo decision broadens significantly the concept of “senior managerial” personnel by concluding that it is possible for a senior manager to have only departmental, functional, divisional, regional or “consulting” authority. Therefore, the qualification of a complainant as senior managerial personnel will no longer be limited to employees who oversee all of the company’s operations, but may also extend to those who have that authority in a much more restricted sphere, such as a single department, division or region. Similarly, individuals who exercise functional or “consulting” authority could also be found by adjudicators to constitute senior managerial personnel. This broadening of the analytical framework means that ALT judges will have to consider the specific nature of the company and its organization, in addition to the role of the individual employee, his or her importance in the hierarchy and the contribution he or she makes to the company’s success. That contribution need not be related to all of the company’s operations; it may be limited to only one of its major components. It is anticipated that ALT case law will follow the guiding principles of the Court of Appeal and will demonstrate greater flexibility in its assessment of who constitutes “senior managerial personnel” under the ALS.   Delgadillo v. Blinds To Go inc., 2017 QCCA 818. The Bureau du Commissaire général du travail and, more recently, the Commission des relations du travail.

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  • Inappropriate conduct, lack of cooperation and insufficient availability
    are sufficient grounds for a health institution’s to refuse to renew a physician’s practice privileges

    On May 31, 2017, the Superior Court of Québec1 (the “Court”) dismissed a urologist’s application for judicial review of a decision of the Administrative Tribunal of Québec2 (the “ATQ”) upholding a decision made by the Board of Directors of a health institution (the “Board”) not to renew the urologist’s practice privileges, particularly due to recurring behavioural problems. Facts After a few years of practice, the urologist was questioning his professional life. He decided to reduce his workload and informed the institution’s Professional Services Department of his plans. However, given that the needs in the region did not warrant the hiring of a fourth urologist, the institution was unable to create a new position in urology, which would have been necessary in order to accommodate the decrease in the urologist’s workload. The latter reacted strongly when he was informed of this refusal and nonetheless decided to impose his own restricted availability on the institution. In so doing, he breached the regional urology agreement and defied the institution’s medical and administrative authorities. The Board decided not to renew the urologist’s status and practice privileges principally because his chronic lack of cooperation and availability affected the accessibility and continuity of care of the urology department’s services. The Board concluded that the urologist’s reported conduct was incompatible with the obligations associated with a physician’s practice privileges. In addition, the Board found that the urologist was incapable of accepting inherent constraints of his medical practice, displayed a severe lack of self-criticism, and was insubordinate and disloyal to his employer. Challenge before the ATQ The urologist’s challenge of the Board’s decision before the ATQ resulted in a lengthy inquiry, requiring 12 days of hearings. Based on the evidence submitted before the ATQ, the conclusions and findings were the same as those of the Board and as a result, the ATQ upheld the Board’s decision and dismissed the urologist’s recourse. The ATQ noted that a Board of Directors can decide not to renew the privileges of a physician who demonstrates behavioural problems: [Translation] Indeed, the renewal of the appointment, status and privileges of a physician working in a hospital is not automatic. This requires a broad analysis where, in particular, the credentials committee and executive committee of the Council of Physicians, Dentists and Pharmacists make recommendations to the Board of Directors regarding the physician’s behaviour and recurring conduct and attitudes, as contemplated in the ARHSSS.3 The ATQ also pointed out that collaboration is an essential component of the proper organization of the care services provided in a hospital: [Translation] Over the years, his contentious attitude and particularly his intransigence in the positions he has taken, notably with respect to “the scope of his obligations”, have completely undermined the confidence his colleagues and the employees at the hospital have in him, whereas collaboration, support and teamwork are essential in a hospital context to ensure the provision of quality care services to the patients.4 Finally, the ATQ stated that the urologist’s observed conduct fell short of the conduct expected from a physician practising in a health institution: [Translation] (…) the applicant remains insensitive to the expectations in his workplace, as well as the signals from his colleagues, the nursing and hospital staff, and the administrators. His behaviour does not change and it has proven impossible to adapt the applicant’s practice to the institution’s operations. In fact, the applicant’s behaviour is not in keeping with the values in this field and one of the missions of the CSSS, namely, to promote the effective and efficient provision of health and social services in a manner that respects the rights of the users of these services.5 Application for judicial review in the Superior Court of Québec Following the ATQ’s decision, the urologist brought an application for judicial review before the Superior Court on the grounds that the ATQ did not provide sufficient reasons for its decision. The urologist also claimed that the ATQ improperly assessed the criteria applicable to the refusal to renew his privileges and that this constituted a disproportionate sanction in light of the evidence submitted at the hearing. After reviewing the file, the Court found that there was sufficient relevant evidence of the physician’s inappropriate conduct to justify the non-renewal of his privileges. The Court also found that the ATQ’s decision intelligibly identified the complaints on which its refusal to renew was based. Indeed, the physician’s conduct was extremely welldocumented. The evidence as a whole also demonstrated the various attempts that had been made to resolve the recurring problems caused by the urologist’s inappropriate conduct. Finally, the Court noted that the refusal to renew practice privileges based on a physician’s conduct is a measure that is specifically contemplated in the Act respecting health services and social services:6 [Translation] In this case, based on the criteria applicable to a refusal to renew the appointment of a physician, the Court is of the view that the ATQ reasonably concluded that the applicant’s claim seeking the reinstatement of his rights and privileges as a specialist in urology should be dismissed. Section 238 ARHSSS stipulates as follows: […] An application for the renewal of an appointment may be refused by the Board of Directors only on the basis of criteria of qualifications, scientific competence or conduct of the physician or dentist, having regard to the specific requirements of the institution, and fulfilment of the obligations attached to the enjoyment of the privileges granted. […] This is in fact what the ATQ analyzed, i.e. the physician’s conduct in light of the third party’s specific requirements. The Court should not substitute its own judgment for the judgment of the ATQ on this point. It should only assess whether the ATQ’s decision, in the context of the facts and evidence submitted before it, was reasonable in light of the legal framework applicable to the refusal to renew, as cited above.7   T.T. c. Tribunal administratif du Québec, 2017 QCCS 2394 (hereinafter “T.T. v. TAQ”).. T.T. c. CSSS A, 2014 QCTAQ 07132. Ibid, para. 208. Ibid, para. 213. Ibid, paras. 255 and 256. CQLR, c. S-4.2. T.T. v. TAQ, préc., note 1, paras. 46 to 48.

