Publications

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

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

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

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  • Bill C-18 (Online News Act): Canada looking to create a level playing field for news media

    Earlier this month, Canadian Heritage Minister Pablo Rodriguez introduced Bill C-18 (Online News Act) in Parliament. This bill, which was largely inspired by similar legislation in Australia, aims to reduce bargaining imbalances between online platforms and Canadian news outlets in terms of how these “digital news intermediaries” allow news content to be accessed and shared on their platforms. If passed, the Online News Act would, among other things, require these digital platforms such as Google and Facebook to enter into fair commercial agreements with news organizations for the use and dissemination of news related content on their platforms. Bill C-18, which was introduced on April 5, 2022, has a very broad scope, and covers all Canadian journalistic organizations, regardless of the type of media (online, print, etc.), if they meet certain eligibility criteria. With respect to the “digital news intermediaries” on which the journalistic content is shared, Bill C-18 specifically targets online communication platforms such as search engines or social media networks through which news content is made available to Canadian users and which, due to their size, have a significant bargaining imbalance with news media organizations. The bill proposes certain criteria by which this situation of bargaining imbalance can be determined, including the size of the digital platform, whether the platform operates in a market that provides a strategic advantage over news organizations and whether the platform occupies a prominent position within its market. These are clearly very subjective criteria which make it difficult to precisely identify these “digital news intermediaries.” Bill C-18 also currently provides that the intermediaries themselves will be required to notify the Canadian Radio-television and Telecommunications Commission (“CRTC”) of the fact that the Act applies to them. The mandatory negotiation process is really the heart of Bill C-18. If passed in its current form, digital platform operators will be required to negotiate in good faith with Canadian media organizations to reach fair revenue sharing agreements. If the parties fail to reach an agreement at the end of the negotiation and mediation process provided for in the legislation, a panel of three arbitrators may be called upon to select the final offer made by one of the parties. For the purposes of enforceability, the arbitration panel’s decision is then deemed, to constitute an agreement entered into by the parties. Finally, Bill C-18 provides digital platforms the possibility of applying to the CRTC for an exemption from mandatory arbitration provided that their revenue sharing agreements meet the following criteria: Provide fair compensation to the news businesses for news content that is made available on their platforms; Ensure that an appropriate portion of the compensation would be used by the news businesses to support the production of local, regional and national news content; Do not allow corporate influence to undermine the freedom of expression and journalistic independence enjoyed by news outlets; Contribute to the sustainability of Canada’s digital news marketplace; Ensure support for independent local news businesses, and ensure that a significant portion of independent local news businesses benefit from the deals; and Reflect the diversity of the Canadian news marketplace, including diversity with respect to language, racialized groups, Indigenous communities, local news and business models. A bill of this scope will certainly be studied very closely by the members of Parliament, and it would not be surprising if significant amendments were made during this process. We believe that some clarifications would be welcome, particularly as to the precise identity of businesses that will be considered “digital information intermediaries” for the purposes of the Online News Act.

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  • Adoption of Bill 64: what do public bodies need to know?

    Bill 64, also known as the Act to modernize legislative provisions as regards the protection of personal information, was adopted on September 21, 2021, by the National Assembly of Québec. This new bill amends some 20 laws relating to the protection of personal information, including the Act respecting Access to documents held by public bodies and the Protection of personal information ("Access Act"), the Act respecting the protection of personal information in the private sector (“ARPIPS”) and the Act to establish a legal framework for information technology (“AELFIT”). While these changes will affect both public bodies and private businesses, this article focuses exclusively on the new requirements for public bodies covered by the Access Act.  We have prepared an amended version of the Access Act in order to reflect the exact changes brought about by Bill 64. 1. Strengthening consent mechanisms and increasing individual control over personal information By way of Bill 64, some important changes were made to the notion of consent when disclosing personal information to public bodies. From now on, any time an individual’s consent is required by the Access Act, public bodies must ensure that the concerned individual’s consent is given separately from any other disclosed information (s. 53.1). Furthermore, any consent to the collection of sensitive personal information (e.g., health or financial information that gives rise to a reasonable expectation of privacy) will have to be expressly obtained from the data subject (s. 59). The amended Access Act now also provides that minors under the age of 14 must have a parent or a guardian consent to the collection of their personal information. For minors over the age of 14, consent can be given either directly by the minor or by their parent or guardian (s. 53.1). The right to data portability is one of the new rights enforced by Bill 64. These added provisions to the Access Act allow data subjects to obtain data that a public body holds on them in a structured and commonly used technological format and to demand that this data be released to a third party (s. 84). Whenever a public body renders a decision based exclusively on automated processing of personal information, the affected individual must be informed of this process. If the decision produces legal effects or otherwise affects the individual concerned, upon request, the public body must also disclose to the individual (i) the personal information used in reaching the decision, (ii) the reasons and main factors leading to the decision, and (iii) the individual’s right to have this personal information rectified (s. 65.2).  Furthermore, public bodies that use technology to identify, locate or profile an individual must now inform the affected individual of the use of such technology and the means that are available to them in order to disable such functions (s. 65.0.1). 2. New personal data protection mechanisms Public bodies will now be required to conduct a privacy impact assessment whenever they seek to implement or update any information system that involves the collection, use, disclosure, retention or destruction of personal data (s. 63.5). This obligation will effectively compel public bodies to consider the privacy and personal information protection risks involved in a certain project at its outset. In fact, the Access Act now states that every public body must create an access to information committee, whose responsibilities will include offering their observations in such circumstances. 3. Promoting transparency and accountability for public bodies The changes brought about by Bill 64 also aim to increase the transparency of processes employed by public bodies in collecting and using personal data, as well as placing an emphasis on accountability. As such, public bodies will now have to publish on their websites the rules that govern their handling of personal data in clear and simple language (s. 63.3). These rules may take the form of a policy, directive or guide and must set out the various responsibilities of staff members with respect to personal information. Training and awareness programs for staff should also be listed. Any public body that collects personal information through technological means will likewise be required to publish a privacy policy on their website. The policy will have to be drafted in clear and simple language (s. 63.4). The government may eventually adopt regulations to specify the required content of such privacy policies. Moving forward, public bodies will also have to inform data subjects of any personal data transfer outside of the province of Quebec (s. 65). Any such transfer will also need to undergo a privacy impact assessment, which will include an analysis of the legal framework applicable in the State where the personal information will be transferred (s. 70.1). Furthermore, any transfer of personal data outside of Quebec must be subject to a written agreement that takes into account, in particular, the results of the privacy impact assessment and, if applicable, the agreed-upon terms to mitigate the risks identified in the assessment (s. 70.1). A public body that wishes to entrust a person or body outside of Quebec with the task of collecting, using, communicating or retaining personal information on its behalf will have to undertake a similar exercise (s. 70.1 (3)). 4. Managing confidentiality incidents Where a public body has reason to believe that a confidentiality incident (which is defined in Bill 64 as the access, use, disclosure or loss of personal information) has occurred, public bodies will be required to take reasonable steps to mitigate the injury caused to the affected individuals and to reduce the risk of further confidentiality incidents occurring in the future (s. 63.7). In addition, where the confidentiality incident poses a risk of serious harm to the affected individuals, these individuals and the Commission d’accès à l’information (“CAI”) must be notified (unless doing so would interfere with an investigation to prevent, detect or suppress crime or violations of law) (s. 63.7). Public bodies must now also keep a register of confidentiality incidents (s. 63.10), a copy of which must be sent to the CAI upon request. 5. Increased powers for the CAI Bill 64 also grants the CAI an arsenal of new powers aiming to ensure that public bodies, as well as private companies, comply with privacy laws. For example, in the event of a confidentiality incident, the CAI may order any public body to take appropriate action to protect the rights of affected individuals, after allowing the public body to make representations (s. 127.2). Furthermore, the CAI now has the power to impose substantial administrative monetary penalties, the value of which may reach up to $150,000 for public bodies (s. 159). In the event of repeat offences, fines will be doubled (s. 164.1). 6. Coming into force The amendments made by Bill 64 will come into force in several stages. Most of the new provisions of the Access Act [DM1] will come into force two years after the date of assent, which was granted on September 22, 2021. However, some specific provisions will take effect one year after that date, including: The requirements regarding actions to be taken in response to confidentiality incidents (s. 63.7) and the powers of the CAI upon disclosure by an organization of a confidentiality incident (s. 137.2); and The exception to disclosure without consent for research purposes (s. 67.2.1). Conclusion The clock is now ticking for public bodies to implement the necessary changes in order to comply with the new privacy requirements outlined in Bill 64, which received official assent on September 22, 2021. We invite you to consult our privacy specialists to help ensure proper compliance with the new requirements of the updated Access Act. The Lavery team would be more than pleased to answer any questions you may have regarding the upcoming changes and the potential impacts on your org

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  • Amendments to Privacy Laws: What Businesses Need to Know

