A lawsuit by the Quebec and Montreal Bars to compel the Quebec government to implement measures to ensure the legal equivalence of the French and English-language versions of Quebec statutes was quietly settled out of court.
Legislation
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Quebec cannabis bill disappoints employers
Employers are disappointed that the Quebec government failed to provide new rules and guidance under its recently unveiled legal framework for the consumption, sale and distribution of marijuana, according to employment and labour lawyers. -
Family law reform dropped by Quebec government
A government-mandated committee report that called for sweeping reforms of Quebec’s family law regime has all but been sidelined, making it the second the comprehensive report that the Quebec government has quietly shelved over the past month.
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Physician-assisted dying: “Where do people really want to draw that line?”
Margaret Somerville’s fears appear to be coming true. The founding director of the McGill Centre for Medicine, Ethics and Law predicted that the passage of the Quebec Act Respecting End-of-Life Care would inevitably create a slippery slope. The ethicist asserts that once “the clear line of inflicting death” is crossed, euthanasia will inexorably be extended to a much wider range of people initially covered by the controversial law.“The combination of an ageing population, scarce and very expensive healthcare resources and euthanasia is a lethal combination,” Somerville, who now teaches at Western Sydney University, told me. “People used to say you can’t talk about cost savings, that this will never be used for cost savings. But in the last couple of years it has entered into the conversation.”
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Anti-Money Laundering regulations: FINTRAC issues guidance
Six months after new anti-money laundering regulations were introduced, Canada’s financial intelligence group issued new guidelines dealing with so-called politically exposed persons and heads of international organizations. -
Quebec plans environmental overhaul
A long-awaited ambitious bill introduced by the Quebec government has been guardedly welcomed by business and environmentalists alike as it is expected to simplify the provincial environmental approval regime by making it clearer, more efficient, more predictable and more transparent. -
New Quebec ethics bill raises concerns
A bill introduced recently by the Quebec government that aims to fortify governance and ethics in professional corporations, better protect the public, and encourage professionals to denounce reprehensible acts has been praised but also drawn concerns from disciplinary law experts.
Bill 98, a piece of legislation that acts on four of the 60 recommendations made by the Charbonneau’s Commission’s report on granting and management of public contracts in the construction industry, will bolster the powers of the regulatory body that oversees Quebec’s 46 professional corporations, including lawyers and accountants, will hand more discretionary powers to the syndic or ethics officer, and will under certain circumstances provide protection to whistleblowers.
If passed, the bill would allow the Office des professions to launch its own investigations without having to obtain prior approval from the Quebec Minister of Justice, enable it to determine through regulations the “standards of ethics” and professional conduct applicable to directors of professional corporations, and allow it to issue orders to boards of directors to take corrective measures.
Bill 98 would also make ethics and professional conduct training mandatory for aspiring professionals seeking admission into a profession, and require professional corporations to offer the training to its members. The bill would also require boards of directors of a professional corporation to receive training on the role of a board of directors, including training on governance and ethics.
“The bill is a follow-up to the Charbonneau Commission which raised awareness among different decision-making bodies over the importance of creating a culture of ethics and integrity in our society,” remarked Marie Cossette, Ad. E., an administrative law expert who heads the business integrity group for Lavery, de Billy in Quebec City. “The bill will not change attitudes but it is a step in the right direction. It fosters training and gives professional corporations powers to allow them to play an increased role in monitoring.”
The boards of directors of small professional corporations stand to benefit the most from training in governance and ethics, said Francis Gervais, Ad. E., a Montreal lawyer with Deveau, Gagné, Lefebvre, Tremblay & associés. Many directors in small professional corporations do not realize “what it means to be part of a board of directors” and fail to grasp the nature of their responsibilities, added Gervais. “It’s not a private party or something that is added to one’s curriculum vitae,” said Gervais, a former president of the Quebec law society. “There is important work to be done when one is a member of a board of directors.”
More controversially, Bill 98 also grants syndics of professional corporations the power to confer immunity to professionals who come forward to report irregular situations even though they may have taken part in the reprehensible act. One must protect whistleblowers to foster integrity, said Cossette, adding that often times the only way to discover wrongful acts is through whistleblowers. “By valuing whistleblowing and protecting whistleblowers, with appropriate mechanisms in place to avoid witch hunts, it will create a zero tolerance climate towards unethical conduct,” said Cossette.