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  • Essential services in the health sector :
    the Tribunal administratif du travail declares section 111.10
    of the Labour Code unconstitutional

    In a decision rendered this past August 31st by Justice Pierre Flageole,1 the Tribunal administratif du travail (the “Tribunal”) declared section 111.10 of the Labour Code2 to be constitutionally inoperative. This provision requires that a set minimum percentage of employees must remain on the job during a strike in health and social services institutions. The decision was rendered in the context of proceedings filed by unions affiliated with the Confédération des syndicats nationaux (the “Unions”). The proceedings were filed in the context of common front negotiations in 2015, prior to strike action being taken. Among other things, the Unions argued that the minimum percentages set by this provision are arbitrary and bear no relation to what should be considered necessary for the maintenance of the truly “essential” services in the event of a strike. Based on testimony of the employees, the Unions argued that several of the tasks performed by those employees were not “essential” and that the Tribunal did not have jurisdiction to reduce the percentages set out in section 111.10 to what truly constituted essential services to be rendered during a strike. Referring to the principles set out by the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan3 (the “Saskatchewan decision”), the Unions contended that this regime did not minimally impair the rights granted by the Canadian Charter of Rights and Freedoms4 and the Québec Charter of Human Rights and Freedoms.5 The Attorney General countered that the legislator’s objective in adopting the provisions regarding the maintenance of essential services was to recognize the primacy of the population’s right to healthcare over the employees’ right to strike. The percentages set out in section 111.10 were not set at random, but rather were determined after learning from the situation that existed prior to the adoption of the provision. According to the Attorney General, the percentages were adapted so as to ensure that the necessary services were rendered. According to the Attorney General, there were major differences between the provisions at issue in the Saskatchewan decision and those in effect in Québec insofar as section 111.10 did not prohibit the right to strike, but only limited it. In this sense, contrary to the Public Service Essential Services Act6 in effect in Saskatchewan, this provision did not constitute a “substantial interference with collective bargaining” which had the effect of totally prohibiting the right to strike of the designated individuals. Moreover, the reduced effectiveness of the strikes alleged by the Unions was a result of their own decision to maintain services in all institutions across the board at 90%, notwithstanding the fact that section 111.10 allowed them to maintain lower levels of service in certain hospital centres and in the CLSCs (80% and 60% respectively). Basing himself on the Saskatchewan decision, Justice Flageole noted that the right to strike has risen to the level of a protected right under the Canadian Charter of Rights and Freedoms. Furthermore,in setting these minimum percentages, the Labour Code does not minimally impair the employees’ right to strike. Also, the fact that the application of these percentages is mandatory depending on the care unit and the category of service and there is no right of review of those percentages before a tribunal or independent body, “goes beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike”.7 According to the Tribunal, the situation created by section 111.10 is not very different from the situation which was considered in the Saskatchewan decision. Consequently, the Tribunal declared section 111.10 of the Labour Code to be constitutionally inoperative and gave the Québec government one year to revise it. We are following this matter closely and will keep you informed of any further developments.   Syndicat des travailleuses et travailleurs du CIUSSS du Centre-Ouest-de-l’Île-de- Montréal – CSN et Centre intégré universitaire de santé et de services sociaux du Centre-Ouest-de-l’Île-de-Montréal, 2017 QCTAT 4004. Labour Code, CQLR c. C-27. Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 SCR 245. Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. Charter of Human Rights and Freedoms, CQLR c. C-12. Chapter P-42.2 of the Statutes of Saskatchewan, 2008. Paragraph 241 of the decision.

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  • Victory for the managerial personnel of the Health and Social Services Network in Superior Court of Québec – What is the immediate takeaway?