    Bill 64, also known as the Act to modernize legislative provisions respecting the protection of personal information, was adopted on September 21, 2021, by the National Assembly of Québec. It amends some 20 laws relating to the protection of personal information, including the Act respecting access to documents held by public bodies ("Access Act"), the Act respecting the protection of personal information in the private sector ("Private Sector Act") and the Act respecting the legal framework for information technology. While the changes will affect both public bodies and private businesses, this publication will focus on providing an overview of the new requirements for private businesses covered by the Private Sector Act. We have prepared an amended version of the Private Sector Act in order to reflect the exact changes brought about by Bill 64. Essentially, the amended Private Sector Act aims to give individuals greater control over their personal information and promote the protection of personal information by making businesses more accountable and introducing new mechanisms to ensure compliance with Québec’s privacy rules. The following is a summary of the main amendments adopted by the legislator and the new requirements imposed on businesses in this area. It is important to note that, for the most part, the new privacy regime will come into effect in two years. 1. Increasing transparency and individual control over personal information The new Private Sector Act establishes the right of individuals to access information about themselves collected by businesses in a structured and commonly used technological format. Data subjects will now also be able to require a business to disclose such information to a third party, as long as the information was not “created or inferred” by the business (s. 27). This right is commonly referred to as the “right to data portability.” Businesses now have an obligation to destroy personal information once the purposes for which it was collected or used have been fulfilled. Alternatively, businesses may anonymize personal information in accordance with generally accepted best practices in order to use it for meaningful and legitimate purposes (s. 23). However, it is important that the identity of concerned individuals can never again be inferred from the retained information. This is a significant change for private businesses which, under the current law, can still retain personal information that has lapsed. In addition, Bill 64 provides individuals with a right to “de-indexation.” In other words, businesses will now have to de-index any hyperlink that leads to an individual’s personal information where dissemination of such personal information goes against the law or a court order (s. 28.1). Additionally, whenever a business uses personal information to render a decision based exclusively on an automated processing of such information, it must inform the concerned individual of the process at the latest when the decision is made (s. 12.1). The individual must likewise be made aware of their right to have the information rectified (s. 12.1). Bill 64 provides that the release and use of nominative lists by a private company for commercial or philanthropic prospecting purposes are now subject to the consent of concerned data subjects. Furthermore, in an effort to increase transparency, businesses will now be required to publish their rules of governance with respect to personal information in simple and clear terms on their website (s. 3.2). These rules may take the form of a policy, directive or guide and must, among other things, set out the various responsibilities of staff members with respect to personal information. In addition, businesses that collect personal information through technology will also be required to adopt and publish a privacy policy in plain language on their website when they collect personal information (s. 8.2). The amended Private Sector Act further provides that businesses that refuse access to information requests, in addition to giving reasons for their refusal and indicating the relevant sections of the Act, must now assist applicants in understanding why their request was denied when asked to (s. 34). 2. Promoting privacy and corporate accountability Bill 64 aims to make businesses more accountable for the protection of personal information, as exemplified by the new requirement for businesses to appoint a Chief Privacy Officer within their organization. By default, the role will fall upon the most senior person in the organization (s. 3.1). In addition, businesses will be required to conduct privacy impact assessments (“PIA”) for any information system acquisition, development or redesign project involving the collection, use, disclosure, retention or destruction of personal information (s. 3.3). This obligation forces businesses to consider the privacy and personal information protection risks involved in a project at its outset. The PIA must be proportionate to the sensitivity of the information involved, the purpose for which it is to be used, its quantity, distribution and medium (s. 3.3). Businesses will likewise be required to conduct a PIA when they intend to disclose personal information outside Québec. In these cases, the purpose of the PIA will be to determine whether the information will be adequately protected in accordance with generally accepted privacy principles (s. 17). The extra-provincial release of personal information must also be subject to a written agreement that takes into account, among other things, the results of the PIA and, if applicable, the terms and conditions agreed to in order to mitigate identified risks (s. 17(2)). The disclosure of personal information by businesses for study, research or statistical purposes is also subject to a PIA (s. 21). The law is substantially modified in this regard, in that a third party wishing to use personal information for such purposes must submit a written request to the Commission d'accès à l'information (“CAI”), attach a detailed description of their research activities and disclose a list of all persons and organizations to which it has made similar requests (s. 21.01.1 and 21.01.02). Businesses may also disclose personal information to a third party, without the consent of the individual, in the course of performing a service or for the purposes of a business contract. The mandate must be set out in a written contract, which must include the privacy safeguards to be followed by the agent or service provider (s. 18.3). The release of personal information without the consent of concerned individuals as part of a commercial transaction between private companies is subject to certain specific requirements (s. 18.4). The amended Private Sector Act now defines a business transaction as “the sale or lease of all or part of an enterprise or its assets, a change in its legal structure by merger or otherwise, the obtaining of a loan or other form of financing by it, or the taking of a security interest to secure an obligation of the enterprise” (s. 18.4). Bill 64 enshrines the concept of “privacy by default,” which means that businesses that collect personal information by offering a technological product or service to the public with various privacy settings must ensure that these settings provide the highest level of privacy by default, without any intervention on behalf of their users (s. 9.1). This does not apply to cookies. Where a business has reason to believe that a privacy incident has occurred, it must take reasonable steps to reduce the risk of harm and the reoccurrence of similar incidents (s. 3.5). A privacy incident is defined as “the access, use, disclosure or loss of personal information” (s. 3.6). In addition, businesses are required to notify concerned individuals and the CAI for each incident that presents a serious risk of harm, which is assessed in light of the sensitivity of the concerned information, the apprehended consequences of its use and the likelihood that it will be used for a harmful purpose (s. 3.7). Companies will furthermore be required to keep a confidentiality incident log that must be made available to the CAI upon request (s. 3.8). 3. Strengthening the consent regime Bill 64 modifies the Private Sector Act to ensure that any consent provided for in the Act is clear, free and informed and given for specific purposes. This means that consent must be requested for each of the purposes of the collection, in simple and clear terms and in a clearly distinct manner, to avoid consent being obtained through complex terms of use that are difficult for individuals to understand (art. 14). The amended Private Sector Act now provides that minors under the age of 14 must have a parent or a guardian consent to the collection of their personal information. For minors over the age of 14, consent can be given either directly by the minor or by their parent or guardian (s. 14). Within an organization, consent to the disclosure of sensitive personal information (e.g., health or other intimate information) must be expressly given by individuals (s. 12). 4. Ensuring better compliance The Private Sector Act has likewise been amended by adding new mechanisms to ensure that businesses subject to the Private Sector Act comply with its requirements. Firstly, the CAI is given the power to impose hefty dissuasive administrative monetary penalties on offenders, which can be as high as $10,000,000 or 2% of the company's worldwide turnover (s. 90.12). In the event of a repeat offence, the fine will be doubled (s. 92.1). In addition, when a confidentiality incident occurs within a company, the CAI may order it to take measures to protect the rights of affected individuals, after allowing the company to make observations (s. 81.3). Secondly, new criminal offences are added to the Private Sector Act, which may also lead to the imposition of severe fines. For offending companies, such fines can reach up to $25,000,000 or 4% of their worldwide turnover (s. 91). Finally, Bill 64 creates a new private right of action. Essentially, it provides that when an unlawful infringement of a right conferred by the Private Sector Act or by articles 35 to 40 of the Civil Code of Québec results in prejudice and the infringement is intentional or the result of gross negligence, the courts may award punitive damages of at least $1,000 (s. 93.1). 5. Coming into force The amendments made by Bill 64 will come into force in several stages. Most of the new provisions of the Private Sector Act will come into force two years after the date of assent, which was granted on September 22, 2021. However, some specific provisions will take effect one year after that date, including: The requirement for businesses to designate a Chief Privacy Officer (s. 3.1); The obligation to report privacy incidents (s. 3.5 to 3.8); The exception for disclosure of personal information in the course of a commercial transaction (s. 18.4); and The exception to disclosure of personal information for study or research purposes (s. 21 to 21.0.2). Finally, the provision enshrining the right to portability of personal information (s. 27) will come into force three years after the date of official assent. The Lavery team would be more than pleased to answer any questions you may have regarding the upcoming changes and the potential impact of Bill 64 on your business. The information and comments contained in this document do not constitute legal advice. They are intended solely for the use of the reader, who assumes full responsibility for its content, for their own purposes.

