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  • CNESST – Transfer of Costs Under Section 326 of the Act Respecting Industrial Accidents and Occupational Diseases: Important Decision from the Tribunal

    Employers subject to the personalized rate or retrospective rate regime know how important it is to control the costs related to occupational injury cases in order to limit the impact on their annual premiums. One way to attain this objective is to apply for a transfer of costs under section 326 of the Act Respecting Industrial Accidents and Occupational Diseases. Indeed, the CNESST may, “on its own initiative or on the application of an employer, impute the cost of benefits payable by reason of an industrial accident to the employers of one, several or all units if the imputation under the first paragraph would have the effect of causing an employer to support unduly the cost of benefits due by reason of an industrial accident imputable to a third person or unduly burdening an employer.” Traditionally, in cases involving the undue burdening of an employer, the CNESST would not process applications for transfers of costs under section 326 as long as the end date of the transfer period remained unknown. This could be detrimental to an employer’s cash flow, especially if the application remained unprocessed and the situation continued to exist over several months, even worse, for years. The recent Corporation d’Urgences-santé1 decision could, in certain circumstances, provide employers with a tool to convince the CNESST to render decisions without an end date for the transfer period. In this file, where Lavery Lawyers represented the employer, the worker could not be temporarily assigned to light duties because of his caregiver status. At the time of the hearing, the employee was still acting as a caregiver and the Tribunal was not in a position to know when the impediment might end. When asked to rule on its jurisdiction and powers, the Tribunal accepted our proposal that the transfer be granted, but that it remains the CNESST’s responsibility to determine the end date of the transfer period. The tribunal ruled that such date ultimately corresponds to the date on which the worker ceases to be incapable of undergoing temporary light-duty assignment due to his caregiver status.   Thus, in its decision, the Tribunal recognizes the employer’s right to benefit from a transfer of costs since January 1, 2022, as a result of the employee’s caregiver status. This allows the employer to reduce immediately its financial burden up and until the CNESST renders a decision to establish the date of the occurrence of the event giving rise to the end of the transfer. This is the first decision to be rendered on the issue. It opens the door to a number of possibilities, including requiring the CNESST to make a ruling on a cost transfer application before the full transfer period can be determined. However, this type of application with the CNESST will require case-by-case analysis, as certain conditions must be met for the application to be admissible.  If you are dealing with a similar situation requiring special attention, do not hesitate to contact a member of our labour law department specializing in workers’ compensation matters. They will be able to assist you with any questions relating to the management of these cases, whether or not they are the object of litigation. 2022 QCTAT 4634

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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).

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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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  • Managing Employment Injuries in the Age of COVID‑19