    On July 27, 2017, the Superior Court of Québec rendered a decision in favour of the managerial personnel of the Health and Social Services Network, concluding that the changes made to some of their working conditions by the Minister of Health were null and void.1 Background The Association des gestionnaires des établissements de santé et de services sociaux (“AGESSS”) is a professional union which represents senior and mid-level managerial personnel employed by the network. With its motion seeking a declaratory judgment and declaration of nullity, the AGESSS was not contesting the validity of the job eliminations carried out pursuant to the Act to modify the organization and governance of the health and social services network, in particular by abolishing the regional agencies, commonly referred to as Bill 10.2 However, the AGESSS was claiming that the amendments made pursuant to an order issued by Minister Gaétan Barrette which modified certain provisions of the regulations establishing the working conditions of managerial personnel of the network3 were null and void. Bill 10, which was assented to in February of 2015, stipulated that some of its provisions were to come into force on February 9, 2015, including section 189 which sought to eliminate certain managerial positions at a later date, specifically March 31, 2015. Under section 189 of Bill 10, [a]ny person referred to in this section whose position has been eliminated is not entitled to indemnities other than those provided under his or her conditions of employment.4 The remaining provisions of Bill 10 came into force on April 1, 2015. This includes perhaps most notably sections 135 and 136 of Bill 10, the latter of which stipulates that [i]f a position is eliminated because of a reorganization carried out pursuant to this Act, the maximum endof-engagement indemnity provided for in sections 116 and 124 of the Regulation may not exceed 12 months’ salary. Section 136 therefore had the effect of reducing the end-of-engagement indemnities payable to affected managerial personnel from 24 to 12 months of salary. Following the ministerial ruling on March 23, 2015, the working conditions were retroactively amended such that not only were the endof-employment indemnities reduced, but the total value of the amounts payable in the event an individual took pre-retirement leave could not exceed 12 months of salary (in both pre-retirement leave and end-ofengagement indemnity, if the manager elected to take it during his or her leave). However, this amendment came into force on March 23, 2015, that is, before the elimination of the positions imposed by Bill 10, which were to occur on March 31, 2015. This change brought about by ministerial ruling had the effect of amending Bill 10, among other laws passed by the government. The Protection of acquired rights principle The Minister explained that the purpose of this amendment was to correct a clerical error. The Court dismissed this argument, ruling that the statute was clear and did not contain any such error. That being said, the Superior Court accepted the arguments of the AGESSS and held that Bill 10 is consistent with the principle of the protection of acquired rights insofar as they do not retroactively affect the rights of affected individuals. Indeed, the conditions applicable to managerial personnel whose positions were eliminated by Bill 10 are those set out in the Regulation respecting certain conditions of employment as they existed on March 31, 2015, given that section 136 of Bill 10 (which had the effect of reducing the end-of-employment indemnity to 12 months) only came into force on April 1, 2015.5 As a result, the retroactive amendments made to the Regulation respecting certain conditions of employments on March 23, 2015 had the effect of amending Bill 10 and yet were not authorized by any provision of Bill 10 or the Act respecting health services and social services. Moreover, these amendments could not be valid as the Act did not give the Minister the power to amend a law passed by the government, and it certainly not provide the Minister the power to do so retroactively. Duty to consult Relying on a 1984 governmental decree which acknowledged the status of AGESSS as representative, the Superior Court confirmed that the Health Minister and its representatives had the duty to consult this association prior to changing the working conditions of the managers in the network. Furthermore, the absence of any consultation was found by the Court to be another reason why the amendments to the Regulation respecting certain conditions of employment had to be nullified as they were contrary to the liberty of association recognized by the Canadian Charter of Rights and Freedoms. However, the Court noted that the AGESSS did not contest the validity of Bill 10 on any basis whatsoever. More specifically, it did not raise any argument regarding mandatory consultation.6 Conclusions and recommendations Accordingly, the Court declared the ministerial order to be null and void and held that the end-of-employment and preretirement indemnities of the managers whose positions were eliminated by Bill 10 on March 31, 2013 must be determined in accordance with the Regulation respecting certain conditions of employment as it existed prior to the ministerial order. Depending on the factual situation of each manager, adjustments could therefore be claimed. However, the Minister and the government have 30 days from the judgment to apply for leave to appeal with the Québec Court of Appeal.   AGESSS c. Gaétan Barrette, es qualités de ministre de la santé et des services sociaux et P.G. du Québec, C.S. 200-17-022087-159, July 20, 2017 (Honourable Suzanne Ouellet, S.C.J.) An Act to modify the organization and governance of the health and social services network, in particular by abolishing the regional agencies,, CQLR, c. O-7.2. Regulation respecting certain terms of employment applicable to officers of agencies and health and social services institutions,, CQLR, c. S-4.2, r. 5.1, hereinafter referred to as “Regulation respecting certain conditions of employment”. Last subparagraph of section 189 of Bill 10. Paragraphs 22, 68, 69, 74-82, 107 and 109 of the judgment. Paragraphs 132-133 and 135 of the judgment.

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  • The award of moral damages following a collective dismissal