While there is a need for whistleblowers to denounce objectionable acts, Gervais is uncomfortable with the notion that professionals may be granted full immunity for acts that they have may have had a hand in. Bill 98 doubles the size of fines that can be imposed on professionals to at least $2,000 but not more than $25,000 for each offense “to give the image that we want to be severe” towards professionals yet provides an opportunity for professionals to obtain immunity, noted Gervais. “ I am troubled by the notion that a person who participated in a reprehensible act could obtain full immunity,” added Gervais.
Rather than providing the possibility of granting immunity to professionals who have committed wrongdoing, citizens who lodge a complaint before a syndic against a professional should benefit from immunity, said Martin Courville, a Montreal lawyer with De Chantal, D’Amour, Fortier Avocats. He now has a case in which a citizen, who lodged a complaint with a syndic against a professional, is facing a lawsuit for harm to the professional’s reputation after the complaint was dismissed by the disciplinary council. “It appears we are going to be granting immunity to professionals who participated in an infraction but it seems to me that consumers who lodge complaints that ends up before a disciplinary committee deserve immunity,” said Courville.
Moreover, Bill 98 provides no guidance over the criteria that ethics officers should take into consideration before granting immunity, added Gervais. “The syndic is lord and master of the decision to grant immunity,” said Gervais. “But what are the criteria? Can the decision be revised? Can the syndic’s decision be appealed? Can the professional corporation review the ruling. This idea needs to be refined before it is put into application.”
Bill 98 will also contentiously empower syndics to request disciplinary councils to impose either a suspension or provisional restriction of the professional’s right to practice or use a reserved title in cases when proceedings are instituted for an offence punishable by five or more years of imprisonment. While ethics officers already had the power to request provisional revocation under certain circumstances when the protection of the public was at stake, the bill will make it easier for syndics to obtain their petition, said Cossette, who views this as a positive development.
Other lawyers specializing in disciplinary law are concerned with this provision of Bill 98. According to Montreal lawyer Jean-Claude Dubé, Bill 98 will hand syndics, already vested with formidable powers, with even more powers to the detriment of professionals. “Syndics will hold all the cards while professionals will have little recourse,” said Dubé. Gervais concurs, adding that Bill 98 is silent about the presumption of innocence and the right to silence protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. “What am I going to do to defend myself before a syndic when nothing is mentioned in the bill over the presumption of innocence, the confidentiality of information, in camera proceedings if applicable, or whether decisions will be motivated? I hope hearings on the bill will bring clarifications,” said Gervais.
But Cossette counters that the presumption of innocence and the right to silence does not to be codified to exist. “It will be up to the professional to gauge his options and determine how he wants to ensure the respect of his rights,” said Cossette. “Perhaps the new provisions will be attacked constitutionally. Having said that, this is an issue about reasonableness in relation to the pursued objective of the legislator who wants to respond to the population’s expectation regarding regulatory matters.”
This story was originally published in The Lawyers Weekly.
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Quebec plans to order ISPs to block unlicensed gaming sites
A controversial bill tabled by the Quebec government that will compel Internet service providers to block unlicensed gambling websites is an expensive, futile, and unconstitutional endeavour that raises concerns about the neutral role of Internet providers, according to gaming and telecommunication experts.
The proposed legislation, tabled last November, will amend the province’s Consumer Protection Act and require Internet service providers (ISPs) to “block access” to a list of “unauthorized gambling sites” that will be drawn up by Loto-Québec, a government agency that operates and develops lotteries in the province. Internet service providers face steep fines — up to $100,000 and twice that amount for subsequent offences — if they fail to comply.
“It is absolutely urgent that anyone looking at this oppose this,” remarked Bram Abramson, the chief legal and regulatory officer at TekSavvy, an independent Canadian ISP. “Clearly it would establish precedence. It would be the first time that any Canadian government has ordered ISPs to routinely block content and to engineer our networks in such a way as to be able to block content in this routine manner. That’s not the kind of Internet that Canadians want.”