    The management of employment injury claims has not halted due to the current pandemic. Not only are new employment injuries taking place and claims being filed, ongoing claims are still being processed.  Managers must be vigilant in order to limit the financial impact of the pandemic with respect to employment injury claims. They can act in one of two (2) ways: Investigating the circumstances in which the worker contracted COVID-19 in order to determine whether it can be considered an employment injury; Monitoring employment injury cases to identify the impact of the pandemic on the way cases are treated to then try to obtain a reduction in financial consequences for the employer by an assignment of costs. Can COVID-19 be considered an employment injury? Although a worker infected with COVID-19 is at liberty to file an employment injury claim, they are responsible for proving that they contracted the disease or came into contact with the virus due to or in the course of their work. According to the current laws and jurisprudence, a COVID-19 diagnosis does not trigger the application of any legal presumption facilitating the acceptance of a worker’s claim under either the category of occupational disease or that of industrial accident. Helpful tip: If one of your employees has contracted COVID-19, investigate the origin of the infection. Ask the following questions and document the answers you receive: Has the worker travelled recently? Where and when? When did they return from abroad? Has one of their loved ones recently been diagnosed with COVID-19? Have one or more colleagues, clients or business partners contracted the disease? What symptoms did they experience, and when did they begin experiencing them? What was their schedule and who did they work with in the days before they began experiencing symptoms? Why do they believe they contracted the disease at work? What hygiene, preventive and protective measures and distancing did they use in the workplace? Can employers apply for an assignment of costs due to COVID-19? In terms of employment injuries, the pandemic can have many consequences, such as treatments and temporary assignments of work being temporarily interrupted and medical assessments and examinations by the Bureau d’évaluation médicale (BEM) being cancelled or postponed for an indefinite period. This situation will inevitably prolong the period during which employment injury benefits are paid, potentially significantly in some cases. Employers could apply for an assignment of costs for these claims in order to reduce the financial impact of the pandemic by demonstrating, for example, that the treatments necessary to consolidate the worker’s injury were suspended due to the pandemic, delaying consolidation or increasing the consequences o permanent impairment. A pandemic the size of COVID-19 is probably very much outside the scope of risks most employers generally have to face. When applying for an assignment of costs due to “undue burden”1, the employer will need to demonstrate that the consequences stemming from the pandemic such as delayed consolidation or more substantial permanent consequences represent a significant proportion of the costs attributable to the employment injury.  Helpful tips: If you have workers who are currently receiving income replacement benefits, find out whether their treatments or medical care have been interrupted due to the pandemic, if they have had medical or surgical appointments cancelled, etc. Document this information. The impact of these events on the cost of the claim can be documented retrospectively. Keep in mind, however, that applications for an assignment of costs due to “undue burden” must be submitted within the time limit established by law, as interpreted by jurisprudence2. The members of our Labour and Employment team are available to answer any questions you may have about occupational health and safety measures you are considering or the solutions you are seeking given the realities of your organization and its activities.   Section 326 of the Act respecting Industrial Accidents and Occupational Diseases (“AIAOD”). Section 326 of the AIAOD states that the application must be made in writing within the year following “the date of the accident”, and must include an explanation of the reasons for the application. However, the Court of Appeal has interpreted this time limit as being able to start from the day the right to the exception begins in Commission de la santé et de la sécurité du travail v. 9069-4654 Québec inc., 2018 QCCA 95 (known as the “Supervac 2000” case), as has the majority of the Tribunal administratif du travail jurisprudence that followed.

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  • Dr. Robot at your service: artificial intelligence in healthcare

