Category: Uncategorized

Implementation starts in France

In November 2022, the European Chemical Agency (ECHA) announced that, over the 2023-2025 period, a REACH enforcement project would investigate how companies fulfil the registration, authorization and restriction obligations for products and chemicals they import from outside the EU. To this end, cooperation from national customs authorities in the Member States was sought.

On 07/02/2023, French Customs published a note on their website information of specific tariff provisions (DTP) related to compliance with REACH provisions and restrictions on the manufacture, placing on the market and use of certain dangerous substances and preparations and certain dangerous articles (listed in Annex XVII of the REACH Regulation).

As of 10/02/2023, operators importing in France are to mention on their customs declaration (DAU) either of the following DTP codes:

• Y106: Compliance with REACH restrictions defined in column 2 of Annex XVII of Regulation (EC) No 1907/2006;
• Y110: Exemption from REACH restrictions under Article 67(1) and (2) of Regulation (EC) No 1907/2006;
• Y113: Product not subject to the provisions of Regulation (EC) No 1907/2006.

Several operators and trade federations have reported “customs blockages” following the implementation of these DTPs.

Since Tuesday 21 February, DTP Y113 now mentions Annex XVII of the REACH regulation and is worded as follows: “Product not subject to the provisions of Regulation (EC) No 1907/2006 (Annex XVII)”.

Therefore, operators importing substances subject to the provisions of the REACH Regulation but not falling under Annex XVII may therefore refer to DTP Y113.

The creation of these DTPs for dangerous chemicals might be supplemented by additional codes in the coming months, so as to encompass non-dangerous substances and then meet the objectives of the ECHA enforcement project above described.

Our team has a strong experience in advising international operators in managing their REACH compliance obligations We are at your disposal for any further information at: dscustomsdouane@dsavocats.com.

The worst nightmare for an entrepreneur is getting sick. Not the sniffles – really, truly, sick. Not only are there no sick days when you own and operate your own business, but there are also often no long-term contingency plans. And when there is, someone still needs to be empowered to make decisions on your behalf. That is where proper estate planning comes in.

Estate planning is more than just a will for when you die. It includes documents for when you’re still alive and unable to make decisions for yourself and your business, such as powers of attorney and personal directives. If you can’t sign the cheques, who does? Who makes important decisions on business items during periods when you are incapable? Is there a backup plan?

It’s easy to put off drawing up a will as most people prefer not to think about their fallibility. Those that do have one often discover it’s out of date. Sometimes people forget that they have named a person their attorney or executor, and that person is no longer part of their life. For many reasons, periodically reviewing your estate planning documents is essential, especially when you experience substantial life changes.

Wills

The most common part of an estate plan is a will. Your will must be clear about who is to run your business after you die, for instance, your executor or someone else, and what to do with your shares. In estates that take time to settle or contain trusts that will run for years, it is crucial to delineate who is in charge and what they are to do with the business. Do they sell it or keep it for a minor beneficiary? Should they wait until a specific time or sell the shares to other remaining shareholders or another individual? These questions should be answered in your will, subject to existing restrictions if any. 

Enduring Powers of Attorney

For business continuity, powers of attorney are vital. The person named must know they are to step in should you not be able to act or make decisions. Closely held businesses which depend on many fast-paced decisions by a small team or individual need clear seconds in command, including the legal authority to take that role.

Even if the business is more informal, an untimely accident could throw a wrench into deal negotiations or large transactions, including the sale of the business. Ensuring someone has the legal authority to act in the event of an accident or disability can save what otherwise might kill a deal.

Key Person Insurance

If one person, or a handful of key people, drive the value of the business, you should evaluate the need for Key Person Insurance. Policies range in coverage and benefits, but generally, they cover the death and disability of the key person.

Key Person Insurance can help a business in two ways. First, it can provide the necessary funds to keep it operating as the hiring process gets underway. Second, if the running of the business depends solely on that key individual, insurance proceeds can help satisfy the business obligations and compensate the survivors. An example is the repurchase of shares by a corporation for value. 

Unanimous Shareholders Agreements

Although it may not seem like it, shareholder agreements can play an important role in estate planning for businesses. Without a unanimous shareholders agreement, the shares of individual shareholders may end up in the hands of people not intended to own or operate the business. That can have a detrimental effect on value. 

The shareholders’ agreement may also require that a corporation repurchase shares of a disabled or deceased shareholder, helping the shareholder and their family with medical expenses and loss of income or business revenue.

Conclusion

Estate planning makes good business sense. Make continuity plans for yourself and your business before it’s too late.

Reverse vesting orders have become increasingly common in the past two years. Although courts that have granted them in the past have stressed that they should remain “exceptional remedies”, at least two opinions this year suggest that RVOs will remain a driving force in insolvency practice for the years to come.  Their use cannot be ignored anymore. Jean-Yves Simard explains why in this article from the Canadian Lawyer.

DS Lawyers Canada LLP marks a significant milestone with its recognition in the prestigious Chambers Canada Legal Guide.

Chambers Canada distinguishes the best legal talent across a range of provincial, national and international law firms. Each ranking is based on the Chambers ranking system which is unrivalled in the accuracy, depth and quality of its research.

DS Lawyers congratulates Dale Burstall on winning the title in Corporate/M&A Alberta. This accolade was awarded to Dale due to his notable achievements and excellence in client service which spans over 30 years of practice.

Dale practices in the area of commercial law with an emphasis on securities law. Dale’s practice includes all aspects of securities law. He is equipped to advise on all matters of concern from the perspective of an issuer or an underwriter, including initial public offerings, secondary financing, mergers and acquisitions, all dealings with regulators including stock exchanges and securities commissions, and corporate governance. He also practices in business and corporate commercial law, and advises on all forms of corporate governance, shareholder agreements, and management of shareholder disputes.