The contentious plan is being closely watched by other provinces who have, with the exception of Saskatchewan, online gaming offerings. Like Quebec, British Columbia, Manitoba and Ontario offer a full slate of online casino-style gambling while the Atlantic Lottery Corp. which oversees gaming for New Brunswick, Newfoundland and Labrador, makes lottery tickets and sports betting available on the Internet. Much is at stake. H2 Gambling Capital, a leading supplier of gambling data and market intelligence, predicts that the value of the global online casino and bingo market will surge to approximately US$13.5 billion by 2018, representing a compound annual growth rate of more than 10 per cent from 2014. The Quebec government predicts that by directing online gambling to its own website, Espacejeux, that it will bring in an additional $13.5 million in revenues in 2016-17, and $27 million annually after that.
“The landscape for gaming in Canada is going to change very shortly,” predicted renown Montreal gaming lawyer Morden Lazarus. “The provinces have decided that they want to get into online gaming and they want to be able to generate these revenues for their own benefit. The Quebec government is leading the charge.”
The Quebec initiative however will likely end up before the courts, according to legal observers. Quebec is moving forward under the guise of improving public health. According to the 2015-16 Quebec budget, “illegal websites do not apply the same responsible gaming rules as Espacejeux,” and that poses a risk to the population, especially young people. Since it will enact the new provisions under the Quebec Consumer Protection Act, the provincial government is also expected to argue that establishing a firewall to prevent online gaming competitors is a matter of consumer protection, which falls under the jurisdiction of provinces.
But industry observers don’t buy that reasoning. The Quebec bill clearly breaches federal jurisdiction over telecommunications, pointed out Chris Tacit, a telecommunications lawyer based in Ottawa. It also appears to infringe s. 36 of the federal Telecommunications Act, which prevents Canadian carriers from controlling the content or influencing the meaning or purpose of telecommunications, added Tacit. “What is an ISP supposed to do it if it is ordered to block unlicensed gambling websites by the Quebec government which under s.36 of the Telecommunications it is prohibited from doing,” asked rhetorically Tacit. “It is an untenable situation. This can only lead to litigation.”
ISPs are “content neutral” utilities that simply provide access to a service, and are not in the business of picking and choosing what Canadian consumers should have access to, added Abramson. If the Quebec initiative goes unchallenged, Abramson fears that other provinces may follow suit and would be emboldened to establish different telecommunication regulatory rules that would likely differ from one province to another. “I have no doubt that if this were allowed to proceed, other provinces will follow,” said Abramson.
Critics also point out that the proposed legislative scheme amounts to censorship, likely infringes the Canadian Charter of Rights and Freedoms, and sets a dangerous precedent. The bill would unlikely be able to survive a freedom of expression challenge, and Quebec would have a hard time arguing that compelling ISPs to block unlicensed gambling websites is a reasonable limitation. “Just imagine it wasn’t about gambling,” observed Timothy Denton, a CRTC commissioner from 2008-2013. “Suppose it was about being unable to reach controversial political websites, people would be up and screaming about it. But because it concerns the vice of gambling, it’s more defendable in public.” Or as Tacit pointed out, if the Quebec government can get away with blocking online gaming websites, “what lays next?”
The lack of clarity in the bill also poses problems, said gaming lawyer Stuart Hoegner. Bill 74 does not define what wagers and bets are. Nor does it spell out whether the definition will be identical to the one found in the Criminal Code of Canada or whether the Quebec government will forge ahead and establish a new definition of wagers and bets. And while the bill plainly states that an ISP may not “give access” to an online gambling site whose operation is not authorized under Quebec law, it does not define what the term access means, added Hoegner. “The term access is pretty broad,” remarked Hoegner. “What if an ISP makes good faith efforts to block but a customer circumvents it? Have they violated that provision or is there a safe harbour? We don’t know.”
Forcing ISPs to establish firewalls on unauthorized online gambling sites would also be very expensive because it would require “wholesale changes” to telecommunication networks, said Abramson. “It’s very difficult to do what is being asked because in many cases telecommunication networks do not treat Quebec as a distinct network. That would require some re-architecture – and that’s expensive,” explained Abramson. It would also be for naught, given the porous nature of the Internet. Growing numbers of Canadians are becoming increasing familiar with virtual private networks (VPNs) to skirt around intellectual property protections governing websites such as Netflix, and gambling aficionados will not hesitate to dodge restrictions the Quebec government may try to impose on them, added Abramson.
