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December 1, 2009

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April 17, 2023

Introduction of Bill 19, An Act respecting the regulation of work by children: the main amendments proposed by the Quebec government

On March 28, the Minister of Labour introduced Bill 19, an Act respecting the regulation of work by children (the “Bill”), which establishes in particular a minimum working age of 14 and a maximum number of hours of work for children subject to compulsory school attendance. This Bill is presented in the wake of massive and noticeable entry of young workers into the market in the context of shortage of unskilled workers exacerbated by the COVID-19 pandemic. Work performed by these children has received significant media coverage in recent months, in particular because of the concerns raised—especially regarding their health and safety and the risks of school dropouts and disengagement—further to their increased presence on the labour market. This legal newsletter will first provide a brief overview of the existing rules governing work by children and outline the amendments proposed by the Bill. CURRENT LEGISLATION Currently, there is no minimum age for work or a maximum number of hours of work per week in Quebec. The Act respecting labour standards1 already provides certain rules that apply to work performed by children. The following rules remain unchanged: Prohibition of work performed by a child that is disproportionate to the child’s capacity, or that is likely to be detrimental to the child’s education, health or physical or moral development.2 Prohibition of work performed during school hours by a child subject to compulsory school attendance.3 In Quebec, the obligation to attend school extends to the last day of school in the school year in which the child attains 16 years of age or in which the child graduates if they are under 16 years of age.4 The employer must ensure that the child’s work is scheduled such that the child can attend school during school hours.5 Prohibition of work by a child between 11 p.m. and 6 a.m. if the child is subject to compulsory school attendance, except in the case of newspaper deliveries or any other case determined by regulation of the Government, in particular for certain categories of artists.6 Obligation to ensure that the child can be at home between 11 p.m. and 6 a.m., except in the case of a child no longer subject to compulsory school attendance or in the cases, circumstances or periods or under the conditions determined by regulation of the Government.7 In addition, note that certain regulations adopted under the Act respecting occupational health and safety stipulate a minimum age for performing certain tasks (e.g., diving, excavation, demolition, etc.). AMENDMENTS PROPOSED BY THE BILL Amendments to the Act respecting labour standards and the Regulation respecting labour standards Minimum age to perform work: 14 years of age, except as provided in the Regulation: Creator or performer in a field of artistic endeavour referred to in the first paragraph of section 1 of the Act respecting the professional status of artists in the visual arts, film, the recording arts, literature, arts and crafts and the performing arts; Deliverer of newspapers or other publications; Babysitter; Child who provides homework assistance or tutoring; Child working in a family enterprise with fewer than 10 employees if the child is a child of the employer or, where the latter is a legal person or partnership, a child of a director of that legal person or of a partner of that partnership, or if the child is a child of the spouse of one of those persons; Child working in a non-profit organization having social or community purposes, such as a vacation camp or recreational organization; and Child working in a non-profit sports organization to assist another person or provide support, such as an assistant instructor, assistant coach or scorekeeper. Note that for the application of each exception, the employer will have to obtain the consent of the holder of parental authority using the form established by the CNESST. In addition, with respect to the last three exceptions above (5) through (7), such children must work under the supervision of a person 18 years of age or over at all times. Maximum hours: 17 hours per week, including a maximum of 10 hours Monday through Friday for children subject to compulsory school attendance, except during periods of more than seven consecutive days without educational services offered to the child. This new labour standard would come into force on September 1, 2023. Notice of termination of employment: No later than 30 days after the Act respecting the regulation of work by children is assented to, an employer who employs a child under 14 years of age performing work that is now prohibited must send the child a notice of termination of employment. The length of the notice varies depending on the child’s years of service: - Three months to less than one year of uninterrupted service: one week’s notice - One to two years of uninterrupted service: two weeks’ notice - Two years or more of uninterrupted service: three weeks’ notice The employer may have the child perform work during the period of notice or pay the child a compensatory indemnity. Penalties: An employer who fails to abide by the provisions governing the work of children commits an offence and is liable to a fine under the Act respecting labour standards. Fines are doubled in the event of a repeat offence. Amendments to the Act respecting occupational health and safety The Bill also amends provisions of the Act respecting occupational health and safety that are already being amended by the Act to modernize the occupational health and safety regime, not all of which are currently in force. The amendments made by the Bill include the following: Prevention program: The program must include the identification and analysis of risks that may affect in particular the health and safety of workers in the establishment, but more specifically those affecting workers who are 16 years of age or under. The same applies to establishments subject to the obligation to develop an action plan. Health and Safety Committee: The committee’s functions include participating in the identification and analysis of risks that may affect in particular the health and safety of workers in the establishment, including those that may particularly affect workers who are 16 years of age or under. Health and safety representative and health and safety liaison officer: They identify situations that may be hazardous to workers, including those specific to workers who are 16 years of age and under, and make recommendations to the Health and Safety Committee, the employer and the union, if any, regarding tasks that should not be performed by workers 16 years of age or under. In conclusion, the Bill provides for more restrictive provisions regarding the supervision of work of children by setting the minimum working age, with certain exceptions, at 14 years of age and by limiting the working week of a child subject to the obligation to attend school to 17 hours. While awaiting the next steps of the study of the Bill in the National Assembly, we suggest that employers follow this matter closely and draw up a list of their employees who are 14 years or under in order to react quickly if the Bill is adopted, as the proposed amendments are likely to have a significant impact on work schedules and the available workforce in certain businesses. The Minister of Labour has indicated that he would like the Bill to come into force by the summer of 2023. CQLR, c. N-1.1 (the “Act”). Section 84.2 of the Act. Section 84.4 of the Act. Section 14 of the Education Act, CQLR, c. I-13.3. Section 84.5 of the Act. Section 84.6 of the Act and Section 35.1 of the Regulation respecting labour standards, RLRQ, c. N-1.1, r. 3 (the “Regulation”). Section 84.7 of the Act and Section 35.2 of the Regulation.

