Businesses in Québec Should Prepare to Deal with “Assistants” to the Elderly

Further to the adoption of Bill 18, Québec individuals, including the elderly, who may wish to do so will soon be allowed to appoint one or two “assistants” to help them -a role that will be legally recognized through an amendment being made to the Civil Code of Québec.

Many feel the various protection regimes currently available for vulnerable individuals in Québec leave a gap, especially for family members wishing to help parents and the like with their everyday lives. This sort of situation often includes helping parents understand situations they may find themselves in, asking questions (from government officials or businesses, for example) and interacting with third parties with which the elderly may be required to deal with day-to-day. A good example may be calling a bank, on behalf of a parent who is a client of the institution but unwilling or unable to call him/herself.

The new role of assistants is being created to help fill that gap and avoid often-seen situations where an organization may refuse to talk to a person who is not the citizen or the client at issue him/herself, unless the caller can show he/she has legal authority. To avoid this problem, assistants will be provided with a special status under Québec law, being understood that their role will NOT be to decide or make decisions for protected individuals, but rather to assist and speak for them, whenever it may be required.

After November 1, Quebecers who regularly require help will thus be allowed to designate a loved-on (who is willing to take on this role) to assist them. After going through the formal process of appointing this person, the name of the assistant will be entered into an online database to be hosted and made available by the Québec Curateur public (pursuant to the new C.c.Q. Article 297.10). Thereafter, anyone who needs to confirm whether a person they get contacted by has been duly authorized (as somebody else’s “assistant”) will be allowed to check the database.

One should note that this possibility will be available not only for the elderly but also for other individuals who would benefit from the help of a loved one day-to-day, including those with physical or intellectual limitations, etc.

This change to Québec law will require that for businesses and organizations update their protocols to take into account the possibility that users and customers may soon be contacting them through duly appointed intermediaries. Whenever this happens, assuming the proper verifications are made, businesses and organizations will be legally prohibited from refusing to interact with a customer’s assistant. Indeed, assuming the identity of the assistant is ascertained adequately, one will then be obligated by the Civil Code of Québec to deal with the assistant as the assisted person’s representative and intermediary.

Business and organizations operating in Québec should start training their staff and update their internal protocols, rules and procedures to allow for this change as to “assistants”.

Businesses within the Province of Quebec Have Homework to Do as to their Employees and their Data

As you may already know, Quebec’s Bill 64 was passed into law a couple of months back, setting in motion a substantial revamp of the province’s main privacy statute. Much like what’s been going on in Europe and, more recently, at Federal level, the province finally decided it was time to update its antiquated statute governing the protection of personal information within Quebec.

The law’s coming into force of an Act to modernize legislative provisions as regards the protection of personal information (the “Act”) will stretch until 2024. In the meantime, the first provisions of the new law came into force last week, including numerous new obligations for Quebec businesses and organizations about their employees.

In practice, until now, little attention was generally paid in Quebec as to rules that may govern and apply to the personal information of employees, an issue that was often swept under the rug. Well, now that the Act is here things have to change -fast.

Indeed, the Act provides for a whole slew of obligations that apply to employers within the province of Quebec. For example, as is the case elsewhere, Quebec organizations should draft and make generally available their data handling policy, including as to how you handle employee information. This is but an example of what the new regime requires.

The first thing quite a few Quebec businesses and organization should do, including relatively small ones, is come to terms with the fact that the world has indeed changed and that Quebec business may no longer look at privacy as this theoretical issue that no SMB really bothers with. With the advent of the Act, all businesses and organization should (quickly) make the transition, from apathy as to privacy, to being highly involved. If you need motivation to do so, the staggering amount of potential penalties provided by the Act should help: 25 MILLION dollars or, and here’s the kicker, 4% of annual revenues. Yup, that’s right, just like Europe did a while back, we’re now realizing that dollar amounts may not be enough, but percentage of revenues, now THAT scares the bejesus out of ANY business.