“Dale is an exceptional lawyer who is well-known and demonstrates a high level of professionalism in every transaction. He is an undeniable role model for the profession, and we are delighted by this recognition of his depth of expertise in the industry”, stated Robert Verbuck, Managing Partner at DS Lawyers Calgary.

“We are delighted that Dale’s hard work and leading expertise have been recognized by his peers”, said Richard Laramée, Chairman of the Board of DS Lawyers Canada LLP. “This is a well-deserved honour that underscores the high caliber of our team and one that reflects on the entire firm. “

About Chambers Canada

Chambers and Partners have published guides to the legal profession since 1990. With a team of over 200 full-time researchers based in London, they identify and rank the world’s best lawyers and law firms based on in-depth, objective research by conducting interviews with thousands of clients and legal professionals.  

About DS Lawyers

DS Lawyers is an international law firm that was founded fifty years ago in Europe. The firm’s lawyers offer a full range of legal solutions to its local, Canadian, and global clients. The firm offers a tailored approach to each situation and integrated services in the areas of business, tax, litigation, commercial real estate, and employment law from our 24 locations including Quebec City, Montreal, Ottawa, Toronto, Calgary, and Vancouver.

Because our clients are at the heart of our initiatives, we are committed to offering concrete solutions adapted to the most complex problems and realities of our clients. Thanks to our collaborative structure, DS Avocats also contributes to assisting companies that wish to cross borders or that need legal support for their international business ventures.

Having successfully completed his articling term at DS Lawyers in 2022 and  been called to the Quebec Bar, we are pleased to welcome Laurent Crépeau within our team.

Laurent joins the firm’s Litigation and Dispute Resolution team in Montreal. His practice focuses primarily on civil, commercial and corporate litigation as well as bankruptcy and insolvency. He obtained his Bachelor of Civil Law and Juris Doctor from McGill University’s Faculty of Law and completed a Master of Laws in International Arbitration at New York University.

“I am thrilled to begin my career at the firm and continue working alongside very experienced lawyers who have become my mentors,” said Laurent Crépeau.

Earlier this summer, two other articling students had agreed to join the ranks of DS Lawyers in Quebec City as associates:

• Émilio De Angelis, Corporate and Commercial Associate
• Antony Kerr-Aspirot, Corporate and Commercial Associate

“We are pleased to have these young lawyers on our team, who stand out for the quality of their work, their leadership, and their aspiration for excellence. It is clear that DS Lawyers is a firm that stands out in the market, not only with business clients, but also with legal talents,” added Richard Laramée, Chairman of the Board of DS Lawyers Canada LLP.

About DS Lawyers

DS Lawyers is an international law firm that was founded fifty years ago in Europe. The firm’s lawyers offer a full range of legal solutions to its local, Canadian, and global clients. The firm offers a tailored approach to each situation and integrated services in the areas of business, tax, litigation, commercial real estate, and employment law from our 24 locations including Quebec City, Montreal, Ottawa, Toronto, Calgary, and Vancouver.

Because our clients are at the heart of our initiatives, we are committed to offering concrete solutions adapted to the most complex problems and realities of our clients. Thanks to our collaborative structure, DS Avocats also contributes to assisting companies that wish to cross borders or that need legal support for their international business ventures.

DS Avocats assisted Moneycorp, a global provider of payment and foreign exchange services, in opening a branch in Paris. Founded in London in 1979, the company’s clients include firms, financial institutions and individuals. It has operations in the UK, North America, Europe, Brazil, Hong Kong and the United Arab Emirates.

As part of its accelerated development in Europe, the group opened its Paris branch, Moneycorp France, on September 1st.

Headed by Cyril Léger, Moneycorp France will provide integrated payment solutions to corporate clients, including banks, financial institutions and businesses. Launched with a staff of six, Moneycorp France has ambitions to quadruple its workforce over the coming year.

Moneycorp France’s offering includes a full array of payment and foreign exchange solutions specifically designed to meet the needs of small and medium-sized businesses. With the opening of a branch in Paris, Moneycorp aims to position itself for French businesses as a true alternative to traditional banks and providers, by offering smart technology, superior service and competitive pricing.

DS Avocats’ team consisted of Benoît Charrière-Bournazel (Partner), Anne de Seze (Pre-partner), Emma Quercy and Julia Folgoas for corporate matters, Christophe Billet (Partner) for tax matters, Safine Hadri (Partner) for regulatory aspects and Olivier Gauclère (Partner) for commercial law matters.

There is a mechanism you can use to overturn this decision

Each year, the Border Services Agency (“CBSA“) conducts more than 200,000 commercial checks or audits of Canadian businesses. In the normal course of business of a company that imports or sells goods in Canada, it is likely that you may be verified in the course of the CBSA’s port-importation audit process.  This is a process undertaken to verify and confirm an importer’s compliance with the various dispositions administered by the CBSA in the course of import operations.

The CBSA is responsible for the enforcement of several acts including the Customs Act,  the Special Import Measures Act and the Customs Tariff, as well as a multitude of other federal acts and regulations, in partnership with other agencies and departments. When importing goods into Canada, the Act allows CBSA to determine the tariff classification, origin or value of the imported goods. However, the law stipulates that it is the responsibility of the declaring party (usually the importer or seller in Canada) to ensure the accuracy of the information provided, particularly on the Coding Forms (“B3“).

Based on the information reported, administrative audits by a CBSA officer may, however, take place up to four (4) years after the goods are accounted for. An importer or vendor may be assessed on a random basis or as an “audit priority”, for example, in cases of previous non-compliance, large number of entries or type of goods imported or as part of the CBSA’s Risk-Assessment Priorities (Historical verification priorities (cbsa-asfc.gc.ca)).