    A recent Superior Court decision in Peintures Industrielles Évotech1 ruled that the grievance arbitrator had acted within his jurisdiction in awarding moral damages to employees dismissed abruptly when the Company moved its operations to Ontario. Context of the Évotech case Évotech, which manufactures, distributes and sells industrial paint, was negotiating the renewal of a collective agreement that had expired several months before. When the lease of one of its two premises located in Québec was about to expire, Évotech moved its inventory and equipment to Cornwall in the neighbouring province of Ontario. The move made perfect sense for Évotech. Its Québec facilities had fallen into disrepair and had become unsafe. In addition, the relocation to Cornwall allowed the Company to benefit from significant subsidies. The plant director thus summoned all the employees to the cafeteria to announce the closure of the plant. Employees were told that they would receive a compensatory payment in lieu of notice equal to eight weeks of work in addition to the termination pay provided by the collective agreement. Several security guards were present when the director read a brief statement confirming the immediate dismissal and notifying the employees that they had to make an appointment to collect their belongings. According to the evidence, the employees were in shock. The union filed two grievances to contest the employer’s decision, alleging that the move resulted in giving work to persons excluded from the bargaining certificate, contrary to the provisions of the collective agreement. Seized with the grievances, arbitrator Charles Turmel concluded in his award that the move of operations and the collective dismissal contravened the clause of the collective agreement limiting the right to allocate work2. The arbitrator ordered the employer to pay to each dismissed employee $1,000 as moral damages, in addition to the equivalent of three weeks of salary per year of service. It is to be noted that these amounts were in addition to the 8 week indemnity for collective dismissal and the supplemental indemnity under the collective agreement. According to the arbitrator, awarding moral damages to the employees was justified by the [TRANSLATION] “suddenness of their dismissal”3. Furthermore, the arbitrator ordered Évotech to pay to the union $10,000 in damages for having failed to negotiate in good faith the renewal of the collective agreement, thus blaming the company for having undertaken the negotiations for the renewal of the collective agreement while planning the move of its operations. The decision in judicial review On April 10 on this year, the Superior Court allowed in part the application for judicial review and modified some of the conclusions of the arbitration award, which it deemed to be unreasonable. Madam Justice Chantal Tremblay confirmed that the arbitrator’s conclusion that the cessation of the employer’s operations in Québec constituted a relocation rather than a closure, fell within a range of reasonable outcomes. Moreover, the judge confirmed that the employer had failed to comply with the clause of the collective agreement prohibiting the Company from giving work to employees excluded from the bargaining unit. The Court considered that awarding $1,000 in moral damages to each of the employees also fell within a range of reasonable outcomes, in view of the circumstances surrounding the collective dismissal. However, the Court intervened to modify the conclusion of the arbitrator concerning the indemnity equal to three (3) weeks of salary per year of service on the ground that it failed to take into account the employees’ duty to mitigate their damages and the indemnities already paid by the employer. Lastly, the Court set aside the arbitrator’s conclusion ordering the employer to pay $10,000 in damages to the union on the ground that a complaint alleging bad faith negotiations must be brought before the Tribunal administratif du travail (the Québec equivalent to a Labour Board). Comments In the context of the judicial review, Justice Tremblay considered that awarding moral damages fell within a range of reasonable outcomes and that there was no reason for the Superior Court to intervene. However, one must consider that a refusal of the arbitrator to award such damages could have also fell within that range of reasonable outcomes. The Évotech case involves the discretionary power of the grievance arbitrator to award moral damages to employees to remedy harm which may not be compensated in nature4. Although such damages have recently been awarded in the context of abusive dismissal5, the implementation of unfair and unreasonable working conditions for some employees6 or within the context of a breach of a collective agreement, as the time provided for notifying the union of any subcontracts7, awarding moral damages as a result of a sudden collective dismissal is a first. On June 12, the Court of Appeal allowed the motion for leave to appeal of the employer on the basis of two issues, namely, the interpretation of a section of the collective agreement and the power of the Superior Court to modify the conclusions of an arbitration award instead of setting the award aside8. Until the Court of Appeal issues its decision, employers will have to keep in mind that they could be liable for damages in case of closures without prior notice. We are carefully monitoring this case and will keep you informed of any developments. Peintures Industrielles Évotech c. Turmel, 2017 QCCS 1375, statement of appeal and motion for leave to appeal, 2017-05-05 (C.A.), 500-09-026780-171. Peintures Industrielles Évotech inc. c. Syndicat des employés de Sico inc., section Évotech (CSN) (union grievance | Hgjf8576), 2015 QCTA 809. Id., para 152. Droit de l’arbitrage de grief, 6e édition, Éditions Yvon Blais, 2012, para IX-34. Kugler c. IBM Canada Limited, 2016 QCCS 6576. Centre intégré universitaire de santé et de services sociaux du Nord-de-l’Île-de-Montréal c. Jobin, 2017 QCCS 1583. Syndicat canadien de la fonction publique, section locale 2881 et Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal (Centre de santé et de services sociaux de Dorval-Lachine-LaSalle) (griefs syndicaux), 2016 QCTA 893. Peintures industrielles Évotech c. Syndicat des employés de Sico inc. (CSN), section Évotech, 2017 QCCA 932.

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  • Global Skills Strategy – Latest Developments in Workforce Mobility

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

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  • Dividing up of certified bargaining units – The Québec Court of Appeal calls into question the automatic application of traditional criteria