As to employees, without going into details, to start, you should probably simply understand that personal information is now treated as such, whether it relates to a customer or an employee. Both are individuals, right? So, from now on, the Act basically assumes that organizations should have processes, policies and protocols in place to deal with personal information, wherever it comes in or from -employee-related information including. One should also note as to these, that the Act now requires making these policies generally available, including to employees, so that individuals can know how you are handling their information. Though this may seem a no brainer, in actuality, quite a few Quebec organizations still do not comply with this.

The Act also provides constraints as to how an organization may use automated processing of data to make or reach decisions as to individuals. If your company has AI sorting CVs, for example, individual may have to be made aware of this fact, etc.

One should also make note of the fact that, no only must employees be made aware what information of theirs is collected and used (and how), but employees can now lodge complaints with the Quebec privacy watchdog called the Commission d’accès à l’information (the “CAI”), should they want to question the employer’s data-handling practices, for example, if they suspect their employer’s practices are not in-line with the Act.

As is the case in numerous other jurisdictions, the Act also now provides for a mandatory notification in case of hacking incidents (and similar incidents where personal information may have been compromised), including when it comes to employee information.

Another change mandates that employers (and all organizations in fact) appoint a privacy officer, who will handle personal information-related matters on behalf of the entity, moving forward. This will have to include issues relating to employee information. Such a person may, for example, be a an officer of the company and should, generally, be selected based on his/her ability to deal with eventual issues relating to the types of data that the organization at issue normally handles. In other words, though the Act presumes the president of the company may be the person in charge, he/she may or may not be the best person for the job. All in all, if you are located in the province of Quebec and have employees, you may very well now be subject to the new Act. The time to educate yourself, seek advice and act is… now.

Québec Adopts its Charter of the French Language v. 3.0

The province of Québec recently sought to modernize its Charter of the French Language (the “Charter“), a piece of legislation many Quebecers still call “Bill 101” to this day. After partially amending this statute in 2019, the Québec government overhauled it earlier this month, by adopting Bill 96. Through this bill, Québec is expanding the obligations imposed on organizations and businesses, to use French whenever (and however) interacting with residents of the province.

Though I don’t want to get into all the details this morning, it seems worthwhile to provide you with an overview of the kinds of changes this new version of the Charter brings us, so here it is so as to provide you with an idea of what we’re now facing:

  • A general obligation that all organizations serve their clients in French, by providing them with any and all documents and documentation in French, as the case may be;
  • A major change of the rule as to the display of non-French trademarks, by doing away with the exception relating to the common law trademarks. From now on, only common law trademarks composed solely of French words will be tolerated under the Charter, while the rest of trademarks used in Québec will have to be actually registered to pass muster;
  • Reinforcement of the provisions relating to public display of trademarks (e.g. signage) by now requiring that the overall appearance provide substantially more space to French, as compared to other languages such as English (i.e. store fronts should show about twice as much content in French than other languages, not taking into account the trademark);
  • Introduction of a new rule stating that adhesion contracts must now be available in French as a condition of validity for the contracts that are actually entered into by Quebecers, I including but not limited to those for consumers;
  • Lowering from 50 employees to 25, the threshold above which organizations must adopt and apply a francization program;
  • Adoption of stricter rules as to job postings in French and when an organization may require that job applicants have language skills unrelated to French;
  • Addition of a new rule that all written documents and documentation provided by employers to their employees systematically be in French.

It also seems worthwhile to mention that Bill 96 also adds a very American twist to the Charter, by introducing a private right of action. Once in force, this will allow individuals to sue businesses that violate the Charter, so as to obtain either injunctions or (and yes, this is what’s going to have business owners pay attention) damages and punitive damages. As if often the case whenever such rights are introduced in a piece of legislation, class actions will be the first type of proceedings we can expect them to be used for.

I should mention, finally, that most changes outlined above will not come into effect for 3 years, so as to provide businesses with a transition period during which they can bring their organizations in line with the new rules. So, June 1st, 2025 is the deadline you should remember, to update all your practices and your way of doing things in Québec. Mark your calendars!

So, is your organization in-line with all this? Probably not. If it is not, then you now have less than 3 years to do your homework!