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KEY DEVELOPMENTS FOR 2022

Potential reform to language laws to strengthen the use of French in the province

In 2021, the Quebec Government presented a major reform to the province’s language laws to strengthen the use of French in the province (Bill 96). Bill 96 was originally supposed to have been passed before the end of 2021 but we understand that this has been delayed.

Many additional requirements for employers are expected to result from this Bill, including the following:

• The choice of language provisions in agreements will now only be valid where the signatory was presented with a French version of the document. Therefore, presenting for example an employment agreement to an employee in English only could lead to enforceability issues, regardless of the employee's language preference;

• The obligation to provide documentation to employees in French will be reinforced;

• Employers will now be more limited when requiring the knowledge of a language other than French (such as English) as a requirement of employment. The employer must demonstrate that he has taken the following reasonable steps : (i) assessed the actual language needs for the position; (ii) made sure that the knowledge already required from other employees was insufficient to meet those needs; (iii) has restricted as much as possible the number of positions requiring a specific knowledge of a language other than French.

• Companies with 25 employees or more will now be required to register with the Office québécois de la langue française and go through a francization program. This requirement currently only applies to employers with 50 or more employees;

• Introduction of French language learning services in the workplace.

Employers should be aware that amendments will be made to language laws and monitor the coming into force of such amendments to ensure compliance with all additional mandatory obligations.

Reform of health and safety legislation with the passing of Bill 59

In the fall of 2020, the Quebec Government presented a major reform to health and safety legislation, with the goal of modernizing the occupational health and safety system with respect to the prevention and compensation of employment injuries in the province. Bill 59 was passed on 6 October 2021 and the various modifications provided for in the Bill will come into force at different times between the Bill’s passing date and 1 January 2024.

The Bill will amend various laws and, amongst other things, the following amendments are expected to come into force in 2022:

• Amendments to specifically provide that health and safety legislation applies to workers who are working from home and to protect the right to privacy in workers’ homes (i.e. inspectors will only access homes with worker consent except if they obtain a court order to do so);

• Employers who assign workers who have suffered an employment injury to temporary work assignments will have to use specific documents which are meant to promote temporary assignments;

• The CNESST will have more specific powers regarding the employer’s duty to accommodate, including ordering an employer to pay an administrative fine if the employer refuses to cooperate in the return-to-work process or to reinstate the worker where ordered to do so;

• The CNESST (Quebec’s workers’ compensation authority) will have the power to offer individualized rehabilitation plans to workers before the employment injury is consolidated.

We note that the Bill grants significant rights to workers and to the CNESST while employers will mostly have to adapt to the modifications. Therefore, employers should monitor the coming into force of the Bill and be conscious of the modifications to ensure compliance with such.

Recent Court of Appeal decision regarding non-compete clauses

In Sahlaoui c. 2330-2029 Québec inc. (Médicus), 2021 QCCA 1310, the Court of Appeal reiterated that the employee’s obligation to act faithfully and honestly, as provided for in the Civil Code of Quebec, continues only for a reasonable time after the employment terminates and its intensity will vary on a case-by-case basis.

Case law in Quebec recognizes that employees who are not bound by a non-compete clause through their employment contract still have an obligation to act faithfully and honestly during their employment and following termination per the Civil Code of Quebec. However, the Court of Appeal confirmed that this obligation does not prevent employees from preparing their departures while in their prior positions, even when the employee’s intention is to start his or her own business. This affirmation is nuanced by the Court “ […] an employee who makes these preparations for departure cannot, theoretically, do so during his or her working hours or by making copious use of the tools provided by the employer in the course of his or her employment. He or she may not take advantage of the situation to plunder or hack into the employer's confidential information or files on which he or she is working, hide or misappropriate business opportunities, appropriate the employer's client lists or assets, recruit the employer's clients for his or her own benefit or for the benefit of others, genuinely and actively denigrate the employer to his or her co-workers or clientele, or any other such conduct. To do so would, of course, be unfair and is conduct that the courts will sanction.”

The Court of Appeal also reiterated that an employee who is not subject to a non-compete clause (or only a non-solicitation or extended confidentiality clause) may use the expertise, knowledge and qualities he or she acquired or developed within his or her former employer's business, including by competing with the latter. The knowledge that an employee has acquired or the skills he or she has perfected belong to the employee and can be used elsewhere, without committing a fault.

For certain positions, employers should consider including non-compete clauses in their employment contracts to provide a broader protection of their interests than what is provided for in the Civil Code of Quebec. It is important to keep in mind however that, to be considered reasonable and applicable by a court of law, such clauses must be mindfully drafted and tailored to each employee’s reality.

Recent Court of Appeal decision confirms that wage distinctions between students and other employees constitute discrimination

In Aluminerie de Bécancour inc. c. Commission des droits de la personne et des droits de la jeunesse (Beaudry et autres), 2021 QCCA 989, the Court of Appeal confirmed that the existing wage distinction between students and other employees constituted discrimination on the basis of their age and social condition under section 10 of Quebec’s Charter of Human Rights and Freedoms considering that evidence showed that the students were performing the same tasks, received the same training, made the same effort and assumed the same responsibilities as other employees of the company.

In this decision, the Court of Appeal reiterated the conditions that must be satisfied to come to the conclusion that there is discrimination per section 10 of Quebec’s Charter of Human Rights and Freedoms. There must be a demonstration, prima facie of a “distinction, exclusion or preference” related to one of the discrimination motives in the Charter. Moreover, section 19 of the Charter is meant to provide equal pay for equal work. However, the notion of “equal work” refers to equivalent work rather than identical or same work. To identify equivalent work, one must consider the required qualifications and efforts, the responsibilities assumed and the working conditions.

The Court of Appeal confirmed the decision of the Commission des droits de la personne et des droits de la jeunesse and came to the conclusion that the students employed were indeed deprived of a fundamental right, that of receiving the same treatment as other employees for the same work, solely because they belong to the “identifiable social group” of students.

This decision confirms that employers ought to be extremely cautious when offering different salaries to different groups of employees for equivalent work. To justify such a distinction, the employer must rely on a valid non-discriminatory reason (i.e. experience, seniority, years of service, merit, productivity or overtime). The conclusions in this decision could potentially apply to more than just students, but also to temporary workers, interns, etc.