    By way of two decisions 1 handed down jointly on May 8th of this year, the Québec Court of Appeal held that it is no longer appropriate to mechanically apply the existing analytical framework regarding the criteria for the division of a bargaining unit. Based on principles recently stated by the Supreme Court of Canada, the Court of Appeal held that the limits imposed by such criteria on employees’ freedom of choice, in violation of the fundamental right of freedom of association, may be unjustified and disproportionate in certain circumstances. This was indeed the conclusion of the Court of Appeal with regards to the appeals from two applications for judicial review of decisions rendered by the Commission des relations du travail (the “CRT”, Labour Relations Commission), in light of the decision in Mounted Police Association of Ontario v. Canada (Attorney General).2 The latter decision was rendered by the highest court in the country after judgment was reserved by the Superior Court of Québec on the judicial review cases referenced above. The Renaud-Bray Case In the case of Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB) CTC-FTQ c. Association syndicale des employés(es) de production et de services (ASEPS),3 the employees of bookseller Renaud-Bray’s Victoriaville store, who at the time were members of a broadly-defined bargaining unit which included nine other establishments, claimed to be inadequately represented by the appellant Union. They wished to be excluded from the broadly-defined unit and to join the respondent Association, in order to return to the separate unit that existed for their store prior to the merger of the certifications held by the Union in 2004. As grounds for their application, the employees cited the significant differences in economic and operational context as compared with the other stores in the existing unit, most of which were located in the metropolitan Montréal region. Deciding in this case on the application for judicial review, the Superior Court found that the CRT had erred by imposing on the Association the heavy burden of satisfying the criteria ordinarily applicable when dividing up a certified bargaining unit. It was not useful in the Court’s view to return the case to the CRT, and as such, it proceeded to certify the Association. In its reasons, the Court of Appeal applies the reasonableness standard and reviews the evolution of the scope of freedom of association as guaranteed by the Charters 4 and labour legislation,5 before taking stock of the more recent shift in the case law which favours a generous and purposive approach to the constitutional guarantee. In adopting the principles set out in the Mounted Police Association of Ontario case referred to above,6 the Court points out that freedom of association protects the right to join with others and form associations, which in turn includes the right of employees to choose what is in their interest and how they should pursue that interest. The Court then identifies the traditional criteria for dividing up a certified unit, which require the presence of serious grounds justifying a reversal of the presumption in favour of maintaining an existing bargaining unit and which, contrary to those criteria applicable to bargaining unit certification or merger applications, clearly set aside any consideration of employee preference. The Court further states that limits on the freedom of choice of employees with regards to bargaining units is inevitable, but that these limits can only restrict freedom of association in a proportionate and justified manner in the circumstances, so as to enable the adequate functioning of labour relations. Judging that in the case at hand, the customary criteria applicable to the division of a bargaining unit were applied disproportionately and unjustifiably, the Court of Appeal holds that the CRT’s decision is unreasonable on three grounds: (i) the CRT did not consider the question of the employees’ opposition to joining the broadly-defined unit in the first place, despite the fact that no assessment of the representative character of the applicant association at the time of the merger of the nine bargaining units was conducted, (ii) the CRT did not consider the history of the certifications with this employer, which revealed that with respect to this employer, each individual store generally represents the appropriate bargaining unit, and (iii) the CRT did not determine in what respect ensuring the stability of the existing bargaining unit or preserving industrial peace were considerations justifying its application of the traditional criteria, thus ignoring the employees’ clear preference. The Court of Appeal concludes by finding that the trial judge exceeded his jurisdiction, specifically in that he should have referred the case back to the Tribunal administratif du travail (the “TAT”, Administrative Labour Tribunal) rather than certify the Association directly. The Ville de Québec Case In the second case, Syndicat des juristes du secteur municipal (CSQ) c. Alliance des professionnels et professionnelles de la Ville de Québec, 7 the CRT had refused to divide the bargaining unit for professionals employed by the City of Québec, which would have enabled 30 jurists working for the City to be certified in a separate unit, as requested by same. The jurists claimed that their duties of professional conduct made it untenable for them to be grouped into a common unit with the other professionals working for the City, because they were consistently having to signal the omissions and faults of their colleagues to their employer, which placed them in a constant situation of conflict of interest. At the time, the CRT had applied the traditional criteria for dividing up a bargaining unit, without justifying this approach and without commenting on the dilemma in terms of professional conduct that resulted from the jurists’ duty of loyalty, limiting rather its short discussion to the issue of potential conflicts of interest. Moreover, the CRT did not deal with recent developments relating to the scope of the constitutional right to freedom of association or with the effects of same on the application of the traditional criteria for unit division. The Superior Court, sitting in judicial review, subsequently decided that the CRT’s decision was among the reasonable outcomes. The Court of Appeal, once again in a judgment written by the Honourable Justice Robert M. Mainville, takes note of these serious shortcomings in the CRT’s discussion. On the basis of the Supreme Court’s guidance, and repeating the grounds it cited in the Renaud-Bray case, the Court of Appeal holds that the initial decision was unreasonable and returns the case to the TAT so that it may evaluate the case while taking into consideration the evolution of the constitutional right to freedom of association. Lessons to be Drawn Over the coming months, it will be important to closely monitor the TAT’s position, while the Tribunal reassesses whether the presumption in favour of maintaining an existing bargaining unit and the exceptional nature of its division remain constitutionally acceptable in light of the broader reading of the right to freedom of association now adopted by the courts. More specifically, the TAT will have to decide whether recourse to the traditional analytical framework with respect to the division of bargaining units results in a disproportionate and unjustified restriction on employees’ freedom of choice, to such an extent that this limit is no longer necessary to ensure the adequate functioning of labour relations./p> It will be interesting to observe how the TAT answers this question, considering that the Court of Appeal specified that the Renaud-Bray decision was not to be interpreted as holding that the customary criteria will henceforth always be inapplicable, but rather that the lesson to draw from the decision is that such criteria may be inappropriate in certain circumstances and that [TRANSLATION] the mechanical application of the criteria [...] is not per se a justification for restricting employees’ freedom of association. We will keep you informed of developments in this respect. Syndicat des employées et employés professionnels-les et de bureau, section locale 574 (SEPB) CTC-FTQ c. Association syndicale des employés(es) de production et de services (ASEPS), 2017 QCCA 737 et Syndicat des juristes du secteur municipal (CSQ) c. Alliance des professionnels et professionnelles de la Ville de Québec, 2017 QCCA 736. [2015] 1 R.C.S. 3. See above, note 1. Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11, s. 2; Charter of Human Rights and Freedoms, C.Q.L.R. c. C-12, s. 3. Labour Code, C.Q.L.R. c. C-27, s. 3. See above, note 2. See above, note 1.