    Artificial intelligence technologies are extremely promising in healthcare.1 By examining, cross-referencing and comparing a phenomenal amount of data,2 AI lets researchers work more quickly at a lower cost3 and facilitates doctors’ decision-making with regard to diagnosis, treatment and choice of prescription. The integration of AI into the healthcare field can take various forms:4 Management of electronic medical records (e.g., Omnimed) Direct patient care to improve decision-making with regard to diagnosis, prognosis and choice of treatment method Integration in the area of monitoring and medication (e.g., Dispill) The performance of robotic exams and surgeries Indirect patient care functions, such as: Optimization of workflow Better management of hospital inventory Home care applications, where portable devices and sensors would be used to assess and predict patient needs. Working to protect innovators, their clients and the public No matter what form AI takes when it is implemented into the healthcare field in Quebec, as with any innovation, we must adapt and work to protect the public, innovators and their clients. What is an innovator? An innovator is a developer, provider or distributor who is involved in the development and marketing of products that use artificial intelligence. 1 - Innovator protection As the future of healthcare lies in an increased integration of AI, innovators must be properly supported and protected, which means that they must be equipped with all of the appropriate tools for protecting their rights, especially intellectual property rights. At the time of product development: they must make sure that they obtain the necessary guarantees and commitments from their partners in order to be able to assert their rights in the event that their technology is appropriated by a third party.  At the time of product marketing: having taken care to properly protect their rights, they will avoid prosecution or claims, whether for patent infringement or otherwise. In addition, if the proposed technological solution implies that the data collected, transmitted or analyzed is stored and pooled or that it is shared with other stakeholders, innovators must ensure in particular that the patients’ personal information is protected in accordance with the applicable laws and regulations5 and that this data is not used for commercial purposes. If not, an innovator could be the target of a claim by professional organizations or by patient groups and, when certification is required, that certification could be withdrawn by the Ministère de la Santé et des Services sociaux [health and human services ministry]. To learn more about innovator protection, we invite you to read the following article: Artificial intelligence: contractual obligations beyond the buzzwords. 2 - Protection of clients (buyers of artificial intelligence solutions) Artificial intelligence operations have several intrinsic limits, including the prioritization of quantity over quality of the data collected; systematic errors that are reproduced or amplified;6 and even human error in the entry of the data relied on by professionals and researchers. Accordingly, innovators must ensure that they properly warn their clients of the limits and risks tied to the use of their products in order to protect themselves against potential claims. They must therefore be objective in the way that they represent their products. For example, terms like “intelligent database” should be used rather than “diagnostic systems.” This word choice will avoid both potential civil liability claims and the possibility of being reprimanded for violating the Medical Act for performing functions reserved only for doctors.7 The innovator will also be required to enter into a contract with the client that is clear and detailed with regard to the use, access and sharing of data collected in electronic medical records (EMR). 3 - Protection of the public (Collège des médecins du Québec [“Quebec college of physicians”] regulation) All products using AI technology must allow doctors to respect their obligations with regard to creating and maintaining EMR. These obligations are included in Section 9 of the Collège des médecins draft regulation, which is expected to come into force in the near future and will make the use of EMR mandatory. The Collège also intends to specify in this regulation that collected data may not be used [TRANSLATION] “for any purpose other than to monitor and treat patients.”8 The Inquiries Division of the Collège has also recently cautioned its members that the technological tools that they use [TRANSLATION] “must be used exclusively within the context of their duties, meaning the administration of care.”9 The current position of the Collège des médecins and the Ministère de la Santé is that the marketing of data contained in EMR is prohibited even if the data is anonymous. Furthermore, according to Dr. Yves Robert, Secretary of the Collège, even if the shared data is anonymous, it may not be used either to promote a product, such as a less expensive medication in the case of an insurance company, or to influence a doctor’s choice when making a decision. 10 The Inquiries Division has also reminded members of their ethical obligation to “disregard any intervention by a third party which could influence the performance of their professional duties to the detriment of their patient, a group of individuals or a population.11”   The use of Big Data would create more than $300 billion USD in value, with two-thirds of that amount coming from reduced expenditures.  Big Data Analytics in Healthcare, BioMed Research International, vol. 2015, Article ID 370194; see also Top health industry issues of 2018, PwC Health Research Institute, p. 29. The American consortium Kaiser Permanente holds around 30 petabytes of data, or 30 million gigabytes, and collects 2 terabytes daily. Mining Electronic Records for Revealing Health Data, New York Times, January 14, 2013. For examples of the integration of AI in healthcare in Canada, see Challenge Ahead: Integrating Robotics, Artificial Intelligence and 3D Printing Technologies into Canada’s Healthcare Systems , October 2017. See in particular S. 20 of the Code of ethics of physicians, CQLR c. M-9, r. 17 and the Act respecting the protection of personal information in the private sector, CQLR c P-39. See When artificial intelligence is discriminatory. Medical Act, CQLR c. M-9, s. 31. Id., S. 9, par. 9. L’accès au dossier médical électronique : exclusivement pour un usage professionnel [“Access to medical records: exclusively for professional use”], Inquiries Division of the Collège des médecins du Québec, February 13, 2018. Marie-Claude Malboeuf, “Dossiers médicaux à vendre ” [“Medical records for sale”], La, March 2, 2018. Accès au dossier médical électronique par les fournisseurs [“Access to electronic medical records by providers”], Inquiries Division of the Collège des médecins du Québec, May 29, 2017, citing section 64 of the Code of Ethics of Physicians, supra, note 12.

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  • Confinement in an establishment: establishments must exercise caution before making an application