The verification process begins following receipt of a letter providing the importer with 30 days to comply with the request for information and documentation. The customs officer will review the situation and determine if further information is required or if the information is sufficient to make a determination (interim report). Unless there is a change, a final report will then be issued within 30 days, listing the importer’s obligations and the corrective actions that must be undertaken. In cases where audits result in findings of non-compliance, duties and taxes owed, plus interest as well as in many cases administrative penalties may be demanded, based on goods imported over a period going back four years. Of course, this means that the amounts owed, if any, may have to be amortized other than by the selling price of the goods involved. In other words, these assessments will hit a company’s bottom line.

Two findings are generally possible depending on whether the importer had “reason to believe” that his own declarations were incorrect. It is important to understand that the “reasons to believe” concept refers more specifically to the legislative provisions of which the Customs Tariff is a part, as well as Interpretative Notes, to all “official” documents, letters or written communications from the CBSA, any internal notice or reports brought to the importer’s attention, as well as to any decision in customs matters including all the applicable precedents. These are all considered as “reasons to believe” that can justify or not the payment of customs duties or taxes to the CBSA.

Based on these “reasons to believe”, the CBSA determines that specific information was not available or conversely was available from the importer.

Possible outcome #1: CBSA determines that specific information was not available

CBSA identifies errors in the declarations but determines that the importer did not have “reason to believe” that the statements were incorrect. In this case, the importer must correct all erroneous declarations within the audit period (usually one year) as well as returns after that period, i.e., on a prospective basis and going forward. In some cases, a correction of a customs declaration may even result in a refund of customs duties to the importer.

Possible outcome #2: CBSA determines that specific information was available

CBSA identifies errors and determines that the importer had “reason to believe” that his customs declarations were incorrect. This is the case, for example, when a prima facie, evident and transparent tariff classification provision in the legislation were not followed. With respect to value for duty, i.e., the CBSA may determine that the importer had “reason to believe” that subsequent payments (royalties, license fees, revenue, interest) from the importation of goods should be included in the price paid at the time of the annual financial statement and therefore reported to the CBSA at year-end. Thus, CBSA normally takes the position that the importer ” knew”, or “should have known”, that the values reported were incorrect from the time the year-end adjustment is recorded. In all cases, if the corrections result in the payment of duty, the importer will be required to self-correct for returns dating back to the specific information date for up to four years.

Dispute and appeal

In such circumstances, there is an administrative dispute procedure and appeals can be filed under the Customs Act within a strict 90-day period following the CBSA’s final report, notice or decision.

An importer or vendor who disagrees with the CBSA’s decision may file a request for review but should keep in mind that there can be no suspension of payment in the event that amounts are to be paid. Notwithstanding the initiation of the dispute, the importer or vendor will be required to pay the amount of the assessment within 30 days before interest accrues. Security may be posted if the amounts owed are substantial or represent a significant burden to the importer. However, non-payment of duties and taxes will result in a penalty under the Administrative Monetary Penalty System (“AMPS“) and is sufficient reason for any challenge to be dismissed.

Several conditions must be met for the appeal to be accepted by the CBSA and it is therefore recommended that a lawyer or customs broker be retained to maximize the chances of successfully challenging an unfavourable determination. In all cases, the importer appealing a determination must present persuasive and relevant arguments and documentation to support their position. There must be a logical reason behind the request. If the applicant is successful, the fees and interest will be refunded. If fees are due, they must be paid within 30 days of the decision.

Importers who disagree with a CBSA re-determination may appeal within 90 days to the Canadian International Trade Tribunal (“CITT“), a quasi-judicial tribunal, where the matter will be heard on a de novo basis (i.e a fresh start).  Written argument and evidence, witness testimony and a hearing will take place before a Tribunal member.  It is highly recommended that a customs attorney be retained for this type of proceeding.

Conclusion

If you, your association or your company have any questions regarding commercial remedies in Canada, please do not hesitate to contact one of our legal advisors.  

DS Avocats has an experienced team of lawyers with expertise in trade remedies and advocacy. We also provide comprehensive expertise in customs issues.

1. Your rights are in jeopardy and time is of the essence – what now?

When a dispute arises, parties cannot always wait several months for the Court to make a final ruling on the questions at issue. However, for some, waiting can mean that their interest in the litigation will lose all its value.

Here are a few examples to illustrate:

• an important football game is scheduled to take place at the Olympic Stadium in Montreal, but the supplier who undertook to deliver the playing surface claims that it cannot reach an agreement with its supplier to deliver the surface in time;

• a clothing retailer desperately awaits delivery of its spring collection from its manufacturer but the latter requires additional unlawful payments before it agrees to deliver;

• a tenant of restaurant premises cannot operate their restaurant because their landlord keeps the premises locked;

In each example, the parties cannot afford to wait several months for their rights to be vindicated in court. In the case of the football game, with the game due to take place shortly, failure to deliver the playing surface will result in the cancellation of the event. In the case of the clothing retailer, its spring collections will lose considerable value once that season has passed. Finally, each day that the tenant cannot operate its restaurant will entail loss of goodwill since its customers will gradually move to other restaurants.

In each of these examples–all of which were actually litigated before the Superior Court of Quebec–the plaintiffs were able to obtain a provisional injunction from the Court which allowed them, respectively, to receive their playing surface in time for the scheduled football game, obtain their spring collection, and regain access to their restaurant, in each case, within days of filing their application to the Court.

DS Lawyers Canada represented the plaintiffs in the last two cases–how did we succeed?

2. Provisional Injunctions: A Cure for Emergencies

The Quebec Superior Court can issue various orders to force a party to perform a specific act or refrain from doing something. This type of remedy is called an injunction.

Different types of injunctions can be issued at various stages of a court proceeding. In urgent situations, the relevant injunction is called a provisional injunction.