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  • 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.

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  • The new act to prohibit and prevent genetic discrimination

    On May 4, 2017, the Senate passed the Act to prohibit and prevent genetic discrimination (Genetic Non-Discrimination Act), which came into force on the same date. This Act also amended the Canada Labour Code and the Canadian Human Rights Act. The new Act aims to regulate the use of genetic tests, namely, tests that analyze the DNA1, RNA2 or chromosomes of a person for predictive or monitoring purposes or for establishing a diagnosis or prognosis, mainly within a contractual framework. It prohibits anyone from requiring an individual to undergo a genetic test as a condition of providing goods or services to that individual and entering into or continuing a contract or agreement (section 3). Furthermore, refusing to provide this individual with goods or services or enter into or continuing a contract with this person on the ground that he or she refused to undergo a genetic test or disclose the results thereof is prohibited (section 4). Finally, the new Act prohibits any person who carries out the contractual activities referred to in the Act from collecting, using or disclosing the results of a genetic test without the consent of the person who underwent it (section 5). These prohibitions do not apply to health care practitioners in respect of an individual undergoing the genetic test to whom they are providing health services or to persons who conduct medical, pharmaceutical or scientific research in respect of an individual who is a participant in the research. The Act creates penal offences and provides that every person who violates the above-mentioned sections 3 to 5 is liable to fines not exceeding one million dollars and imprisonment for a term not exceeding five years, depending on the nature of the proceedings chosen by the prosecuting party (indictment or summary proceedings). Amendments to the Canada Labour Code In Québec, the Canada Labour Code only applies to businesses under federal jurisdiction pursuant to the Constitution Act (1867). For businesses governed by this Code, the Genetic Non-Discrimination Act amends the Canada Labour Code to provide that no person may require an employee to undergo a genetic test or disclose the results of a genetic test he or she underwent, along with the corollary right of the employee to refuse to undergo a genetic test or to disclose the results thereof (sections 247.98(2) and (3) of the Code). The Canada Labour Code is further amended to prohibit an employer from dismissing, suspending, laying off or demoting an employee, imposing a financial penalty on him or her, or refusing to pay his or her remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights, have worked or taking any other disciplinary action against an employee or threaten to do so on the ground that he or she refused a request by the employer to undergo a genetic test, to disclose the results thereof or on the basis of the results of a genetic test undergone by the employee (section 247.98(4)). The amendments made to the Canada Labour Code do not directly prohibit an employer from refusing to hire an applicant on the ground that the applicant refused to undergo a genetic test or disclose the results thereof: this is covered by the amendments made by the Genetic Non-Discrimination Act to the Canadian Human Rights Act, which is discussed below. The amendments made to the Canada Labour Code further prohibit a third party from disclosing the existence or the results of genetic tests to the employer without the employee’s consent, in addition to prohibiting employers from collecting or using the results of a genetic test without the written consent of the employee who underwent the test. An employee can file a complaint with an inspector if he or she considers that his or her employer violated the new section 247.98 (4) of the Canada Labour Code. Following that, the inspector will convene a conciliation session to attempt to settle the complaint. If the conciliation fails, the complaint can be referred to an adjudicator, who then has jurisdiction to issue various orders of the same nature as those provided for under other provisions of the Canada Labour Code in the context of a dispute. The amendments to the Canadian Human Rights Act The Genetic Non-Discrimination Act adds “genetic characteristics” to the prohibited grounds of discrimination set out in section 3 of the Canadian Human Rights Act. Although this concept is not defined in the Act, the legislative summary regarding the passing of the Genetic Non-Discrimination Act indicates that “[g]enetic testing refers to the process of analyzing a person’s genes to identify specific traits or markers. These traits have been referred to as a person’s “genetic characteristics”. Furthermore, a provision is added to section 3 of the Canadian Human Rights Act whereby a distinction based on the refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, is deemed to constitute discrimination on the basis of one’s genetic characteristics. This addition to section 3 of the Canadian Human Rights Act will cover refusal to hire which, as noted above, is not specifically provided for in the amendments made to the Canada Labour Code. Conclusion The Act passed by the federal government aims to protect the public in light of the significant and increasingly rapid technological advances in the field of genomics. However, its scope is somewhat restricted since the Canada Labour Code only applies to federal businesses, while the application of the Canadian Human Rights Act is restricted to activities falling under federal jurisdiction in accordance with the Constitution Act (1867). The legislative summary mentions that the debates surrounding the passing of the Genetic Non-Discrimination Act raised many questions as to whether the legislation constituted a legitimate exercise of federal powers or whether the federal government was encroaching on the legislative authority of the provinces in respect of property and civil rights. Accordingly, it is possible that proceedings will be instituted, seeking to have portions or even the entirety of the Genetic Non-Discrimination Act declared unconstitutional.3 However, such debates should not affect the constitutionality of the amendments to the Canada Labour Code and the Canadian Human Rights Act, which only apply to businesses under federal jurisdiction. Deoxyribonucleic acid. Ribonucleic acid. A notice was published stated that “a reference to the Court of Appeal would provide the Court with an opinion on the constitutionality of the law on non-discrimination in genetics”.