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  • Loss of personal information: The Superior Court dismisses a class action

    On March 26, 2021, the Superior Court rendered a decision dismissing a class action against the Investment Industry Regulatory Organization of Canada (“IIROC”) on the loss of personal information of thousands of Canadian investors.1 The lack of evidence of compensable injury and IIROC’s diligent behaviour are the main reasons for the dismissal of the class action. The Facts On February 22, 2013, an inspector working for IIROC forgot his laptop computer in a public place. The computer, which contained the personal information of approximately 50,000 Canadians, was never found. The information had originally been collected by various securities brokers who were under inspection by IIROC. Mr. Lamoureux, whose personal information was on the computer, brought a class action on behalf of all persons whose personal information was lost in the incident. He claimed compensatory damages for the stress, anxiety and worries associated with the loss of personal information, as well as compensation for the injury associated with the identity theft or attempted identity theft of members. He also claimed punitive damages for unlawful and intentional infringement of the right to privacy protected by the Quebec Charter of Human Rights and Freedoms. On this point, the members claimed that IIROC had been reckless and had delayed in notifying affected persons and brokers, as well as relevant authorities. Decision The class action is dismissed in its entirety. Compensatory damages The Superior Court started by acknowledging IIROC’s admission that it was at fault for the loss of the computer, and that the computer was not encrypted as it should have been to comply with IIROC policies. With respect to compensatory damages, the Court reiterated the principle according to which the existence of fault does not presume the existence of injury; each case must be analyzed on the basis of the evidence.2 In this case, the injury alleged by the members can be summarized as follows: They suffered worry, anger, stress and anxiety about the incident. They were forced to monitor their financial accounts, and in particular their credit cards and bank accounts. They were inconvenienced and wasted time in having to deal with credit agencies and ensuring that their personal information was protected. They felt shame and suffered delays caused by identity checks on their credit applications attributable to flags on their files. In its analysis, the Court held that, apart from the fact that the members were generally troubled by the loss of their personal information, there was no evidence of any particular and significant difficulties related to their mental state. Relying on Mustapha v. Culligan of Canada Ltd.,3 the Court reiterated that “the law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.” If the injury is not serious and prolonged, and is limited to ordinary discomforts and fears that are inherent to life in society, it does not constitute compensable injury. In this case, the Court found that the negative feelings experienced as a result of the loss of personal information did not rise above the level of ordinary discomforts, anxieties and fears that people living in society routinely accept. Having to monitor one’s personal accounts more closely does not qualify as a compensable injury, as the courts equate this practice with that of [translation] “a reasonable person who protects their assets.”4 The Court also considered the fact that IIROC provided members with free credit monitoring and protection services. It thus concluded that, in this respect, there was no injury to compensate. Finally, the experts who were mandated to analyze the circumstances and wrongful use of the investors’ personal information found that there was no clear indication of wrongful use of the information by a person or group of persons, although evidence of wrongful use of personal information is not necessary to assert a claim. Punitive damages The plaintiff, on behalf of the members of the class action, also sought punitive damages on the grounds that IIROC had been reckless in its handling of the incident. To analyze IIROC’s diligence, the Court noted the following facts.  IIROC launched an internal investigation in the week that followed that of February 22, 2013, the date on which the computer was lost. On March 4, 2013, the investigation revealed that the computer likely contained the personal information of thousands of Canadians. IIROC filed a police report. On March 6, 2013, it mandated Deloitte to identify what personal information was lost and who were the affected persons and brokerage firms, and to help it manage the risks and obligations associated with the loss of the personal information. On March 22, 2013, Deloitte informed IIROC that the computer contained “highly sensitive” and “increased sensitivity” information about thousands of Canadian investors. On March 27, 2013, IIROC notified the Commission d’accès à l’information du Québec and the Office of the Privacy Commissioner of Canada. On April 8 and 9, 2013, IIROC met with representatives of the affected brokerage firms, and simultaneously mandated credit agencies to implement safeguards for investors and brokerage firms. IIROC also set up a bilingual call center, issued a press release about the loss of the computer and sent a letter to affected investors. The Court also accepted expert evidence according to which IIROC’s response was consistent with industry best practices, and that the measures put in place were appropriate in the circumstances and consistent with other responses to similar incidents. In light of the evidence, the Court concluded that the loss of the unencrypted laptop computer and the resulting violation of the right to privacy were isolated and unintentional. It therefore dismissed the claim for punitive damages. The outcome is that IIROC was not reckless: it rather acted in a timely manner. Comments This decision introduces a basis for analyzing the diligent conduct of a company should the personal information that it holds be compromised, and confirms that a prompt and diligent response to a security incident can safeguard against a civil suit. It also confirms that the mere loss of personal information, no matter how sensitive, is not in itself sufficient to justify financial compensation, and that it must be proven that injury was suffered. Furthermore, ordinary annoyances and temporary inconveniences do not constitute compensable injury, and monitoring financial accounts is not exceptional, but is rather considered the standard practice expected of a reasonable person protecting their assets. At the time of writing this bulletin, the time limit for appeal has not expired and the plaintiff has not announced whether he intends to appeal the judgment. Lamoureux v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2021 QCCS 1093. Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2014 QCCS 4061, paras. 21 and 22. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [2008] 2 SCR 114. Lamoureux v. Organisme canadien de réglementation du commerce des valeurs mobilières, 2021 QCCS 1093, para. 73.

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  • Artificial intelligence soon to be regulated in Canada?

    For the time being, there are no specific laws governing the use of artificial intelligence in Canada. Certainly, the laws on the use of personal information and those that prohibit discrimination still apply, no matter if the technologies involved are so-called artificial intelligence technologies or conventional ones. However, the application of such laws to artificial intelligence raises a number of questions, especially when dealing with “artificial neural networks,” because the opacity of the algorithms behind these makes it difficult for those affected to understand the decision-making mechanisms at work. Such artificial neural networks are different in that they provide only limited explanations as to their internal operation. On November 12, 2020, the Office of the Privacy Commissioner of Canada (OPC) published its recommendations for a regulatory framework for artificial intelligence.1 Pointing out that the use of artificial intelligence requiring personal information can have serious privacy implications, the OPC has made several recommendations, which involve the creation of the following, in particular: A requirement for those who develop such systems to ensure that privacy is protected in the design of artificial intelligence systems; A right for individuals to obtain an explanation, in understandable terms, to help them understand decisions made about them by an artificial intelligence system, which would also involve the assurance that such explanations are based on accurate information and are not discriminatory or biased; A right to contest decisions resulting from automated decision making; A right for the regulator to require evidence of the above. It should be noted that these recommendations include the possibility of imposing financial penalties on companies that would fail to abide by this regulatory framework. Moreover, contrary to the approach adopted in the General Data Protection Regulation and the Government of Quebec’s Bill 64, the rights to explanation and contestation would not be limited solely to automated decisions, but would also cover cases where an artificial intelligence system assists a human decision-maker. It is likely that these proposals will eventually provide a framework for the operation of intelligence systems already under development. It would thus be prudent for designers to take these recommendations into account and incorporate them into their artificial intelligence system development parameters as of now. Should these recommendations be adopted, it will also become necessary to consider how to explain the mechanisms behind the systems making or suggesting decisions based on artificial intelligence. As mentioned in these recommendations, “while trade secrets may require organizations to be careful with the explanations they provide, some form of meaningful explanation should always be possible without compromising intellectual property.”2 For this reason, it may be crucial to involve lawyers specializing in these matters from the start when designing solutions that use artificial intelligence and personal information. https://www.priv.gc.ca/en/about-the-opc/what-we-do/consultations/completed-consultations/consultation-ai/reg-fw_202011/ Ibid.

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  • Constant supervision: how does the recent court decision impact CPEs, daycare centres and home childcare providers?