In order to obtain a provisional injunction, a party must show that

1. their application raises a serious question to be tried;

• they would suffer serious or irreparable harm if the Court did not issue an injunction;

• this serious or irreperable harm would be more significant than the harm that the opposing party would suffer if an injunction were granted; and

• this serious or irreparable harm, moreover, is likely to occur imminently, hence why the court must intervene without delay.

3. Some Difficulties Associated with Provisional Injunctions – Or the Importance of Dealing with Experienced Counsels

A provisional injunction is not easy to obtain. Additional difficulties may further arise if an injunction would have the effect of ruling on the merits of the claim before the court. In other words, a provisional injunction will be more difficult to obtain if, in order to grant the injunction, a court has to render judgment on an issue that would normally be resolved at a more advanced stage of proceedings with the support of a complete evidentiary record and extensive oral arguments from the parties’ lawyers.

This situation was present in all three cases cited above. Indeed, in each case, the court had to determine that the party seeking the injunction was likely to succeed on the merits after a full trial.

In addition, a court may be even more reluctant to grant an injunction if it orders a party to make specific actions as opposed to merely refraining from doing certain things. Indeed, judges are more inclined to grant provisional injunctions when its effect is simply to maintain the status quo between the parties. On the contrary, when the effect of an injunction would be to force a defendant to make specific acts while greater uncertainty remains as to the merits of the plaintiff’s claim, judges will be more reluctant to grant an injunction.

Conclusion

Despite its challenges, securing an order for provisional injunction is far from impossible. Counsels at DS Lawyers Canada have obtained these on numerous occasions for their clients and know how to best present these types of applications in court. The two cases mentioned above–which were both won in the last six months–are good examples of this.

Do not hesitate to reach out to the authors of this post for more information or a consultation.

The 2023 edition of Best Lawyers in Canada recognized Étienne Dubreuil, Jean-Yves Simard and Dale Burstall of DS Lawyers Canada for their expertise in 3 practice areas. In addition, Georges Samoisette Fournier has been recognized for his work in Labour and Employment Law and listed in to the prestigious directory of The Ones to Watch in Canada.

Étienne Dubreuil, of our Montreal office, has been recognized for his expertise in the field of transportation law. He has been ranked in this directory since 2014.

Jean-Yves Simard, of our Montreal office, has been recognized for his expertise in the fields of corporate and commercial litigation and insolvency and financial restructuring. He has been ranked in this directory since 2012.

Dale Burstal, of our Calgary office, has been recognized for his expertise in the field of corporate law for the first time this year.

“The firm is thrilled by the distinctions obtained this year. These nominations highlight the depth of our team’s strength and expertise. I would like to congratulate the ranked lawyers for this great achievement”, said Richard Laramée, Chairman of the Board of DS Lawyers Canada LLP.

About Best Lawyers
Best Lawyers is one of the most respected lawyer ranking services in the world. For almost 40 years, Best Lawyers has assisted those in need of legal services to identify the lawyers best qualified to represent them in distant jurisdictions or specialized areas. Best Lawyers lists are published in leading local, regional, and national publications across the globe.

About DS Lawyers

DS Lawyers is a full-service law firm offering a broad range of legal advice and solutions to our local, Canadian and international clientele. We offer a personalized approach and integrated services in the areas of business, tax, litigation, commercial real estate, and employment law across our 24 locations which include Québec City, Montréal, Ottawa, Toronto, Calgary, and Vancouver.

DS Lawyers recognizes the interests of its clients are at the center of its initiatives and provides concrete solutions which are adapted to the most complex concerns and realities of its clients. Through its collaborative structure, DS Lawyers also supports businesses seeking to cross borders or requiring legal support for their international offices.

Montréal, 16 August 2022 – DS Lawyers welcomes four experienced lawyers from a prominent Montréal law firm’s Labour and Employment law group in line with its strategic growth plan. Geneviève Beaudin, Nicola Di lorio, Georges Samoisette-Fournier and Mélanie Sauriol, as well as two legal assistants, will be joining DS Avocats on August 16, 2022.

This team has mastered all aspects of individual and collective rights practice for companies subject to the Canada Labour Code or Quebec Labour Code, including collective agreement negotiations, grievance arbitration, labour disputes, individual rights, privacy, administrative law and specialized tribunals.

This team’s integration is an additional step in the implementation of DS Lawyers’ vision of offering comprehensive and integrated legal services to serve its business clients.

“During our discussions, we quickly realized that we had values and professional aspirations in common with our DS Lawyers colleagues,” said Nicola Di lorio, Senior Partner, Labour and Employment Group. “Our decision to join DS Lawyers was greatly influenced by the firm’s flexible, human-oriented culture and our complementary experience and expertise and shared desire to offer customized services to clients in Quebec, across Canada and around the world.”

“We’re delighted to welcome this renowned and respected team of lawyers whose sought-after expertise in an important area of law is sure to be an asset for our clients. Geneviève, Nicola, Georges and Mélanie’s arrival reinforces our position as the new legal services leader for Quebec and Canada’s business community,” said Richard Laramée, Chairman of the Board of DS Lawyers Canada LLP. “This announcement is a concrete expression of DS Lawyers’ strategic direction to continue to grow by taking advantage of a more complex, more sophisticated and faster-paced business environment.”

About DS Lawyers

DS Lawyers is a full-service law firm offering a broad range of business and legal solutions to our local, Canadian and international clientele. We offer a personalized approach and integrated services in the areas of business, tax, litigation, commercial real estate and employment law across our 24 locations, including Québec City, Montréal, Ottawa, Toronto, Calgary, and Vancouver.

Since the interests of its clients are at the centre of its initiatives, DS Lawyers ensures that it offers concrete solutions adapted to the most complex problems and realities of its clients. Through its collaborative structure, DS Lawyers also supports businesses seeking to cross borders or requiring legal support for their international offices.