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  • When artificial intelligence is discriminatory

    Artificial intelligence has undergone significant developments in the last few years, particularly in respect of what is now known as deep learning.1 This method is the extension of the neural networks which have been used for a few years for machine learning. Deep learning, as any other form of machine learning, requires that the artificial intelligence system be placed before various situations in order to react to situations which are similar to previous experiences. In the context of business, artificial intelligence systems are used, among other things, to serve the needs of customers, either directly or by supporting employees interventions. The quality of the services that the business provides is therefore increasingly dependent on the quality of these artificial intelligence systems. However, one must not make the mistake of assuming that such a computer system will automatically perform its tasks flawlessly and in compliance with the values of the business or its customers. For instance, researchers at the Carnegie Mellon University recently demonstrated that a system for presenting targeted advertising to Internet users systematically offered less well-paid positions to women than to men.2In other words, this system behaved in what could be called a sexist way. Although the researchers could not pinpoint the origin of the problem, they were of the view that it was probably a case of loss of control by the advertising placement services supplier over its automated system and they noted the inherent risks of large-scale artificial intelligence systems. Various artificial intelligence systems have had similar failures in the past, demonstrating racist behaviour, even to the point of forcing an operator to suspend access to its system.3 In this respect, the European Union passed in April 2016 a regulation pertaining to the processing of personal information which, except in some specific cases, prohibits automated decisions based on some personal data, including the “racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation […]”.4 Some researchers wonder about the application of this regulation, particularly as discrimination appears in an incidental manner, without the operator of the artificial intelligence system intending it.5 In Québec, it is reasonable to believe that a business which would use an artificial intelligence system that would act in a discriminatory manner within the meaning of the Charter of Human Rights and Freedoms would be exposed to legal action even in the absence of a specific regulation such as that of the European Union. Indeed, the person responsible for an item of property such as an artificial intelligence system could incur liability in respect of the harm or damage caused by the autonomous action of such item of property. Furthermore, the failure to having put in place reasonable measures to avoid discrimination would most probably be taken into account in the legal analysis of such a situation. Accordingly, special vigilance is required when the operation of an artificial intelligence system relies on data already accumulated within the business, data from third parties (particularly what is often referred to as big data), or when the data will be fed to the artificial intelligence system by employees of the business or its users during the course of a “learning” period. All these data sources, which incidentally are subject to obligations under privacy laws, may be biased at various degrees. The effects of biased sampling are neither new nor are they restricted to the respect of human rights. It is a phenomenon which is well-known by statisticians. During the WW II, the U.S. Navy asked a mathematician named Abraham Wald to provide them with statistics on the parts of bomber planes which had been most hit for the purpose of determining what areas of these planes should be reinforced. Wald demonstrated that the data on the planes returning from missions was biased, as it did not take into account the planes that were taken down during these missions. The areas damaged on the returning planes did not need to be reinforced, rather the places which were not hit were the one that had to be. In the context of the operation of a business, an artificial intelligence system to which biased data is fed may thus make erroneous decisions – with disastrous consequences for the business on a human, economic and operation point of view. For instance, if an artificial intelligence system undergoes learning sessions conducted by employees of the business, their behaviour will undoubtedly be reflected in the system’s own subsequent behaviour. This may be apparent in the judgments made by the artificial intelligence system in respect of customer requests, but also directly in its capacity to adequately solve the technical problems submitted to it. Therefore, there is the risk of perpetuating the problematic behaviour of some employees. Researchers of the Machine Intelligence Research Institute have proposed various approaches to minimize the risks and make the machine learning of artificial intelligence systems consistent with its operator’s interests.6 According to these researchers, it would certainly be appropriate to adopt a prudent approach as to the objectives imposed on such systems in order to avoid them providing extreme or undesirable solutions. Moreover, it would be important to establish informed supervision procedures, through which the operator may ascertain that the artificial intelligence system performs, as a whole, in a manner consistent with expectations. From the foregoing, it must be noted that a business wishing to integrate an artificial intelligence system in its operations must take very seriously the implementation phase, during which the system will “learn” what is expected of it. It will be important to have in-depth discussions with the supplier on the operation and performance of his technology and to express as clearly as possible in a contract the expectations of the business as to the system to be implemented. The implementation of the artificial intelligence system in the business must be carefully planned and such implementation must be assigned to trustworthy employees and consultants who possess a high level of competence with respect to the relevant tasks. As to the supplier of the artificial intelligence system, it must be ensured that the data provided to him is not biased, inaccurate or otherwise defective, in such a way that the objectives set out in the contract as to the expected performance of the system may reasonably be reached, thus minimizing the risk of litigation arising from discriminatory or otherwise objectionable behaviour of the artificial intelligence system. Not only such litigation can be expensive, it could also harm the reputation of both the supplier and its customer. LeCun, Y., Bengio, Y., & Hinton, G. (2015). Deep learning. Nature, 521(7553), 436-444. Datta, A., Sen, S., & Zick, Y. (2016, May). Algorithmic transparency via quantitative input influence: Theory and experiments with learning systems. In Security and Privacy (SP), 2016 IEEE Symposium on (pp. 598-617). IEEE; Datta, A., Tschantz, M. C., & Datta, A. (2015). Also see: Automated experiments on ad privacy settings. Proceedings on Privacy Enhancing Technologies, 2015(1), 92-112. Reese, H. (2016). Top 10 AI failures of 2016. The case of Tay, Microsoft’s system, has been much discussed in the media. Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). Goodman, B., & Flaxman, S. (2016, June). EU regulations on algorithmic decision-making and a “right to explanation”. In ICML Workshop on Human Interpretability in Machine Learning (WHI 2016). Taylor, J., Yudkowsky, E., LaVictoire, P., & Critch, A. (2016). Alignment for advanced machine learning systems . Technical Report 20161, MIRI.