    In a decision rendered on March 13, 20181, the Court of Appeal reiterated that caution is in order when making an application for confinement. The Court also took the opportunity to review the topic of confinement orders and the supervision and safety requirements that healthcare establishments have towards their users. The Court of Appeal’s reasoning is based on the following elements: where two doctors conclude on the need for confinement in an establishment, the user cannot be kept without his or her consent or the Court’s authorization for more than 48 hours; the hospital’s decision to make an application for confinement in an establishment does not constitute a simple blind or purely mechanical application of the conclusions presented in the psychiatric examinations conducted by the psychiatrists. It is the responsibility of the healthcare establishment in question to verify whether the legal obligations have been met prior to initiating the legal proceedings. Accordingly, the establishment must act with caution and transparency throughout this type of process, since the basic rights of the user subject to an application for confinement are at stake; the Civil Code of Québec, the Code of Civil Procedure and the Act Respecting the Protection of Persons Whose Mental State Presents a Danger to Themselves or to Others2impose very specific and strict provisions that must be complied with in connection with an application for confinement in an establishment; the establishment may likely be held liable if it neglects to verify and control compliance with the requisite conditions for confinement; failure to verify whether the two psychiatric examinations justifying the application for confinement comply with the legal requirements may also potentially engage the establishment’s civil liability; any incident or accident must be declared in good and due form in accordance with the Act respecting health services and social services3 to determine whether the establishment fulfilled its supervision and safety obligations as regards its confined users. It is therefore important to remember that healthcare establishments are obliged to demonstrate caution, transparency and verification when making an application for confinement and preparing such an application. G.D. v. Sir Mortimer B. Davis Jewish General Hospital, 2018 QCCA 379. CQLR, c. P-38.001. CQLR, c. S-4.2, Sec. 8 par.2 and 233.1.

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  • Itemized invoices: a new obligation for pharmacists

    Since September 15, 2017, pharmacists have been obliged to provide itemized invoices not just to their clients but also to third parties such as insurers who are involved in the process of paying the cost of drugs. In response to this new obligation, the Association québécoise des pharmaciens propriétaires (“AQPP”) petitioned the Superior Court of Quebec in an attempt to limit the distribution of itemized invoices only to individuals who are their customers. On February 26, 2018, the Court rejected each of the arguments made by the AQPP.1 New obligation On December 7, 2016, Bill 92, whose purpose was to extend the powers of the Régie de l’assurance maladie du Québec and to amend various legislative provisions,2 was passed. Another goal of this legislation was to amend the Act respecting prescription drug insurance3(“APDI”) and introduce section 8.1.1, which now requires owner pharmacists to provide an itemized invoice to the person paying when a prescription drug is sold or a pharmaceutical service is provided. The invoice must provide an itemized list of the following: -       The pharmacist’s professional fees for every service provided; -       The price paid by the basic plan for every medication or product supplied; -       The wholesaler’s profit margin; -       Any other information required by the relevant regulations. Pharmacists or wholesalers who violate this new provision face a fine of between $2,500 and $25,000.4 Consequences for individuals with private prescription drug insurance Controlling the cost of prescription drugs is a major issue when it comes to ensuring the sustainability of publicly funded prescription drug plans. This is why the Minister of Health and Social Services negotiates the prices and terms for prescription drugs and pharmaceutical supplies and services, based on the recommendations of the Régie de l’assurance maladie du Québec (“RAMQ”). The Minister is also responsible for negotiating with the AQPP to determine the fees that may be charged to patients covered by the public plan. There is also a regulation5 that requires pharmacists to provide the RAMQ with other information, including the cost of professional fees, when they request payment for a patient insured under the public plan.6 However, there is no similar oversight in respect of the fees that may be charged to individuals who have private prescription drug insurance, meaning that pharmacists have the discretion to charge fees that are different  from those negotiated by the Minister. These fees are added to the cost of the drugs. Positions of the parties The parties do not agree on the extent of pharmacists’ obligations regarding the itemized invoices. In the opinion of the AQPP, the obligation applies only to individuals (customers) who arrange for their own pharmaceutical services and does not include the insurers who pay. Meanwhile, the RAMQ believes that insurers that are required to pay must also be given a copy of the itemized invoices. The decision The Court did not agree with the AQPP’s arguments. In order to interpret section 8.1.1 APDI, the Court first examined the ordinary and grammatical meaning of the text and concluded that there was no difficulty, in the context of the provision requiring that itemized invoices be provided, in extending the obligation of pharmacists to include corporate persons. The Court rejected the AQPP’s second argument, which was that an insurance policy is a contract between the insurer and the client to which the pharmacist is not a party. A more thorough analysis of how insurance policies are applied, and how the claims made by pharmacists to third party payers work, may be more complex, since a client may believe that he or she is paying a portion of the invoice and the insurer is paying the other part. The Court then analyzed the object, spirit and purpose of the Act, recalling that the APDI is public social policy legislation, the purpose of which is to provide Quebeckers with reasonable and fair access to medications. More specifically, the aim of section 8.1.1 is to provide greater transparency so that payers are informed of the cost of medications and are then able to shop by comparing prices. The competition generated by this new provision means that in broad terms, it is easier to control costs, which is also beneficial for the viability of the prescription drug insurance plan. In the opinion of the Court, the transparency sought would be more likely to be achieved if more rather than fewer people received invoices, which is intrinsically more compatible with the purpose of the APDI. Finally, the Court considered the intention of the legislature by examining the legislative debates. In its opinion, there was no doubt as to the intention underlying the amendment, since the objectives of transparency, openness to competition and cost control were expressly stated in some of the remarks of the Minister of Health and Social Services during the consideration of Bill 92.7 The Court held that the new section 8.1.1 confirms the intention of the legislature to mandate that itemized invoices be provided to insurers that cover a portion of the payment, to enable them to perform a more effective cost comparison than an individual could. Conclusion Pharmacists must comply with section 8.1.1 APDI and provide members of the public, insurers and third-party payers with itemized invoices. Any failure to do so means that they will face fines.8 However, the debate is not over, because the AQPP has appealed this decision.9 Lavery will be watching this case closely and will keep you informed of developments.   Association québécoise des pharmaciens propriétaires v. Régie de l’assurance maladie du Québec, 2018 QCCS 806. An Act to extend the powers of the Régie de  l’assurance maladie du Québec, regulate commercial practices relating to prescription drugs and protect access to voluntary  termination of pregnancy services, Bill 92 (Assented to on December 7, 2016), 1st Sess., 41st Leg. (QC). CQLR c. A-29. Section 80.5 APDI. Regulation respecting forms and statements of fees under the Health Insurance Act, CQLR, c. A-29, r. 7. Id. s. 9. Supra, note 2. Supra, note 4. Association québécoise des pharmaciens propriétaires v. Régie de l'assurance maladie du Québec, 2018 QCCS 806, application for leave to appeal de bene esse, April 3, 2018, n°200-09-009737-187.  