For information

Marie-Ève M. Garant

Directrice nationale communication et marketing

DS Avocats

514-969-4688

megarant@dsavocats.ca

In order to reduce administrative delays, abundant paperwork and costs affecting businesses, Lucie Lecours, Minister for the Economy of the Coalition Avenir Québec (hereinafter the “CAQ“), tabled Bill 44 on June 7 in accordance with the government Action Plan on Regulatory and Administrative Relief 2020-2025. The CAQ envisages Quebec as one of the best places to do business in a simpler and more competitive environment. With the thirty-five (35) measures proposed relating to implementing flexible business hours, abolishing specific rules for advertising contests and the liquor industry, the Quebec government expects to save entrepreneurs in the province $7 million annually.

1. Hours and days of admission to commercial establishments

First, the Bill proposes to amend the Act respecting hours and days of admission to commercial establishments and to enact the Regulation respecting hours and days of admission to commercial establishments. In essence, these changes would now allow the government to set the hours of admission to commercial establishments entirely by regulation. The current hours of admission to commercial establishments would not change, however. They would simply be easier to access under one regulation. This flexibility would give municipalities the power to vary these conditions within their respective jurisdictions for different types of businesses, a power currently given only to the city of Montreal.

2. Provisions for the alcoholic beverages sector

The Bill makes several proposals that could affect businesses selling alcoholic beverages. First, the Bill proposes to eliminate the delivery permit under the Act respecting liquor permits and the Act respecting offences relating to alcoholic beverages. This permit currently authorizes public transportation services to transport alcoholic beverages.

Instead, the proposed legislation could allow public carriers to store and transport alcoholic beverages and permit the consumption of alcoholic beverages in vehicles used to transport persons while the vehicle is in motion without the need of a delivery permit.

It should be noted, however, that the place where the liquor is stored could be subject to inspections or seizures by a police officer if the officer has reasonable grounds to believe that the place is being used for the storage of liquor by a public carrier.

3. Provisions for advertising contests

Currently, the fees for holding a contest in Quebec are very onerous and entrepreneurs wishing to do business in the province could benefit from their reduction. The Act respecting lotteries, publicity contests and amusement machines require contest holders to fill out several forms setting out all the conditions of the contest and several rules limiting their advertising display. Note that they must also give up to 10% of the value of the prize to the Régie des alcools, des courses et des jeux (hereinafter the “Régie“). 

Thus, an important part of the government’s reform plan is to repeal all the rules surrounding advertising contests so that businesses will no longer have to complete as many administrative formalities to hold a contest, including the payment of fees to the Régie. Also, in the Act respecting lotteries, publicity contests and amusement machines, the government proposes to abolish all references to publicity contests.

4. Provisions concerning the publication of rights

With respect to the publication of rights, four (4) provisions of the Civil Code of Québec could be amended to reduce the time limit for making certain rights effective against third parties from fifteen (15) to seven (7) days. Thus, the reservation of ownership of a vehicle or any other movable property, a sale with a right of redemption, the rights of ownership of a lessor as well as the rights resulting from a lease will have to be published within seven (7) days of their acquisition in order to be enforceable against third parties. Specifically, the Bill would amend Articles 1745, 1750, 1847 and 1852 of the Civil Code of Québec.

5. Provisions Concerning the Names of Enterprises

Currently, entrepreneurs wishing to register with the Registraire des entreprises du Québec (hereinafter the “REQ“) are required to pay fees for the production of a search report of the names used and declared in the register. Through Bill 44, Minister Lecours proposes to remove this formality by amending the provisions of the Act respecting the legal publicity of enterprises, the Business Corporations Act and the Companies Act governing the formalities for searching and reserving a company name. This change could make the registration of companies in the REQ more accessible.

Conclusion

In conclusion, according to the Minister Lucie Lecours, these changes would significantly facilitate administrative processes for businesses, thus sparing them from unnecessary costs and delays. This  article offers an overview of the legislative changes proposed by Bill 44 that could affect businesses, but several other rules may be applicable, notably in respect of municipal matters and building security. Professionals at DS Lawyers Canada are available to answer any questions or to provide information regarding Bill 44.

If you own a corporation doing business in Quebec, employ more than 25 people in that corporation, or finance a corporation with personal property security, the new French language requirements may have an impact on your business operations.

On June 1^st, 2022, the Act respecting French, the official and common language of Québec (the “Bill 96”) received assent, bringing into force several provisions amending the Charter of the French language (also known as the “Bill 101” and hereinafter referred to as the “Charter”) and twenty other regulations and legislative measures.

With the affirmation of French as the common and official language in Quebec as a cornerstone, the following article will explore and demystify the main changes your corporation will need to make to comply with this new Bill 96.

Language of the legislature and the courts

As of September 1^st, 2022, all legal documents issued by a legal person must be drafted in French or accompanied by a certified translation in that language, such as documents filed to settle a dispute between shareholders or to sue a client in default. In this regard, a document that does not comply with this requirement can no longer be filed at a court office in Quebec.

Language of the civil administration

Communications between companies and Quebec government agencies that relate to obtaining a permit, financial assistance or any other authorization must be made exclusively in French.

Contracts entered into with the government in Quebec must also be written in French, although certain exceptions apply.

Note that this requirement will come into force on September 1^st, 2022.

Language of labour relations

An important part of the government’s reform with the coming into force of Bill 96 is to provide a French language workplace for employees in Quebec. It also prohibits discrimination and/or harassment of a person on the basis that he or she has exercised the right to communicate in French or does not speak a language other than the official language.

On one hand, individual employment contracts must also be drafted in French when they are adhesion contracts. Thus, in a contract where the essential clauses are decided in advance by one party (generally the employer) and whose terms cannot really be negotiated, the parties will only be bound by a version in a language other than French:

• when they have read the French version of the contract first; and
• that they have expressly decided to be bound by the version in another language.