    On January 15, 2020, the Court of Québec handed down an important decision that could have an impact very quickly on the entire childcare network.1. In its ruling dealing with a breach of the obligation to provide constant supervision of the children, the court questioned the concept of auto-pauses (also known as pauses jumelées or pauses autogérées). This widespread practice consists of having a single childcare staff member, usually an educator, temporarily supervise two groups of napping children to allow another childcare staff member to go on a break. The court took advantage of the opportunity to delimit the obligation of constant supervision set out in section 100 of the Educational Childcare Regulation2 (The “Regulation”), awhich applies indiscriminately to all childcare providers: the centres de la petite enfance (CPEs), daycare centres and home childcare providers. Finally, the court made some interesting comments on the calculation of the ratios, although this was not a central issue in the dispute. The court’s reasons and comments will likely lead childcare providers to question the organization of their work, their practices, directives and even their individual or collective work agreements. Decision Facts In April 2018, an inspector from the Ministère de la Famille visited a CPE to conduct a full inspection for the renewal of its permit, and to deal with a complaint about child supervision during naps. In the afternoon, the inspector entered a room and found seven children lying on small mats scattered on the floor. Some of them were not sleeping and no educator was present. However, in an adjacent room, an educator was sitting along the back wall. This second room had ten other children, also lying down for a nap. The evidence showed that an observation window separated the two rooms, which were also connected by a shared bathroom. The court noted that it was impossible at that time for the educator to get a full view of the adjacent room, in particular, because of the furniture that was dispersed about the room and partially obstructed the view. A statement of offence for failure to maintain constant supervision was issued to the CPE, although the practice of placing two groups under the supervision of a single educator at nap time, to allow a colleague to take a break, is a well-known practice. The concept of constant supervision To date, there are very few decisions dealing with the concept of constant supervision in a childcare context. The court, therefore, used this opportunity to consider this concept in greater detail [translation]: « [23] The CPE [...] must ensure that the children to whom childcare is provided are constantly supervised for their safety; [24] The French adjective constante [constant] is defined in the Larousse dictionary as follows: [translation] that which is uninterrupted, continuous; durable. [25] Le Petit Druide des synonymes et des antonymes has the following synonyms for the adjective constante: [translation] continual, continuous, at every moment, unceasing, uninterrupted, perpetual, without end. The antonyms are: [translation] discontinuous, intermittent, irregular. [26] The Larousse dictionary defines the French word surveiller [to supervise] as the act of observing attentively. In the decision in Directeur des poursuites criminelles et pénales c. Centre de la petite enfance (CPE) Le petit sentier, Judge Rivest noted that it is the action of watching over someone in one’s care and/or for whom one is responsible, taking care of them, being attentive. [27] There are few reported decisions dealing with this issue. Based on the decisions filed with the pleadings, the Court finds that the adequacy of the supervision depends on the specific facts of each case. [28] Since young children are involved in this case, the Court finds that this supervision must be visual and auditory to be effective. (References omitted) Applying this reasoning to the facts in this case, the court found, beyond any reasonable doubt, that the children in the group for which there was momentarily no educator were not under constant, but rather “intermittent", supervision. Due diligence and the auto-pause concept At trial, the CPE presented a so-called "due diligence" defence, arguing that all reasonable precautions were taken to avoid committing the offence. In particular, it referred to an internal memo sent to all the employees on how to proceed during an auto-pause. According to the memo, educators must be near the observation window and walk regularly between the two rooms to verify the children’s status. In the event that a child wakes up, the instruction is then to respond to his or her needs promptly and engage in a quiet game with the child in order to respect the other children’s nap time. The CPE demonstrated that this directive had been communicated to all the staff and that it was regularly discussed at meetings. In addition, a pedagogical adviser ensured that this rule was respected. The failure to comply with this obligation could result in disciplinary sanctions up to and including dismissal. Despite the foregoing, the court rejected the CPE’s due diligence defence. It stated that in the context of an auto-pause, the directive was not able to bring the CPE into compliance with the Educational Childcare Act3 (the “Act”). It was in fact inevitable, in the court's view, that the educator would have to attend to a specific child at some point in time and would no longer be able to see what was happening in the other room. The court concluded by adding that a reasonable person placed in the same circumstances should provide for a sufficient quantity of staff to replace the educators during their breaks. On this point, it noted that [translation] “the children's safety must take precedence over the economic interests of the [childcare] service providers”4. Furthermore, it stated that, despite the CPE's efforts to ensure compliance with its directives, it was the auto-pause concept itself that was problematic and, in the court’s words, [translation] “completely inappropriate”5. Thus, the CPE was convicted of breaching the obligation of constant supervision of the children and ordered to pay a fine. What is the impact with respect to the organization of work for childcare providers? The court’s decision will likely raise doubts about the organization of work for many childcare service providers, particularly permit holders who make use of the auto-pause concept. However, the ramifications could be much more far-reaching. Level of supervision We can easily imagine that the issue of adequate supervision could give rise to many challenges on a daily basis. The court indicated that such supervision must be auditory and visual, but may also vary depending on the circumstances. The analysis of a situation could therefore be influenced by various things, such as the premises (private residence, facility, park, etc.), their layout (presence of furniture, size of openings, etc.), the location of the workers and children while services are being provided, and the nature of the activities conducted. Given the court’s requirement that the supervision must be both visual and auditory, the assessment of its adequacy would seem to be all the more likely to raise questions for home childcare providers and compliance officers in coordinating offices who conduct visits to monitor these providers. Calculating ratios It should be noted that the offence with which the CPE was charged in this case did not concern compliance with the ratios provided for under the Act for the number of children to childcare staff that are required to be present on the premises during the provision of services. The issue before the court was strictly to determine whether the CPE was providing constant supervision of the two groups of children at the time of the inspection. While the court stated that it would reserve its comments on the question of the ratio, it nevertheless clearly added that it did not agree with the CPE’s interpretation of the number of childcare staff that were needed to care for the children in its facility. Thus, despite the fact that the educators could not leave the facility during their breaks, the court noted that by ordering the educators to split their time between two rooms, the CPE was disregarding the ratios provided for in the Act. Thus, the court's view was evidently that the ratios set out in section 21 of the Act would apply to each group of children, and could not be calculated as a whole, across the entire facility. The auto-pause concept In light of the specific facts submitted as evidence, the court found that the very concept of auto-pause is inappropriate. While some might therefore be tempted to conclude that all auto-pauses should be abolished, or that they are necessarily illegal, it should be remembered that each situation must be analyzed separately, based on its specific circumstances. Thus, a permit holder may still be able to show that they are in compliance with their obligation of constant supervision, for example, through a combination of adequate premises, resources, work instructions and protocols. This being said, the fact that the court has raised doubts about the very concept of the auto-pause will necessarily lead permit holders to question the organization of their work. In a context in which the court relies, inter alia, on its own calculation of the ratios applicable to the group of children, it could be even more complex for permit holders to determine the scope of their obligations. The same thing can be said for the manner in which they will be able to meet their obligations taking into account their mission, budget, human and material resources, individual or collective work agreements, and the specific needs of the children in their care. Conclusion The decision rendered by the Court of Québec on January 15, 2020 sheds light on the notion of constant supervision in the context of the provision of childcare services. Thus, to ensure that they are in compliance with their obligations and avoid penal or administrative penalties, it may be appropriate for childcare providers to review the organization of their work. A notice of appeal of this decision was filed on February 14, 2020 by the CPE. We will keep you informed of further developments. Should you wish to obtain further information on this topic, or discuss possible solutions for your own situation, please do not hesitate to contact our team of professionals.   Directeur des poursuites criminelles et pénales c. Centre de la petite enfance Soulanges (CPE Soulanges), C.Q. Beauharnois, 760-61-124110-199, January 15, 2020 (hereinafter DPCP c. CPE Soulanges). CQLR, c. S-4.1.1, r. 2. CQLR, c. S-4.1.1. DPCP c. CPE Soulanges, para. 42. Idem, para. 45.

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  • Privacy Breach Reporting: Supplying the Stick for Your Own Beating?

    Since the EU’s General Data Protection Regulation (“GDPR”) came into force in May 2018, the government of Canada has decided to align its security breach legislation with these new EU standards. Thus, as of November 1st 2018, organizations and businesses in Canada will be required to comply with sections 10.1 to 10.3 of the Personal Information Protection and Electronic Documents Act (“PIPEDA”), as well as with the new Breach of Security Safeguards Regulations, which create a federal mandatory breach reporting regime for Canada’s private sector. However, a preliminary issue with respect to the application of these new provisions may arise regarding the extent to which they apply to private sector organizations within provinces that have adopted legislation which the federal government has found to be “substantially similar” to PIPEDA. These new regulations, although applauded for providing increased protection for personal information, also have the corollary effect of imposing several hefty obligations on Canadian businesses and organizations. Such obligations include the requirement to: (i) conduct a risk assessment to determine whether the breach poses a “real risk of significant harm” to affected individuals; (ii) give notice to affected individuals and the Privacy Commissioner “as soon as feasible”; and (iii) keep records of all breaches (even those that do not meet the reporting threshold) for at least 24 months. The record keeping policy is an important compliance mechanism of the new regulations and will inevitably result in increased costs and new challenges for businesses and organizations dealing with private information. It seems undeniable that these new regulations will also increase the already growing interest in cyber-risk insurance in Canada. However, it is very likely that prospective cyber liability insurers will demand access to the breach records of their future clients in order to properly assess the risk. Businesses considering the possibility of outsourcing certain services to a service provider may also consider requesting access to the service provider’s breach records as part of their due diligence. Likewise, parties to a corporate transaction may also wish to review the breach records to help determine the risks associated with the transaction. One thing is now certain: denial is no longer an option for cyber security risk management. Businesses will have to ensure that they adopt safeguard measures and internal procedures that will allow them to adequately detect, react to, and defuse security breaches. Technology security specialists and lawyers will be valuable allies to help organizations and businesses navigate these new waters.