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

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

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

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

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  • Social media: when the court declares the evidence inadmissible

    Social media sites, like Facebook, are inexhaustible sources of personal information which can constitute evidence in the context of employer-employee disputes. In matters related to evidence, the general rule is that any relevant evidence is admissible.1 Moreover, the courts have ruled that an excerpt from a Facebook page is admissible into evidence, provided that it has not undergone [translation] “severe editing” which would alter its essence or prevent opposing party from contradicting it.2 However, the courts must set aside such evidence, even on their own initiative, when the following two criteria are met:3 There is a breach of fundamental rights and liberties;4 and Using such evidence may bring the administration of justice into disrepute. In what contexts have tribunals specialized in labour law decided to set aside evidence taken from a Facebook page? The fake social profile In 2012, in the case of Campeau c. Services alimentaires Delta Dailyfood Canada inc.,5 the Commission des lésions corporelles (“CLP”) ruled on the admissibility of excerpts from a private Facebook page in the context of the contestation by an employee of several decisions of the Commission de la santé et de la sécurité du travail (“CSST”) regarding an employment injury. In this case, the CLP refused to admit these excerpts as evidence since the employer had no serious reasons for questioning the employee’s honesty and in fact, obtained access to her private Facebook page by creating a fake social media profile which contained information intended to entice the employee into accepting a fake friendship request. In fact, the employer had created a false profile especially designed to capture the employee’s attention: work with the Cirque du Soleil, studies at the same university and similar artistic preferences. The CLP refused to take into consideration the employer’s evidence obtained through social networks for the following reasons: The use of a fraudulent scheme by the employer to access the Facebook page constituted an illicit and serious breach of the employee’s right to privacy; and The impossibility of obtaining this information legally (private profile which was not available for access by the employer), combined with the absence of prior serious doubts as to the employee’s honesty which would justify the employer in acting as it did, would have brought the administration of justice into disrepute. The CLP further concluded that the employer’s actions constituted an unrestrained incursion into the employee’s private life and it could not grant carte blanche for such spying. Involvement of a third party In 2016, in the case of Maison St-Patrice inc. et Cusson6, the Tribunal administratif du travail (“TAT”) refused to admit into evidence excerpts from the Facebook profile of an employee filed by the employer. The employee had a Facebook account which was restricted by privacy protection parameters and exercised active control over the visibility of her posts. However, the employer had succeeded in obtaining excerpts from this private account through an unidentified third party, possibly a colleague and “Facebook friend” of the employee, which the TAT concluded was subterfuge. The employee further testified to the effect that it was not the first time the employer had committed unjustified breaches of the privacy rights of its employees. Indeed, she had herself been asked by the employer to disclose the contents of the Facebook profile of a work colleague to which she had access. The TAT concluded that the employer had seriously breached the employee’s privacy, without a real interest or serious purpose for doing so, in hopes of possibly uncovering a lack of honesty. In order to act in this manner, the employer’s breach of the employee’s privacy should have been justified by rational, serious and necessary reasons, which was not the case. Furthermore, the employer could not use subterfuge to obtain information found in the private social profile of the employee. Since the illegally obtained evidence brought the administration of justice into disrepute, it could not be accepted by the tribunal. Conclusion Although it may sometimes seem appropriate for an employer to check the posts of its employees on social networks, some information obtained may be inadmissible as evidence before a tribunal. As in the case of surveillance, employers should ensure that, before they take actions which may constitute a breach of their employees’ privacy rights, that they have serious reasons for questioning their sincerity and honesty and avoid conducting systematic or random verifications. Furthermore, the creation of fake profiles, involving a third party and the use of other ruses or deceptive strategies to obtain confidential information without sufficient reasons may be very viewed poorly by tribunals, resulting in their refusal to consider evidence collected in such a manner. Civil Code of Québec, art. 2857, hereinafter “CCQ”. Particularly see on this subject: Landry et Provigo Québec Inc. (Maxi & Cie), 2011 QCCLP 1802, para 44-48. CCQ, art. 2858 ; Act respecting administrative justice, CQLR c. J-3, art. 11. What is most often breached is the right to privacy: Canadian Charter of Rights and Freedoms, Part I of the The Constitution Act, 1982 [Schedule B to the Canada Act 1982 (UK), 1982, c. 11 sec. 7, 8 and 24; Charter of Human Rights and Freedoms, CQLR, c. C-12, sec. 5 and 9.1. 2012 QCCLP 7666. 2016 QCTAT 482.

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