On the other hand, the individual contract of employment concluded by mutual agreement between an employer and an employee (we frequently find this when hiring an executive, for example) may be drafted only in another language, at the express wish of the parties.

In addition, employers will have to prove certain additional criteria when they require the use of a language other than French within their corporation (particularly when hiring). Under the Charter, employers only had to demonstrate that knowledge of another language was necessary to perform the job. Now, the employer must have taken all reasonable steps to avoid imposing such a requirement. To that end, the employer must have previously:

1. assessed the actual language needs associated with the duties to be performed;
2. made sure that the language knowledge already required from other staff members was insufficient for the performance of those duties; and
3. restricted as much as possible the number of positions involving duties whose performance requires knowledge or a specific level of knowledge of a language other than the official language.

Language of commerce and business

As mentioned above, adhesion contracts must be written in French. For a party to express a wish to be bound by a version in a language other than French, it must have been given the opportunity to read the French version in the first place. Therefore, the usual clause inserted in contracts providing that the parties agreed to conclude transactional documents in a language other than French will no longer be sufficient for adhesion contracts.

The same applies to catalogs, brochures, social media and other documents that must be written in French as required by the Charter. If a corporation decides to make such a document available to the public in a language other than French, the corporation must make a French version available in conditions that are at least as favourable.

Under the Charter, the requirements for public sign of the business name visible from the outside are reinforced and French must now appear in a manner that is predominant over any other language. A 2:1 ratio between the two languages is considered adequate in the circumstances. There is also an exception for certain trademarks that allows for an override of the predominance of French requirement. Thus, if a trademark is duly registered and there is no corresponding French version in the trademark database, the corporation may benefit from the exemption and display its mark outside exclusively in another language. It should be noted that the provisions of this subsection will come into force three years after assent, that is, on June 1^st, 2025.

In addition, registrations in the Register of Personal and Movable Real Rights (the “RPMRR“) will have to be drafted exclusively in French. Security interests such as movable hypothecs will therefore no longer be registered in a language other than French.

Francisation of enterprises

Under the Charter, only corporations with 50 or more employees were subject to the francization process. With the amendments made by Bill 96, these requirements will be extended to corporations with more than 25 employees (the number of employees is calculated over a six-month period). In other words, the Office Québécois de la langue française (the “OQFL”) will have the power to require the creation of a francization committee for this category of corporation if it concludes that the use of French is not generalized at all levels within the corporation.

It should also be noted that the provisions related to this francization process will come into force three years after Bill 96 is assented to, that is, on June 1^st, 2025.

Consequences and non-compliance

Bill 96 broadens the range of sanctions against corporations for non-compliance with the provisions of this Act. Any person may now bring a civil action when he or she believes that his or her French language rights have been violated. Fines have been increased to the amount of $3,000 to $30,000 for a first offence (previously the maximum fine was $20,000). They will double and may even triple for subsequent offences.

There is now a presumption that the directors committed the offence perpetrated by a corporation under Bill 96. The proof by the directors that they acted diligently in taking all necessary precautions to avoid this situation, however, counterbalances the rule.

A party who feels aggrieved by the provisions of a contract that does not comply with the requirements set out in Bill 96 may apply to have the contract declared null and void or to have its concurrent obligations reduced.

Finally, the OQFL may use injunctions to stop conduct that is found to be in violation of the Act (or to force an offender to comply with the provisions of Bill 96). An injunction will also be used to order the destruction or replacement of signs, advertisements, illuminated signs and billboards that do not comply with the requirements of the Act.

While this article contains a global analysis of the main rules directly affecting corporations, there are several other specific rules. With its professionals well versed in Bill 96, the DS Lawyers team is available to support you in the implementation of the changes necessary to ensure your corporation’s compliance with the requirements imposed by Bill 96. Please do not hesitate to contact a member of our team if you have any questions regarding this article or if you would like to receive more information about Bill 96.

In an effort to make Canada’s trade remedies regime more accessible, the federal government has made amendments to the Special Import Measures Act (SIMA) and the Canadian International Trade Tribunal Act (CITT Act).

These changes are the result of public consultations undertaken by the Department of Finance Canada between August 6 and December 2, 2021. One of the purposes of these changes is to improve access to the trade remedies system for small and medium-sized businesses and labour organizations.

Following Royal Assent of Bill C-19, the legislative changes that came into force on June 23, 2022, target five specific areas.

1. Promoting the accessibility and participation of unionized workers in certain complaints 

The CITT Act has been amended to allow union associations to file comprehensive safeguard complaints and requests for extensions of safeguards. This type of remedy is specifically targeted at cases where certain goods are being imported into Canada in such increased quantities and under such conditions that their importation is causing or threatening serious injury to workers and jobs in Canada. Employee organizations will now be able to file complaints on behalf of domestic producers whether or not the complaint is directly supported by these producers.

This legislative addition will be interesting to follow in the coming years, as there is no requirement that domestic producers directly support the complaint. The criteria for openness, however, continues to apply. Under the legislation, the complaint must be brought by or on behalf of domestic producers of a “significant share” (generally 35% of Canadian production) of like or directly competitive goods produced in Canada, i.e., by a trade union group whose members are engaged in Canadian production of the like or directly competitive goods.

In practice, however, it may be difficult for a union to bring such actions without obtaining a minimum of support from the domestic producing companies, i.e., their employers, since such actions must be supported by sufficiently detailed evidence, particularly with respect to profits, sales, cash-flow, losses, market share and the level of productivity in the industry.  