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  • The Supreme Court of Canada reinforces the protection of litigation privilege by elevating it to class privilege status

    Ten years after Blank v. Canada (Minister of Justice),1 the leading case regarding litigation privilege, the Supreme Court of Canada has seized the opportunity to reaffirm and expand on the principles set out in that important decision. Indeed, in its most recent case, Lizotte v. Aviva Insurance Company of Canada,2 rendered on November 25, 2016, Canada’s highest court clarified the limits and reinforced the scope of litigation privilege. It also closely considered what legislators would have to do to derogate from the application of this common law privilege which also applies under Québec civil law. The context This case originated in the context of an investigation by the assistant syndic of the Chambre de l’assurance de dommages of a claims adjuster subject to her powers of investigation in matters of professional conduct. Relying on section 337 of the Act respecting the distribution of financial products and services (the “Act”), which provides for the duty of an insurer to forward “any document or information” on the activities of a representative under investigation, the assistant syndic asked the Aviva insurance company to provide her with a full copy of the claim file held by the adjuster. Aviva opposed the request on the ground that some of the documents were protected by litigation privilege. Although the privilege issue later became moot since a settlement was reached in the litigation involving Aviva and its insured, the syndic nonetheless decided to file a motion for a declaratory judgment before the Court on the issue of whether the general wording of section 337 of the Act is enough to set aside litigation privilege. The characteristics of litigation privilege As stated in the Blank case, rendered by the Supreme Court in 2006, the purpose of litigation privilege is to ensure the efficacy of the adversarial process, by leaving the parties “to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure”.3 Litigation privilege therefore creates an immunity from disclosure with respect to documents and communications whose “main purpose” is the preparation for litigation. Due to its origins, this privilege has often been conflated with solicitorclient privilege. However, the Blank case made a very clear conceptual distinction between these two notions. In Blank, the Supreme Court noted that “[t]hey often co-exist and one is sometimes mistakenly called by the other’s name, but they are not coterminous in space, time or meaning”.4 The Court also states that litigation privilege, “unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration”.5 The distinctions between these two concepts as identified in the Blank case are repeated in the Lizotte case: The purpose of solicitor-client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process; Solicitor-client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends; Litigation privilege applies to unrepresented parties, even where there is no need to protect access to legal services; Litigation privilege applies to non-confidential documents. In fact, contrary to solicitor-client privilege, confidentiality is not an essential condition of litigation privilege; Litigation privilege is not directed at communications between solicitors and clients as such. Despite the clear distinctions between these two types of privilege, the Lizotte case does point out their common characteristics, particularly the fact that they serve a common cause: the secure and effective administration of justice.6 The Court is then asked to address the issue of whether litigation privilege can be raised against third parties, particularly investigators. According to the Court, it would not be appropriate to exclude third parties from the application of this privilege or to expose this privilege to the uncertainties of disciplinary and legal proceedings which could result in the disclosure of documents that would otherwise be protected, even assuming that there is no risk that a syndic’s inquiry will result in the disclosure of privileged documents. Indeed, the mere possibility of a party’s work being used by the syndic in preparing for litigation could discourage that party from writing down what he or she has done.7 As a result, unless a third party can satisfy the conditions of a recognized exception to litigation privilege, such privilege can be raised against him or her. Finally, it is interesting to note that in the Blank case, the Court recognized that while solicitor-client privilege has benefited from a liberal interpretation, commensurate with its importance, the situation has been notably different for litigation privilege, the scope of which had to be adapted to the modern trend in the legislation and case law towards mutual and reciprocal disclosure, the hallmark of the judicial process.8 The recognition of a new class privilege However, this last remark, which could correctly be referred to as an obiter dictum, did not prevent the Supreme Court from pushing further the recognized protection of litigation privilege in the Lizotte case by elevating it to “class privilege” status, that is, a privilege with a nondisclosure presumption each time its conditions of application are met. This is to be contrasted with a privilege recognized on a case-by-case basis, whose application depends upon a specific analysis based on a four-pronged test, including a balancing of the interests involved. The Court states as follows: “[36] Thus, although litigation privilege differs from solicitor-client privilege in that its purpose is to facilitate a process — the adversary process (Blank, at para. 28, quoting Sharpe, at paras. 164-65) — and not to protect a relationship, it is nevertheless a class privilege. It is recognized by the common law courts, and it gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation (Blank, at para. 60). [37] This means that any document that meets the conditions for the application of litigation privilege will be protected by an immunity from disclosure unless the case is one to which one of the exceptions to that privilege applies. As a result, the onus is not on a party asserting litigation privilege to prove on a case-by-case basis that the privilege should apply in light of the facts of the case and the “public interests” that are at issue (National Post, at para. 58).” To grasp the importance of the Lizotte case, one must understand that the law has recognized precious few of these so-called “class” privileges. Except for solicitor-client privilege, which is “the most notable example of a class privilege,”9the only other class privileges which we have encountered in the case law are police informer privilege,10 spousal privilege11 and litigation privilege.12 In the case of R. v. National Post, the Supreme Court even refused to recognize class status for the privilege of journalists’ confidential sources, noting that “[i]t is likely that in future such “class” privileges will be created, if at all, only by legislative action.” Exceptions to litigation privilege As with other class privileges, litigation privilege is subject to clearly defined exceptions, rather than a balancing of interests on a case-by-case basis. The Court has therefore decided that the recognized exceptions to solicitor-client privilege are also applicable to litigation privilege,13 that is, those exceptions related to public safety, the innocence of an accused, and communications of a criminal nature. There is also the exception to litigation privilege already recognized in the Blank case regarding the disclosure of “evidence of the claimant party’s abuse of process or similar blameworthy conduct.” Legislative exceptions to litigation privilege Although it is undeniable that litigation privilege does not benefit from the same status as solicitor-client privilege — a principle of fundamental justice and a “civil right of supreme importance in the Canadian justice system”14 — it nonetheless remains the case that it has been referred to as being “fundamental to the proper functioning of our legal system”15 since it is at the heart of our accusatory and contradictory system and because it promotes the search for truth by allowing the parties to adequately prepare for litigation. For this reason, the Court reminded us of the requirement whereby the modification or revocation of common law rules, which are of fundamental importance, requires that the legislator use clear and explicit language. As a result, a party cannot be deprived of the right to claim litigation privilege in the absence of a clear and explicit legislative text. In that respect, section 337 of the Act, on which the assistant syndic was relying, was not deemed to be sufficient to set aside the application of that privilege. Therefore, the Québec legislator, as well as the legislators of the other provinces and the federal legislator, will have to take note of this important decision and will likely be called upon to amend the wording of the general provisions regarding the production of documents where they do not specify that they apply to documents in respect of which litigation privilege, or any other privilege of a similar nature, may be relied upon. [2006] 2 S.C.R. 319 (“Blank”). 2016 SCC 52 (“Lizotte”). Blank, para 27. Id., para 1. Id., para 37. Lizotte, para 24. Id., para 52. Blank, para 60, 61. R. v. McClure, [2001] 1 S.C.R. 445, para 28. R. v. Basi, [2009] 3 S.C.R. 389, para 22. Canada Evidence Act, RSC 1985, c C-5, sec. 4(3); R. c. McClure, cited above, para 28. Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623, para 12. Smith v. Jones, [1999] 1 S.C.R. 455, para 44. Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, para 5. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574.

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  • From “Safe Harbor” to “Privacy Shield”: laying the groundwork for a new agreement on transatlantic data transfer with the United States

    The United States and the European Union recently concluded a new agreement aimed at allowing U.S. companies to continue to collect, use and disclose personal information concerning European citizens, while still preserving their fundamental rights. To properly understand the importance of this new agreement, one must be aware that the Court of Justice of the European Union, in a decision rendered on October 6, 2015, had declared invalid the previous data sharing framework, known as "Safe Harbour", which governed the holding of personal information regarding European nationals by numerous American companies, including Web giants such as Facebook and Google. This transnational agreement provided for a self-certification mechanism for U.S. companies by which they undertook to abide by a certain number of guiding principles applicable in the European Economic Area (EEA), pursuant to which these companies could obtain the authorization to collect and store personal information originating from the European Union. Such an agreement was necessary to allow U.S. companies to hold personal information about European citizens because the legislative framework applicable in the United States does not offer "an adequate level of protection" for personal information as compared with that required by European authorities. However, in the wake of the revelations by Edward Snowden regarding the mass surveillance by U.S. authorities of the computer data of several large corporations, an Austrian citizen, Maximillian Schrems, sought and obtained the invalidation by the Court of Justice of the European Union of the Safe Harbour Agreement.1 The Court held that the “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life”. While this decision was, in principle, supposed to apply immediately, the Data Protection Working Party (known as the “WP29”) — an independent European advisory board on data protection and privacy — urged the European institutions and the U.S. government to act by January 31, 2016 to agree to an alternative solution. It was in this context that the European Commission made the highly anticipated announcement, on February 2, 2016, of a new agreement in principle with the United States, dubbed the "Privacy Shield". The details of this agreement have not yet been disclosed, but we already know that this new mechanism will entail stricter obligations and tighter control of U.S. companies that deal with information of a personal nature originating from the European Union. Furthermore, access by U.S. authorities to this information is expected to be more closely regulated and more transparent. While, in theory, this agreement does not directly affect Canadian companies that collect, use or disclose personal information regarding European citizens, any such companies having an American subsidiary or a place of business in the United States and which collect personal information from Europe, as well as Canadian companies mandating third parties located in the United States with tasks that require the communication of personal information on European nationals, e.g. for hosting purposes, would be well advised to ensure they comply with the conditions of this new agreement when it takes effect. Stay tuned for more updates.   Schrems v. Data Protection Commissioner, 2000/520/CE, Court of Justice of the European Union, 6 Octobre 2015.