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December 9, 2022

The return of Christmas parties: what employers need to know

After two years of navigating COVID-19, the end of 2022 will be an opportunity for employers to organise larger activities for their employees, such as Christmas parties. The purpose of this newsletter is to make employers aware of their obligations during the holiday season festivities. Below, we will address the following three issues: industrial accidents, disciplinary measures and psychological harassment. Although Christmas parties are generally held outside of the workplace and outside normal working hours, an incident that occurs on such an occasion may qualify as an “industrial accident” within the meaning of the Act respecting industrial accidents and occupational diseases.1 Courts will consider several factors in weighing whether or not such an incident will constitute a work-related accident, including the purpose of the party, the time and place where it was held, whether or not it is organized and financed by the employer, and the presence or absence of a relationship of subordination at the time of the incident. None of these factors are decisive: they serve as a guideline for the tribunal. As many decisions have both granted2 or rejected3 claims in such circumstances. In one case where a Christmas party had been organized by the employer and was intended to encourage a sense of cohesion and belonging amongst the employees, an injury to the coccyx suffered by an employee while dancing with a co-worker was qualified as an industrial accident.4 However, in another case where an employee was injured on an escalator while escorting a drunken co-worker after a Christmas party, the tribunal ruled that the female employee had not suffered an industrial accident due to the absence of authority exercised by the employer at the time of the fall and also because the event was only intended to permit colleagues to fraternize and spend time together and not to improve the work environment.5 In the context of its management rights, an employer may, in certain circumstances, discipline an employee for behaviour which occurred during a Christmas party.6 The degree of the employer’s involvement in the organization of the party and the private nature of the party are important factors in determining whether the employer is justified in imposing disciplinary measures in such a context. For example, an arbitrator upheld the dismissal of an employee who repeatedly hit a colleague and former spouse during the employer's Christmas party held on its premises.7 The fact that the violent acts were committed during a party rather than in the direct context of work was not considered a mitigating factor. This disciplinary power is part of the employer's obligation to ensure a violence-free workplace. This obligation has gained in importance since the recent addition to the Act respecting occupational health and safety8 of the employer's obligation to “take the measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace”.9 In another case, the arbitrator concluded that the employer could not discipline an employee for acts committed at a Christmas party organized and entirely financed by the employees and which took place outside the workplace.10 On another note, a single act of serious conduct at a Christmas party may constitute psychological harassment. A complaint for psychological harassment was upheld against an employer in a situation where the owner had touched the breast of an employee by slipping an ice cube into her sweater.11 This contact, a single gesture, was qualified by the arbitrator as serious conduct amounting to psychological harassment. The arbitrator also concluded that excessive alcohol consumption had no mitigating effect on the seriousness of the act committed. Sexual comments, forced touching and kissing by an employee during the Christmas party were also deemed to constitute psychological and sexual harassment by the courts justifying, in certain circumstances, dismissal.12 Conclusion In light of the foregoing, an employer must exercise caution and adopt measures to reduce the risks associated with the organization of Christmas parties, given that they may be held responsible for accidents or various acts or behaviour that occur during such gatherings. [1] CQLR, c. A-3.001, s. 2. [2] See in particular Fafard et Commission scolaire des Trois-Lacs, 2014 QCCLP 6156; Battram et Québec (Ministère de la Justice), 2007 QCCLP 4450. [3] See in particular Environnement Canada et Lévesque, 2001 CanLII 46818 (QCCLP), par. 35-39; Desjardins et EMD Construction inc., 2007 QCCLP 496. [4] Boivin et Centre communautaire juridique de l'Estrie, 2011 QCCLP 2645 [. [5] Roy-Bélanger et Ressources Globales Aéro inc., 2021 QCTAT 1739 [Quebec’s Tribunal administratif du travail]. [6] Teamsters Québec, section locale 1999 et Univar Canada ltée (Jean-Martin Gobeil), 2020 QCTA 344 (L. Viau). [7] Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 500 (TUAC-FTQ) et Royal Vézina inc. (St-Hubert) (Hicham Alaoui), 2017 QCTA 304 (F. Lamy). [8] CQLR, c. S-2.1. [9] Act respecting occupational health and safety, CQLR, s. 2.1, a. 51, par. 1 (16). This obligation was added pursuant to the Act to modernize the occupational health and safety regime (2021, c. 27, a. 139), [10] Syndicat de la fonction publique et parapublique du Québec et Société de l'assurance automobile du Québec (Joffrey Lemieux), 2021 QCTA 439 (C. Roy). [11] S.H. et Compagnie A, 2007 QCCRT 0348, D.T.E. 2007T-722 (T.A.) (F. Giroux). [12] Pelletier et Sécuritas Canada ltée, 2004 QCCRT 0554 (M. Marchand).

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November 28, 2022

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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September 7, 2022

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

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

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