A working group that studied the issue of online gambling for the Quebec government already provided the framework that would allow the Quebec government to recoup more monies from online gambling, without having to resort to ISPs, remarked Lazarus. Ironically the 2014 “Report of the Working Group on Online Gambling” does not recommend the “systematic filtering of illegal websites.” Instead it recommends either the creation of a portal through which private operators can offer online gambling to Quebecers or establishing a licensing system, which is favoured by many jurisdictions around the world.
Under the portal model, the Quebec government would be held responsible for the management of online gambling offerings by establishing standards and precise rules in order to comply with s. 207(4)(c) of the Criminal Code, which allows only for provinces to set up and operate a lottery or game of chance on or through a computer. Under the portal model the government would also have to define gaming compliance rules, the rate of returns, the types of games offered, and security measures pertaining to fraud and money laundering. “Going the ISP route will cause more anguish and more issues more than anything else,” said Lazarus. “They should focus on the creating a process where online gaming providers provide managed services to the province, and all of the activity will go through the provincial government’s portal.”
In the meantime, the Quebec government can expect ISPs to fight back if they follow through with their controversial proposal. “This has not made the Quebec government popular among a lot of telecommunication providers,” said Abramson. “It is just a very surprising initiative, especially one that is so clearly outside their jurisdiction, that is so expensive, and likely to be ineffective.”
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Quebec government consolidates employment and labour boards
In a move applauded by business and denounced by labour, the Quebec government has created a new labour, employment and workers’ compensation tribunal and consolidated several employment and labour boards into a single administrative body in a bid to streamline government services and modernize and improve the efficiency of the province’s administrative justice system. (more…) -
Quebec regulates virtual currency ATMs and trading platforms
In a move that caught the business and legal community by surprise, Quebec became the first jurisdiction in Canada to regulate the digital currency sector by requiring businesses that operate virtual currency automated teller machines or trading platforms to obtain a licence to operate in the province.
But the recently published amendments to the Policy Statement of the Money Services Businesses Act (Act) by Quebec’s financial watchdog has drawn criticism from industry observers who assert that it is brimming with ambiguities and risks hindering the burgeoning digital currency industry.
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Protocol amends Canada – UK tax treaty
After more than two years of negotiations, Canada and the United Kingdom signed a protocol to amend a tax treaty between the two countries that adds a new “exchange of information” provision and a new clause that would allow a tax authority from one country to “enter the other” to conduct tax audits.The 12-page protocol, which came into force just before the Christmas holidays, permits an authorized tax representative from the U.K. to enter in Canada to interview individuals or even examine a person’s books and records.
“It used to be that foreign tax debt was viewed as essentially not enforceable in other countries so absent a law imposed through the enactment of a treaty, the Canadian courts would by and large not assist a foreign government in collecting from a Canadian resident,” pointed out Charles Taylor, a partner with Deloitte. “Now, as governments are intent on preventing fiscal evasion, they have agreed to help each other and we have a provision in the protocol that essentially says the two governments will assist in the collection of taxes covered by the convention.”
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Federal government unveils new corporate social responsibility policy for extractive sector
Less than a month after the federal government introduced a new transparency law that that will require oil, gas, and mining companies in Canada to disclose their payments to governments around the world, Ottawa announced that it intends to punish companies in the extractive sector that do not adhere to its new corporate social responsibility policy by withdrawing Canadian diplomatic and economic support.The new corporate social responsibility (CSR) strategy redefines the role of the Office of the Extractive Sector CSR Counsellor, introduces new international best practices extractive companies should adopt, and for the first time links Canada’s “economic diplomacy” assistance in foreign jurisdictions to a company’s adherence to the new policy. While the federal government has been lauded for its efforts, legal observers have voiced concerns over the lack of guidance and legislative framework surrounding the new strategy.
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Quebec’s anti-corruption law proves to be a niche market for accounting firms
Quebec’s anti-corruption law, adopted more than a year ago in the wake of allegations of bribes, collusion, influence peddling, and widespread corruption in the construction industry, is proving to be good business for accounting firms.
Adopted more than a year following the launch of the Charbonneau Commission, a public inquiry mandated to examine potential corruption in the awarding and management of public construction contracts, the Integrity in Public Contracts Act (Act) compels companies to obtain a seal of integrity if they wish to bid on the billion dollars in contracts awarded annually in the Quebec public sector.