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  • New Anti-Spam Law: Better Act Quickly

    In December 2010, the federal Parliament passed the Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities1 that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, better known as the “Canada’s Anti Spam Legislation” (CASL or the “Act”). The purpose of the Act is mainly to protect Canadian consumers and businesses against unsolicited spam messages, false or misleading commercial representations, malicious software and other electronic threats. It is scheduled to come into force on July 1, 2014. The new regime is based on a opt-in mechanism rather than through exclusion. As such, after July 1st, sending a commercial electronic message will be prohibited unless the recipient has consented to receiving it. Canadian businesses using electronic mail or social networks to inform and solicit customers will therefore have to review their practices in order to comply with the law, failing which they will be liable to administrative penalties and civil suits. However, transition measures are provided to give businesses time to adjust their practices.The definition of “commercial electronic message” within the meaning of the Act is wide and covers all electronic messages, including text messages (commonly called SMS), sound, vocal or visual messages in respect of which it is reasonable to conclude that their purpose is to encourage participation in a commercial activity. For instance, an electronic message which promotes an offer to purchase, sell or rent a product or a service constitutes a commercial electronic message covered under the Act. Such is also the case for an electronic message promoting a person as a purchaser, seller or renter of a product or service or involved in the areas of business, investment or gaming.Since non commercial activities are not covered under the Act, it must be noted that political parties, charitable organizations and corporations conducting market studies or surveys are generally not covered under the Act, unless their electronic messages are related to the sale or promotion of a product.Furthermore, the Act provides for many exceptions, such as messages sent between persons having a personal or family relationship or commercial electronic messages responding to a recipient who requested information on prices or estimates for the provision or delivery of goods, products or services.For the time being, the prohibition does not cover verbal communications by phone, which are currently governed by the Telecommunications Act2, particularly through the National Do Not Call List. However, this exception may be revoked by order-in-council if the government deems it appropriate.EXPRESS OR IMPLIED CONSENT OF THE RECIPIENTThe required consent for sending a commercial electronic message may be express or implied. The situations where the sender of such a message may rely on the implied consent of the recipient are set out in the Act. For instance, the Act provides that there is implied consent where the sender and the recipient have or had an ongoing business relationship within the two years preceding the date the message is sent. The same applies where the recipient asked the sender about products, goods or services during a 6-month period preceding the date of the message.The consent of the recipient is also implied if he or she has conspicuously published his or her electronic address without adding a statement whereby the recipient does not wish to receive unsolicited commercial electronic messages, to the extent that the message is relevant to the recipient’s employment or business or functions in such business.The consent is also implied where the recipient communicated his or her electronic address to the sender without indicating that he or she does not wish to receive unsolicited commercial electronic messages, again to the extent that the message is relevant to the recipient’s employment or business or functions in such business.Lastly, the existence of private relationships between the sender and the recipient within the two-year period immediately before the day on which the message is sent also allows for inferring the implied consent of the recipient to a commercial electronic message being sent in the cases provided in the Act.In all other cases where the Act does allow for inferring an implied consent, the express consent of the recipient is required for sending a commercial electronic message. Such consent is not presumed and the burden of proof lies with the sender.To obtain this consent, the sender must set out clearly and simply the purposes for which the consent is being sought and also the information that identifies the person seeking consent (or if the person is seeking consent on behalf of another person, information that identifies that other person). The scope of information which is required to be provided to identify the person seeking consent is set out in the regulations.It is important to note that after July 1st, a request for consent will in itself constitute a commercial electronic message. It will therefore not be possible to request such consent using an electronic mean, subject to certain exceptions.MECHANISM FOR WITHDRAWING CONSENT AND FORM OF COMMERCIAL ELECTRONIC MESSAGESThe Act provides that any person sending a commercial electronic message to another person must implement an unsubscribe mechanism allowing the recipient to withdraw his or her consent to receive commercial electronic messages from that sender. The sender must allow the recipient to express his or her will by electronic means, either by electronic mail or through a website, without cost and at any time. The sender must give effect to any withdrawal within a 10-day period.The description of this withdrawal mechanism must appear in the commercial electronic message which must, in addition, include information that identifies the person who sends the message or, if the message is sent on behalf of another person, the information that identifies the person who sends the message and the person on whose behalf it is sent. The commercial electronic message must also indicate the postal address and either the phone number to reach a service agent or a voicemail service, or the electronic mail address or the address of the website of the person who sends the message or, if applicable, the address of the website of the person on whose behalf it is sent.If it is practically impossible to include this information and the withdrawal mechanism in the commercial electronic message, they may be posted on an easily accessible web page without charge to the recipient through a link indicated clearly and prominently in the message.ADMINISTRATIVE PENALTIES AND PRIVATE RIGHT OF ACTIONThe Act provides for severe penalties for persons who fail to comply with its provisions. Contraveners are liable to administrative monetary penalties of up to $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.Furthermore, the existence of a private right of action against the sender of an unsolicited commercial electronic message constitutes a crucial point of this new regime. The Act allows any person suffering a loss or harm as a result of non-compliance with the provisions of the Act by the sender of a commercial electronic message to apply to a court of competent jurisdiction for a judgment ordering the sender to pay him or her the amount of such damages, plus liquidated damages of up to $1,000,000. For instance, the recipients of a spam message who suffer damages after relying on misleading information found therein may institute a class action to pursue their common claims on the basis of this new Act.CONCLUSIONUnsolicited electronic messages are a nuisance which warrant action. Canada is the only G8 jurisdiction which had not yet taken specific measures to regulate or prohibit spam messages. However, the obligation to obtain the consent of the recipients of commercial electronic messages, who in most cases have nothing to do with the spam messages, will constitute a difficult and costly burden for many businesses.It is therefore important that businesses review their electronic mailing lists to ensure that they comply with the provisions of the Act, namely, that the persons whose names are included have given their express consent to receive commercial electronic messages from the businesses or that the businesses can rely on the implied consent of such persons, failing which the businesses will have to obtain adequate consents. Again, contravening businesses will be liable to substantial penalties and claims which may exponentially increase through class actions involving hundreds if not thousands of recipients who allege that they suffered damages._________________________________________1 S.C. 2010, c. 23.2 S.C. 1993, c. 38.

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  • The Supreme Court invalidates Alberta’s personal information protection act : What impact will this have elsewhere in Canada?

    On November 15, 2013, the Supreme Court of Canada declared Alberta’s Personal Information Protection Act (PIPA)1 constitutionally invalid on the ground that it disproportionately infringed a union’s right to freedom of expression, in this case, the United Food and Commercial Workers, Local 401 (the “Union”).2 This case is of particular importance because it raises the issue of Canadian legislatures’ ability to establish a constitutionally acceptable balance between the protection of personal information and a union’s freedom of expression.THE BACKGROUNDThe events giving rise to the case occurred in 2006, during a lawful strike by the employees of the Palace Casino at the West Edmonton Mall (the “Employer”) that lasted 305 days. During the course of this lengthy labour dispute, both the Union and a security company hired by the Employer videotaped and photographed the picket line. Signs placed in the picketing area stated the Union’s intention to publish images on the Internet of individuals crossing the picket line. While no images were posted on the Internet, the Union nevertheless used certain photographs to prepare pamphlets, newsletters and posters.Several individuals who had been videotaped or photographed crossing the picket line filed complaints to the Alberta Information and Privacy Commissioner under PIPA. The adjudicator, who was appointed by the Commissioner to decide on the complaints ruled that no provision of PIPA authorized the Union to collect, use or disclose personal information for the purpose of advancing its interests. Consequently, she ordered the Union to stop collecting the personal information without the consent of the individuals in question and to destroy any material in its possession that contravened PIPA. It should be noted that, under Alberta law, the adjudicator did not have jurisdiction to rule on the constitutionality of PIPA.Following the judicial review of the adjudicator’s decision, the judge of the Alberta Court of Queen’s Bench accepted the Union’s arguments and ruled that PIPA unreasonably infringed the Union’s freedom of expression as guaranteed under s. 2(b) of the Canadian Charter.3 On appeal from this judgment, the Court of Appeal agreed with the Court of Queen’s Bench and ruled that the infringement of a union’s freedom of expression is not justifiable in a free and democratic society.4 It therefore granted the Union a constitutional exemption from the application of PIPA.THE DECISION OF THE SUPREME COURT OF CANADAIn a unanimous judgment written by Justices Abella and Cromwell, the Supreme Court agreed with the Court of Appeal. It stated that videotaping and photographing persons crossing a picket line – as well as possibly using or distributing these images – were expressive activities carried out for legitimate purposes, in this case, to deter people from crossing the picket line and to inform the public about the strike.5 It also noted that those crossing the picket line could reasonably expect to be videotaped or photographed and have their image disseminated. The Supreme Court emphasized that, in the case at bar, the personal information collected, used or disclosed by the Union did not contain any intimate details about the lifestyle or personal choices of the individuals in question.6Canada’s final court of appeal then performed a detailed review of PIPA in order to understand how it limited the Union’s expressive activities. It concluded that PIPA has a much broader scope than the federal statute that inspired it. Unlike the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”),7 PIPA does not apply solely to activities undertaken for commercial purposes. In fact, except to the extent provided by PIPA, it “applies to every organization in respect of personal information”.8Despite the numerous exemptions restricting the scope of PIPA, none of them applied so as to allow the Union to collect, use and disclose personal information for the purpose of advancing its interests and expressing its views on “matters of significant public interest and importance”.9 Consequently, the Supreme Court concluded that PIPA infringed the Union’s freedom of expression.The Court then analysed s. 1 of the Charter, pointing out the important role of unions in Canada’s economy and emphasizing that a union’s freedom of expression is an essential component of labour relations. The Court further stated that picketing represents “a particularly crucial form of expression with strong historical roots”.10 Given the Court’s opinion that PIPA does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation, and given the breadth of the restrictions imposed on the Union’s freedom of expression, the Court ultimately concluded that the adverse effects of PIPA were disproportionate to its benefits.At the request of the Alberta Attorney General and the Privacy Commissioner and “given the comprehensive and integrated structure of the statute”,11 the Supreme Court declared the entire statute invalid, but suspended the effect of the declaration of invalidity for a period of 12 months in order to give the Alberta legislature the opportunity to determine how to bring the legislation in compliance with the Charter.THE FORESEEABLE CONSEQUENCESWe must now consider the following question: What impact will this decision have on PIPEDA and on the Quebec and British Columbia statutes governing the protection of personal information in the private sector?It should be noted that, like Alberta’s PIPA, the Quebec and British Columbia statutes relating to the protection of personal information in the private sector apply to unions and are not limited to commercial activities. As for PIPEDA, it is worth noting that it also applies to labour relations involving firms under federal jurisdiction.Moreover, none of these statutes provides for an exception to the general rule requiring that the collection, use and disclosure of personal information be authorized by the person in question, so as to take into account freedom of expression. In Quebec, section 1 of the Act respecting the protection of personal information in the private sector12 contains a specific rule of interpretation that concerns freedom of the press, but it does not apply to freedom of expression in its broadest sense. Moreover, the narrow interpretation attributed over the years by the Commission d’accès à l’information and the courts to the concept of “personal information”, without regard to the notion of privacy13, does not leave much room to consider freedom of expression.In this context, we believe there is a very good chance these statutes will be successfully challenged, unless the legislature takes prompt action to make the necessary adjustments.We will closely monitor any legislative amendments and jurisprudential developments likely to result from this recent Supreme Court decision._________________________________________ 1 S.A. 2003, c. P-6.5.3 Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (hereinafter “Alberta v. UFCW”).3 United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), 2011 ABQB 415.4 United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), 2012 ABCA 130.5 Alberta v. UFCW, supra, note 2, at par. 11.6 Id., at par. 26.7 S.C. 2000, c. 5.8 Alberta v. UFCW, supra, note 2, at par. 15, citing s. 4(1) PIPA.9 Id., at par. 27.10 Id., at par. 35.11 Id., at par. 40.12 CQLR, c. P-39.1.13 On this point, see Raymond Doray and François Charette, Accès à l’information: loi annotée, jurisprudence, analyse et commentaires, Cowansville, Éditions Yvon Blais, loose-leaf edition, updated to September 1, 2013, vol 1, p. III/54-5 and III/54-6.