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  • Freedom of association of physicians practising at a specialized medical centre: the Supreme Court of Canada declines to intervene

    On February 8, 2019, the Supreme Court of Canada dismissed the application by the Fédération des médecins spécialistes du Québec for leave to appeal from the judgment of the Court of Appeal of Quebec1 in a case concerning the freedom of association of physicians practising at a specialized medical centre (“SMC”). In that decision, dated June 1, 2017, the Court of Appeal unanimously concluded that physicians’ right to associate was not violated by section 333.3 of the Act respecting health services and social services2 (“AHSSS”). The effect of that section is to prevent participating and non-participating physicians under Quebec’s public health insurance plan from practising together at an SMC. In accordance with its usual practice, the Supreme Court stated no reasons in its judgment on the leave application. However, based on that decision, the decision of the Court of Appeal can now be said to be settled law on this point. At this point, the law is clear on the question of physicians’ freedom of association: it is not absolute and physicians’ practice at SMCs remains subject to the statutory constraints imposed by the AHSSS. We would note that the applicants claimed that the restrictions imposed by the section in question and the provisions adopted under it infringed their fundamental rights and freedoms and should be declared to be unconstitutional. More specifically, the applicants argued that their right of association and their right to choose their colleagues were violated by those provisions. It must be noted that section 333.3 of the AHSSS provides that an SMC may be operated in only two forms: either exclusively by physicians who participate in the health insurance plan and are paid under the agreement entered into pursuant to section 19 of the Health Insurance Act3 or only by physicians who do not participate in that plan. The result is that participating physicians may not offer their services at an SMC where non-participating physicians practise. At trial, the Superior Court4 had concluded that the practice of medicine at an SMC was not protected by freedom of association. [TRANSLATION] [102] The guarantee of freedom of association given to members of a profession is not jeopardized by the mere fact that they are regulated by a statutory scheme. Physicians are free to join together, but they simply do not have the constitutional right to do so without being subject to the restrictions on SMCs established by the AHSSS. The Superior Court had further found that the effect of section 333.3 of the AHSSS is to regulate the SMC’s operating activity and not to prohibit, prevent or interfere with the formation of an association. Accordingly, a person cannot claim a constitutional right to do a job the way he or she wishes, outside of any organized framework; that is not protected by the charters. A physician may therefore not claim the right to create business relationships with the persons of his or her choice, for that reason. The Court of Appeal adopted the same position. As had the Superior Court, the Court of Appeal held: [TRANSLATION] [35] The appellants may not rely on freedom of association to claim absolute and unconditional freedom to associate as they choose and to practise medicine on the terms that suit them, on the ground that they want to practise medicine with others ….5 The Court of Appeal therefore adopted the reasons stated by the trial judge and unanimously held that the impugned provisions did not violate freedom of association. Physicians may choose their status and associate for the purpose of practising medicine on the terms set out in section 333.3 of the AHSSS but may not claim a constitutional right to do so as they wish.   Fédération des médecins spécialistes du Québec v. Bolduc 2017 QCCA 860 CQLR, c. S-4.2 CQLR, c. A-29 Fédération des médecins spécialistes du Québec v. Bolduc 2015 QCCS 2680 Supra, note 1    