2. Strengthen protection for domestic producers and workers in Canada

The criteria necessary to demonstrate injury are slightly relaxed and simplified, where the impact on “workers in the domestic industry” and on “jobs” in Canada which will now be considered in any assessment of “injury”. The Act adds two new interpretive provisions to guide the CITT in its injury assessment. The CITT will have to take into account the ” impacts “, as various as they may be, on workers and on jobs in Canada. This type of interpretive provision could increase the likelihood of success of complaints at the injury assessment stage, although situations where the CITT finds that there is no injury to domestic producers remain rare.

Finally, modifications are made with respect to the time limit for providing notice of complaints. In the case of dumping investigations, the governments of the exporting countries will now be notified of the filing of complaints in Canada seven days rather than twenty-one days in advance. In this way, Canada significantly reduces the ability of foreign exporters to move their products quickly into the Canadian market before an investigation is conducted, without being forced to pay anti-dumping duties if it is found that there has been massive importations. 

3. Broadening the criteria for circumvention investigations

In their complaints, Canadian domestic producers will no longer have to demonstrate that the imposition of anti-dumping or countervailing duties “is the principal cause” of the change in the pattern of trade, but only whether it “wascaused” or one of the possible causes. Complainants will now only have to provide “a reasonable indication that circumvention is occurring”. The law thus somewhat relaxes one of the key criteria for initiating anti-circumvention investigations, but it remains quite complex to demonstrate that the assembly or even slight modification of goods through minimal processes in a third country is likely to be caused by the imposition of anti-dumping or countervailing duties. No anti-circumvention investigations have been initiated in Canada to date, but this type of action may become more prominent in the coming years.

4. Expanding the test for interpreting mass imports

When the Tribunal conducts an inquiry at the provisional stage, it will be obliged to analyze potential massive importations. This new requirement is intended to require the Tribunal to systematically analyze cases of possible massive importations. Following the filing of a complaint, the Tribunal will now have to proceed with a systematic investigation of all the causes of injury listed in the Act, including those related to massive importations of foreign products. 

The legislation also changes the criteria for the imposition of retroactive duties in cases of massive imports, which will provide greater protection to domestic producers in the 90 days prior to the initiation of an investigation. 

5. Mandatory expiry reviews of orders

In the absence of an expiry review, an anti-dumping order is generally deemed to expire after 5 years from the date of the findings. During these years, a domestic industry may sometimes have undergone organizational, operational, or other changes that prevented it from requesting an extension of the order from the Tribunal in the prescribed time and form. Now, the Tribunal will automatically initiate the expiry review, without the domestic industry having to institute any proceedings, and may terminate a review if it finds that the domestic producers are unlikely to support the renewal of the order.

This type of measure not only institutionalizes expiry reviews, but also favours domestic producers that are small or do not have sufficient time or resources to mobilize before the Tribunal to raise their concerns. In addition, it may increase the likelihood that certain orders or findings made by the Tribunal will be extended by the Tribunal for a further five years.

Conclusion

In conclusion, it should be noted that the legislative changes do not apply to proceedings commenced before June 23, 2022.

It will be interesting to observe to what extent SMEs and union associations will be concerned by these changes, which are still quite limited and specific.

If you, your association or your company have any questions regarding trade remedies in Canada, do not hesitate to contact one of our legal advisors.   DS Avocats has an experienced team of lawyers with expertise in trade remedies and advocacy. We also provide comprehensive expertise in customs issues.

In response to the seriousness of Russia’s violation of Ukraine’s territorial integrity, as well as the serious human rights violations that have been committed, Canada has amended the Special Economic Measures (Russia) Regulations (SEMR) on several occasions to expand the scope of economic sanctions against Russia. Since February 2022, the number and scope of these economic sanctions have increased significantly.

If you or your company has business ties with someone on Canada’s Russia Sanctions List, keep in mind that Canada’s economic sanctions could apply to you as well.

As of June 3 2022, more than 970 Russian individuals and entities are now included on the Canadian Designated Persons and Entities List, which can be found in Schedules 1 through 4 of the SEMR. The economic sanctions are applied in three main areas:

1. Prohibitions on direct or indirect commercial operations and transactions involving goods or services owned or controlled by persons designated in Schedules 1 through 3 of the SEMR;
2. Seizure and detention of property or assets belonging to or under the control of the designated persons;
3. The regime of offences and penalties.

1. The following activities are primarily prohibited:

• Making goods, whether tangible or intangible (whether real or personal), wherever they may be, available to designated persons, including goods set out in Schedule 4 and goods on the Export Control List;

• Transacting any property, wherever located, belonging to a person designated in Schedules 1 through 3 of the SEMR;

• Providing a financial, technical or other service related to merchandise owned by or for the benefit of a person named in Schedules 1 through 3 of the SEMR.

• On May 18 2022, the Canadian government amended the SEMR to prohibit the export and import of all luxury goods to and from Russia. These amendments will come into force on July 17 2022. 

It is the responsibility of Canadian entities, particularly those in the technology, financial services (banking, insurance, trusts, securities) sectors, to verify on an ongoing basis the existence of assets in their possession or control that belong to any designated person. That would include any type of property and includes money, funds, currency, digital assets, and virtual currency.

However, certain exemptions are provided. Activities payable under a contract entered into prior to the listing of such designated persons that were performed prior to the listing of the designated person in Canada are not prohibited, nor are payments payable under a contract entered in force prior the listing made by designated persons to a Canadian entity that is not listed as a designated person . Finally, specific exemptions may also apply to certain goods, for example, communication devices, software, generally available to the public.

2. Seizure and detention of property or assets belonging to or under the control of the designated persons

The prohibitions listed above apply to any transaction that may involve property or entities (i) owned, (ii) held or (iii) controlled directly or indirectly by, at the direction of, or on behalf of the designated persons. The concepts of possession, custody and control must be considered.

The Special Economic Measures Act, which empowers the economic sanctions regime against Russia, provides Canadian customs officers with the authority to search, seize and detain for the benefit of the state any offending property or assets that may violate any of the prohibitions listed above.