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  • Legal newsletter for business entrepreneurs and executives, Number 16

    CONTENTS  Some practical advice on the recording of customer phone calls in Quebec Employment placement agencies : who is responsible for the source deductions? What are your recourses if you believe a contract is about to be, or has been, awarded to another bidder?  SOME PRACTICAL ADVICE ON THE RECORDING OF CUSTOMER PHONE CALLS IN QUEBECGuillaume LabergeMany businesses engage in the practice of recording customer calls. They do so for various reasons, including to verify quality of service, to handle complaints or to train employees.Because these recordings contain customers’ personal information, certain precautions must be taken in the collection and retention of such information, especially since the subsequent use thereof, without a customer’s consent, may infringe on his privacy rights.1The Québec Act Respecting the Protection of Personal Information in the Private Sector2 (“APPIPS”) does not govern this process and, to the best of our knowledge, the Commission d’accès à l’information du Québec has not yet ruled on the issue.The Office of the Privacy Commissioner of Canada has published Guidelines for Recording of Customer Telephone Calls3 for private sector companies operating in Canada. Given that the obligations imposed by the Personal Information Protection and Electronic Documents Act4 (“PIPEDA”) are substantially the same as those imposed by APPIPS, it is our opinion that the federal guidelines should be followed by Québec companies.The Office of the Privacy Commissioner is of the view that the recording of customer calls is permitted under PIPEDA subject to compliance with certain requirements, applicable both to incoming and outgoing calls.First, the collection of information must be motivated by a specific purpose. In Québec, the APPIPS expressly provides that, “[a]ny person collecting personal information to establish a file on another person or to record personal information in such a file may collect only the information necessary for the object of the file”5. This suggests that the use of such recordings for purely administrative purposes would be difficult to justify in view of this requirement. Customer service representatives must exercise caution when recording phone calls and must refrain from asking questions or making comments that could result in the collection of information that is unrelated to the reasons for recording the call.Federal guidelines also stipulate that in order to comply with PIPEDA, it is necessary to inform the person, at the outset, that his or her call may be recorded. A customer’s consent may be obtained in several ways. He or she can be verbally advised either by an automatic recording or by a customer service representative. According to federal guidelines of the Commissioner, a clear statement by the company printed on customers’ monthly statements could also suffice.Furthermore, a reasonable effort must be made to inform the customer of the reasons for the recording. It is important to note that the company must communicate clearly the real reason. It cannot claim, for example, that the recording is for the purpose of quality control when in fact it will be used to fulfill other objectives, as legitimate as those may be.However, a caller’s tacit consent may be inferred if, knowing the conversation is being recorded for a particular purpose, the caller does not object thereto and continues the conversation. If the caller refuses to allow the recording, he must be offered certain practical solutions, such as to not have the call recorded, to present himself at the nearest branch or point of sale, or to submit a complaint, question or comment online or by mail. In our opinion, it is not necessary that these options be presented at the outset of each call but they can be outlined in the company’s privacy policy, for example, or as a stipulation appearing on customers’ monthly statements.Notwithstanding a few exceptions, telephone conversations cannot be recorded without the express or implied consent of the person whose personal information is being collected. Included in the exceptions, under PIPEDA, consent is not required when the purpose of the recording is debt recovery or investigation of potential fraud. In such circumstances, the need to obtain consent could adversely affect the company’s ability to obtain accurate information.Lastly, the guidelines only address the protection of personal information of customers. However, the recordings may also infringe the privacy rights of employees. Therefore, employees should also be informed of the practice and the reasons for the recording._________________________________________1 Civil Code of Québec, S.Q. 1991, c. 64, arts. 35 and 36.2 R.S.Q., c. P-39.1.3 Office of the Privacy Commissioner of Canada, Guidelines for Recording of Customer Telephone Calls, June 10, 2008, available online: https://www.priv.gc.ca/resource/fs-fi/02_05_d_14_e.asp4 S.C. 2000, c. 5.5 Section 5, APPIPS.EMPLOYMENT PLACEMENT AGENCIES: WHO IS RESPONSIBLE FOR THE SOURCE DEDUCTIONS?Carolyne CorbeilQuebec employers are increasingly resorting to placement agencies to quickly meet their need for occasional workers. While this new business model is gaining in popularity and offers many advantages, it also upsets the traditional bipartite “employer-employee” relationship. Thus, since the placement agency functions as an intermediary between the client and the worker, a tripartite employment relationship is created. This raises the issue as to whether the employer-employee relationship remains intact and, if so, then who is responsible for the source deductions. The Court of Québec recently answered these questions in the case of Agence Océanica inc. v. Agence du revenu du Québec.1FACTSIn this case, the placement agency, Océanica (hereinafter “Océanica”), was in the business of providing nursing staff for the short-term needs of hospitals, residential and long-term care centres (CHSLDs) and local community service centres (CLSCs) (hereinafter the “clients”). It operated as an intermediary between the clients and nurses: clients informed Océanica of their nursing staff requirements and Océanica did the recruiting. At the clients’ workplace, the nurses received their instructions from the clients, particularly in terms of the duties to be performed by them and their work methods, acting under the clients’ supervision. Océanica billed the clients for the nurses’ compensation, plus an amount for Océanica’s profit margin. Based mainly on the testimony of the nurses working for Océanica, it was apparent that they had no written employment contract with Océanica, they bore no risk of profit or loss, and they paid for their employment expenses themselves, without reimbursement by Océanica.Océanica considered the nurses to be self-employed workers rather than employees. Thus, the compensation paid to the nurses would not be subject to the applicable source deductions in Quebec, i.e. for the QPP (Québec Pension Plan), QPIP (Québec Parental Insurance Plan), HSF (Health Services Fund) and CNT (Commission des normes du travail).On the other hand, the Agence du revenu du Québec (hereinafter the “ARQ”) submitted that the nurses were not self-employed workers, but rather employees, and therefore assessed Océanica for the amounts due, plus penalties and interest, on account of the aforementioned source deductions on the compensation paid to the nurses.Océanica appealed the assessment by the ARQ to the Court of Québec for a ruling on whether the nurses were employees or self-employed workers.THE COURT OF QUÉBEC’S DECISIONAfter conducting a general review of the definitions of the concepts of employer and employee under various tax statutes, the Court admitted that there was not much substance to these definitions and that they were not very helpful in characterizing such a complex relationship as the one that existed between Océanica and its nurses. Nevertheless, the Court found that the payment of compensation was of particular importance for a person to qualify as an “employer” for purposes of the Taxation Act2 (Quebec).As for the concept of the employment contract under the Civil Code of Québec,3 the Quebec case law has noted on many occasions that it must be analyzed on the basis of its three components, namely the performance of work, the compensation, and the relationship of subordination between employer and employee, with subordination being the main criterion for a finding of employee status. However, in the context of a tripartite relationship involving an intermediary, as opposed to the classic employment relationship between two parties, determining who is the true employer based on the subordination criteria may be difficult. Instead, a more general and broader analysis of the criterion of the employees’ legal subordination must be conducted and other criteria should also be considered, such as the selection of the employees, hiring, training, discipline, evaluation, etc. Thus, the Court took a more general approach to the relationship between Océanica and its nurses which was not limited to the nurses’ functions and to the degree of supervision exercised by Océanica over them.The fact that some of the classic functions of the employer (i.e. recruiting, training and supervision) were shared between Océanica and the clients did not change the nature of the nurses’ work per se. Indeed, if the clients had not been there to offer employment and Océanica had not functioned as the link between the clients and nurses, the nurses would have been unable to offer their services. The nurses were