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  • Caron confirms that employers have a duty to accommodate workers with an employment injury

    On February 1, 2018, the Supreme Court of Canada rendered an important decision in Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) v. Caron1 (“Caron”), confirming the position expressed by the Court of Appeal in 20152 as well as the state of the law regarding the employer’s duty to accommodate  where a worker has suffered an employment injury. Quebec employers must therefore engage in the process of reasonable accommodation , in accordance with the provisions of the Charter of Human Rights and Freedoms3 (the “Charter”) up to the point of undue hardship, whether it be in the context of a worker exercising his right to return to work or seeking suitable employment following an employment injury. WHAT ARE THE MAIN CHANGES RESULTING FROM THE DECISION? As drafted, the Act respecting industrial accidents and occupational diseases4 (the “AIAOD”) does not explicitly state that employers have a duty to accommodate a worker who has suffered an employment injury at work. That being said, the case law on accommodation, as it has developed in recent years,imposes a duty on all employers to take the initiative to reasonably accommodate a worker who is disabled within the meaning of the Charter, which is clearly the case for a worker with functional limitations following an employment injury. Prior to the Court of Appeal’s decision in June 2015, the case law held that the rehabilitation measures under the AIAOD were, in and of themselves, an accommodation measure and neither the Commission de la santé et de la sécurité du travail(now the CNESST) or the Commission des lésions professionnelles (now the Tribunal administratif du travail (“TAT”)) were of the view that they had the authority to impose, recommend or suggest any form of accommodation to an employer. Consequently, they refused to apply the provisions of the AIAOD in light of the Charter. In order to ensure that a worker with a disability caused by an employment injury is not disadvantaged as compared with a worker with a pdisability caused by a personal condition, the Supreme Court of Canada confirmed that the implementation of the employer’s duty to accommodate must go beyond merely applying the provisions of the AIAOD and that the obligations imposed by the Charter must also be taken into consideration. HOW DOES THIS AFFECT EMPLOYERS? Caron will most likely change the way all participants (including the CNESST, employers, workers and their unions) will approach the process of finding suitable employment. For employers who have not already changed their practices following the Court of Appeal’s decision, the main consequences of the Supreme Court of Canada decision can be summarized as follows: Employers must try to reasonably accommodate a worker whose employment injury resulted in functional limitations and cannot limit themselves to simply claiming that there is no suitable employment available within the business. The CNESST and the TAT have the power to verify whether an employer tried to find an accommodation, before or after identifying suitable employment, in the context of applying the AIAOD. The duty to accommodate does not require that the employer fundamentally modify a worker’s employment conditions or create a customized position. However, the employer must make an actual effort to reinstate the worker in the business and, where necessary, reasonably accommodate, or even rearrange the worker’s tasks so that the worker can perform his or her duties, without undue hardship. Since the duty to accommodate must be assessed in light of the global situation. The one or two-year period, as the case may be, during which a worker may exercise the right to return to work under s. 240 of the AIAOD is nothing more than another factor to be considered, without being determinative.  According to the teachings of the Supreme Court of Canada regarding reasonable accommodation, employers cannot refuse to allow a worker to occupy suitable employment in their establishment based solely on an automatic application of s. 240, relying on the expiry of the time period within which the worker has to exercise the right to return to work.  In every case, employers must instead be able to establish that they tried to accommodate the worker with functional limitations. Should the TAT conclude that an employer’s claim that it has no suitable employment to offer a worker unlawfully interferes with a Charter right, it could exercise its remedial powers thereunder, which includes the power to impose accommodation measures on the employer or condemn it to pay the worker moral or punitive damages.  COMMENTS The Supreme Court of Canada has clearly set out the obligations of employers under the AIAOD applied in accordance with the Charter, and called upon employers to revise their management practices in employment injury files. As such, the process of finding suitable employment may become more complex and delicate for all parties involved because a full search is required. Employers should be able to establish that they actively sought a reasonable accommodation before they can claim that there is no suitable employment within their business for one of their workers with functional limitations. It will therefore be very useful, if not essential, for employers to keep a careful record of any steps taken in this regard. Workers and their unions will also have a duty to cooperate in searching for suitable employment. If employers have a duty to accommodate, workers have a corollary duty to accept any reasonable accommodation proposed. It will also be interesting to see how this decision will be applied by the CNESST and the TAT. Lavery will keep you informed of any significant development in this regard.   2018 SCC 3. 2015 QCCA 1048. CQLR, c C-12. CQLR, c A-3.001.