3. Offences and penalties

Under the Act, itis a criminal offence to knowingly contravene these prohibitions or to facilitate, assist or abet such transactions, punishable by a fine of $25,000   or imprisonment for up to five years. The proceeds of any related financial transaction may also be considered criminal in origin, which is a separate offence . However, no prosecution or civil proceedings may be brought against persons who inform Canadian authorities in good faith that they may have engaged in transactions in connection with any designated person.

Accordingly, it is suggested that companies that may be involved with designated persons and entities, and any Canadian intermediary, should:

• Monitor their financial transactions for any reasonable grounds to suspect that they are related to a violation of the SEMR or a money laundering offense;
• Maintain an effective risk-based approach to assessing the riskiness of clients who may be acting as an intermediary, owned or controlled by a designated person;
• Implement preventive measures to know their customers thoroughly.

If you or your company have any questions regarding imports/exports to or from Russia or any other trade or customs concerns, please do not hesitate to contact one of our legal advisors.  

DS Lawyers LLP has an experienced trade defense team and provides comprehensive expertise on compliance issues and customs controls.

The Facts

In this case, during a delivery, the midwife had to perform a paradoxical rotation of the head of the fetus; the baby was born with a malformation. The medical experts instructed by the court considered that the act of turning the head was not indicated and wrong and could have caused the malformation; however they could not assert if this malformation was the result of the rotation of the head, or if it was a fetus condition prior to the delivery.

The parents of the child brought the case before the court, which followed the medical experts and considered that the act of turning the head was wrong; as a result, the court ordered the hospital to compensate the child for the entire damage resulting from the malformation.

The hospital lodged an appeal and the court of appeal reduced the child’s compensation by considering that the wrongful act only caused the child to lose a chance to avoid the damage, which was estimated at 15%. In other words, the court considered that there was a 15% chance that the damage was the result of the midwife’s fault, and 85% of a previous condition.

Our Analysis

We believe that the solution affects considerably the concept of loss of chance in French law.

Loss of chance is usually defined as the certain loss of a favorable eventuality.

The notion of loss of chance is used in circumstances which are known with certainty, to evaluate the probability that the damage would have occurred if the situation had been different, i.e. if the fault had not been committed.

In this case, the expertise did not permit to determine the current situation; it was not determined if the damage resulted from the wrongful act, or if it was prior to the wrongful act. The causal link between the fault and the damage was not determined. However the victim is compensated, partially, based on the notion of loss of chance, which consists here in assessing the probability of the causal link.

In our opinion, this is a profound and serious violation of the principle that the causal link must be certain.

DS Lawyers, an international business law firm with its Canadian headquarters in Québec City and Montréal, and Burstall LLP, a highly respected boutique business law firm based in Calgary, have come to an agreement to combine their teams, expertise and business.

Effective July 1, 2021, Burstall LLP has merged with DS Lawyers (DS Avocats) and changed its name to DS Burstall

This landmark agreement will accelerate the transformation of the Canadian legal industry by providing a distinct alternative for businesses across the country in both domestic and international markets, while providing sophisticated clientele with immediate access to the full range of business and legal expertise required to meet business plans’ objectives and corporate financial priorities.

“We’re very pleased and excited with this merger that will benefit our clients and our professional team. We’ll now have access to a larger and more diverse network of legal professionals across Canada and internationally, with better systems, technology and administrative support, to bolster our incredible team of lawyers, paralegals, legal assistants and support staff,” said Robert Verbuck ,Managing Partner of DS Burstall.

DS Lawyers’ clients will be able to leverage the strategic acumen of DS Burstall’s team of skilled professionals who boast extensive expertise and experience in business law, corporate finance, capital markets and securities regulation, mergers and acquisitions, corporate law and governance, employment law, dispute resolution, banking, energy and cannabis law.

Similarly, Burstall’s clients will now have access to wide-ranging expertise in others pecialties including tax, trade, real estate and financial services, across Canada and internationally.

With the addition of this new team of Calgary-based lawyers, the DS Lawyers network now has six offices across Canada in Québec City, Montréal, Ottawa, Toronto, Calgary and Vancouver. This is in addition to its international presence in Europe, Asia and South America through DS Avocats, with a total of more than 400 corporate legal practitioners across a network of offices in 23 cities in 13 countries.

“This merger agreement is a significant strategic accomplishment for both firms and represents another milestone in the growth of DS lawyers,” said Richard Laramée, Chairman of the Board, DS Lawyers Canada. “Our firm is dedicated to Canada’s business community. Our shared philosophies and values, our innovative and solutions-based thinking and our combined expertise will benefit our clients and allow us to further fulfill our mutual objectives of continuing to meet their needs and exceed their expectations both in Canada and around the world.”

About DS Burstall

Burstall LLP was a boutique law firm based in Calgary with a distinguished history of serving businesses and entrepreneurs for over 50 years, beginning as Burstall, Clarke, Jones and Coady and in recent years as Burstall Winger Zammit LLP.

Its team of experienced lawyers value accessibility, personal contact and implementing cost-effective services. Burstall’s client-centred approach allows the team to better serve client needs, providing strategic legal services, as well as advice and solutions to pave the way for client growth and coming ventures.

For more information: www.burstall.com

About DS Avocats Canada

DS Lawyers was founded in 2007 in Québec City and partnered with the DS Group in 2013

With six offices in Canada, located in Québec City, Montreal, Ottawa, Toronto, Calgary and Vancouver, the firm specializes in business law, primarily mergers and acquisitions, financing and taxation.

Its multidisciplinary team offers a full range of legal services nationwide to a diversified, international clientele. Globally, DS Lawyers brings together more than 400 corporate legal practitioners across a network of 23 offices on four continents.

For more information: www.dsavocats.com