integrated into the clients’ businesses and acted under their supervision. The nurses were not administering a business. To claim that the nurses were self-employed workers because Océanica, by itself, did not fulfill all the attributes of a classic employer would have led to an absurd result. For these reasons, the Court held that it was an error to claim that Océanica’s nurses were self-employed workers.Therefore, the Court found that the nurses were employees of Océanica. Indeed, the judge stated that by inserting itself into the classic relationship between the clients and the nurses, Océanica assumed some of the employer’s functions, such as the recruiting and payment of the nurses’ compensation. In this regard, the Court found that Océanica acted as the clients’ mandatary and had entered into binding obligations on their behalf. As a result, Océanica became responsible for the clients’ tax liabilities, in accordance with the concept of mandate set out in the Civil Code of Québec.4COMMENTSThe Court essentially took a two-pronged approach to this decision. Firstly, it dismissed Océanica’s argument that the nurses were self-employed workers. Secondly, since the nurses were found to be employees, the Court had to determine who was liable for the source deductions. The Court strongly emphasized the role of the person paying the compensation in reaching the conclusion that the nurses were employees of Océanica, since Océanica paid them their wages directly.At first sight, this decision confirms the role of the employment agency as an employer of workers and its obligation to make the source deductions in Quebec from the compensation paid to them. Thus, employment agencies should remember that they must be vigilant with respect to the status of their personnel and the tax obligations for which they are responsible.However, the Court’s conclusion regarding the mandator-mandatary relationship between Océanica and the clients may lead to confusion. Indeed, it is unclear what effect this conclusion would have in a situation in which the placement agency is delinquent and fails to make the requisite source deductions.Finally, it should be noted that Océanica has appealed this decision to the Québec Court of Appeal. Hopefully, the Court of Appeal will take the opportunity to clarify the conclusion of the Court of Québec. We will be following these developments closely. Until then, caution is advised..._________________________________________1 2012 QCCQ 5370.2 R.S.Q., c. I-3 and amendments.3 S.Q. 1991, c. 64 (“C.C.Q.”).4 Article 2157 C.C.Q.WHAT ARE YOUR RECOURSES IF YOU BELIEVE A CONTRACT IS ABOUT TO BE, OR HAS BEEN, AWARDED TO ANOTHER BIDDER?Julie CousineauQuestions concerning the legality of the call for tenders process are regularly submitted to the courts. Obviously, when the contract contemplated in a call for tenders is important, each of the businesses that went through the process will have an interest in, and will want to obtain, the contract.What should you do if your business is not awarded the contract you wanted so badly? Below is a brief description of the legal remedies available in light of the recent case law. It should be noted that the remedies described below can be instituted against any business, whether public or private. However, in the case of an action against the government itself, it will not be possible to institute injunction proceedings, but it is possible to obtain a safeguard order in very exceptional circumstances. (We will not consider those circumstances in this article.)Firstly, before anything else, you must ensure that you responded to all the requests and formalities set out in the call for tenders. It goes without saying that the courts will not be able to sanction the party contracting out the work (the client) at the behest of a bidder that did not comply with the rules laid down in the call for tender documents.1GENERAL RECOURSE: DAMAGESSeveral recourses are available to aggrieved bidders. Most often, they will institute an action in damages seeking compensation for the losses they have suffered and profits they were deprived of. The bidder’s lost profits must be proven with well-documented evidence to obtain the amounts claimed, and will not be awarded unless it is clearly proven that the bidder ought to have received the contract. Note that the evidence of damages generally requires the disclosure of sensitive information belonging to the aggrieved company, such as profit margins or financial statements.Furthermore, in the event that a bidder participates in a second call for tenders launched by the client after participating in a first call for tenders (where the first call for tenders was canceled), if the bidder subsequently institutes an action in damages based on the first call for tenders, it may be dismissed on the grounds that the bidder waived this recourse when it decided to bid in the second call for tenders.2APPLICATION FOR A DECLARATORY JUDGMENT OR ACTION IN NULLITYSometimes, an aggrieved bidder may wish to apply for a declaration by the court that the client did not comply with the tender process or that the process should be annulled, particularly in cases where the client is a public entity subject to a special statute establishing a framework for the call for tenders process (e.g. Cities and Towns Act, Act Respecting Contracting by Public Bodies). In such cases, the bidder may institute an action for a declaratory judgment or an action in nullity seeking a declaration that the tendering process engaged in is null and void. The main purpose of such actions is to obtain an answer to a clear question submitted to the court.INJUNCTION OR APPLICATION FOR A SAFEGUARD ORDERAn aggrieved bidder may also apply to the court for an injunction or safeguard order to suspend a tender process that is underway (temporarily and incidentally to another action or on a permanent basis). However, it is important to know that it is difficult to succeed in an injunction action, among other things, because the criteria for a successful injunction are somewhat difficult to meet in the context of a call for tenders. Injunctions are an exceptional remedy and, since the courts have the discretion to grant or refuse them, they will frequently be reticent to intervene in a process governed by rules laid down in a statute or by the parties.To obtain an injunction order, the following criteria must be met: a prima facie case, serious or irreparable harm, and the balance of convenience.A prima facie case is met, in particular, where the applicant (the aggrieved bidder) proves to the court that the process does not comply with the applicable statutes (particularly in matters involving a public body), the client has failed to comply with the very process it put in place, or there is a major irregularity in this process. Indeed, the principle of the equality of bidders is a basic principle in tender matters that has been reaffirmed on many occasions by the courts. By itself, this criterion is generally not too difficult to meet.3Once a prima facie case has been established, the bidder must show that it would suffer irreparable or serious prejudice, i.e. which is not compensable in damages. This criterion is more difficult to meet because, in several cases submitted to the courts, they have concluded that the prejudice was ultimately compensable in damages based on the profits which the applicant bidder hoped to make. Note that the loss of expertise where the contract is awarded to the bidder’s competitor instead of the bidder, and the difficulties in assessing the amount of damages (due to mathematically complex calculations) were not found to be irreparable prejudice by the courts.4 On the other hand, where the bidder can show that his business is at risk of shutting down, the courts will be more inclined to issue the order.5Finally, if the court finds that the right on which the applicant is relying is not perfectly clear, it must decide which of the parties would suffer greater inconvenience if the order is rendered. In this regard, it should be noted that if the call for tenders involves a public body, it will benefit from a presumption that the contract contemplated in the call for tenders is made in the public interest. In such a case, it will be easier for the public body to turn the balance in its favour as compared with a private interest. On the other hand, there have been some cases involving public bodies in which the illegality committed by the public body was so great that the court concluded it was in the interest of the parties and the public to obtain a ruling on the issue of legality, while suspending the process in the meantime.6Finally, the court will also consider whether there is sufficient urgency at certain stages of the application for an injunction or safeguard order.CONCLUSIONIf you feel that you have been wronged in the context of a call for tenders, it is important to quickly assess the solutions available to you. Depending on the facts and legal issues involved, one remedy may be more appropriate than another. In any case, to benefit from all the possible remedies, you should not wait too long before evaluating which solution is best for you._________________________________________1 Simplex Grinnel inc. v. Cégep de Sainte-Foy, 2012 QCCS 4512.2 Entreprises Léopold Bouchard et Fils v. St-Tharcisius (Municipalité de ), 2012 QCCS 4071 (appeal filed).3 RJR McDonald v. Canada (P.G.), [1994] 1 S.C.R. 311, p.46.4 Entrepreneur général Uuchii inc. v. Québec (Procureur général), 2012 QCCS 4500.5 Orthofab v. Régie de l’assurance maladie du Québec, 2012 QCCS 1876.6 Ibid, note 5.

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