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  • Employers and emergency call centre workers: your liability for property damage is limited

    In May 12, 2017, the Court of Québec1 concluded that an emergency call centre had no liability for property damage caused by first responders who broke down the door of a residence in order to assist a user in respiratory distress. In this case, the Court held that a call centre who required the intervention of a first responders service cannot be held liable for damages caused during the ensuing intervention, despite the fact that the call centre clerk had made a mistake by not providing the first responders with the access code to open the door. At the hearing, the facts were not contested by the call centre, which acknowledged that the access code for the front door had been provided to the call centre dispatcher but not to the first responders. Despite that mistake, the Court dismissed the action on the basis of the exoneration of liability provided for in section 42(2) of the Act respecting Pre-hospital emergency services2 (hereinafter the “Act”): 42. No person who acts as a first responder under this Act in accordance with the clinical intervention protocols determined by the Minister under section 39 shall incur liability for any injury that may result from his or her intervention, unless the injury is due to an intentional or gross fault. The immunity also applies to the authority having established the first responder service. Likewise, the person or body having required the intervention or assistance of a first responder service may not be held liable for any injury resulting from the intervention. [our emphasis] The Court held that the scope of this provision extended to the emergency call centre as “[a] body having required the intervention or assistance of a first responder service”.3 Up until this point, the provision had never been interpreted by the courts. Therefore, the Court stated that in the absence of any evidence of intentional or gross fault, the defendants could not be held liable pursuant to the second paragraph of section 42 of the Act respecting Pre-hospital emergency services.4 The clerk’s failure to provide the door access code, although an error, was not intentional and cannot be characterized as a gross fault. Furthermore, the Court stated that given that the firemen had to act very quickly, it cannot be presumed that they would have used the code to open the door to the user’s residence even if they had been in possession of that information. Furthermore, the evidence indicated that neighbours present at the relevant time told the first responders that they had the code for opening the door. In short, in the absence of evidence of intentional or gross fault, an emergency call centre could not be held liable. In our view, this decision is consistent with the object of the Act as set out in section 1, namely to “ensure that persons in need of pre-hospital emergency services are at all times able to obtain an appropriate, efficient and quality response aimed at reducing the mortality and morbidity rate among the recipients of pre-hospital emergency services”. Acting in concert with the first responder, the emergency call centre must also be able deliver rapid intervention by concentrating on its primary objective, which is to assist people in distress, without fear of being sued.   Roy v. Groupe Alerte Santé inc., 2017 QCCQ 6729 (hereinafter the “Roy” case). Act respecting Pre-hospital emergency services, CQLR, c. S-6.2 (hereinafter the “Act”). Ibid., s. 42 (2). Roy, supra note 1, para. 15.

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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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