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A recent decision of the Court of Appeal for Ontario (the “ONCA”) has created doubt as to the enforceability of certain arbitration clauses in independent contractor agreements – which will likely require all direct selling companies to want to review and retool their own clauses.

In Heller v. Uber Technologies Inc., 2019 ONCA 1 (“Heller”), an Ontario Uber driver commenced a proposed class action against Uber entities.  The Uber driver alleged that Ontario Uber drivers were improperly classified by Uber as independent contractors, when they were lawfully employees entitled to the protections of the Ontario Employment Standards Act, 2000 (the “ESA”). The class action sought a declaration that Uber had violated the provisions of the ESA and asked for $400 million in damages.

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Every business operating in Québec should already be aware that it is a French-speaking province and that given the population it would make sense to operate in French when carrying on business in the province.

We are frequently asked, however, about the requirements of the Charter of the French Language (the “CFL”), particularly about whether specific documents must be translated, and whether websites must be offered in French as well.  

The December 20, 2017 decision of the Québec Court of Appeal in 156158 Canada Inc. v. Attorney General of Québec, 2017 QCCA 2055 provides a useful summary of the major provisions of the Charter of the French Language and upholds the validity of all of them, including the relatively recent requirement for French language websites.

The Appellants were businesses run by Anglophones (Québecers whose first language is English, and who comprise approximately 7.5% of the population) who had been charged with various offences under the CFL including:

The Appellants were all found guilty in the Court of Québec, and on appeal to the Superior Court. The issue before the Court of Appeal was whether the Appellant’s Canadian and Québec charter rights were violated by the French-language requirements in the CFL.

The Court of Appeal reviewed prior jurisprudence, including decisions of the Supreme Court of Canada on the issue, and concluded that while the CFL was indeed an intrusion upon freedom of expression, it was a justified (and therefore constitutionally permissible) infringement. In this respect, the decisions of the Supreme Court of Canada were binding on the Court of Appeal absent a new legal issue not previously considered, or significant developments or changes in circumstance that would have fundamentally shifted the parameters of the debate.

The Appellants had argued that the use of French in Québec was no longer in jeopardy based on linguistic statistics, and that it was now time to revisit past jurisprudence and decide the issue anew. In dismissing this argument the Court of Appeal held that the evidence before the court did not demonstrate that the situation had markedly changed, and that there was conflicting expert evidence on the issue.

While the Court did not directly consider the constitutionality of the individual sections with which the Appellants were charged, among them was section 52 of the CFL, which reads as follows:

52. Catalogues, brochures, folders, commercial directories and any similar publications must be drawn up in French.

While the section does not mention websites, the Office québécois de la langue française (the “OQLF”, known informally as the “language police”) views section 52 of the CFL as applicable to all advertising documents made available to the public. Accordingly, as set out in the publication Information and Communication Technologies in French, any commercial advertising on a business’ website also comes within section 52.

The Québec Court of Appeal’s decision effectively confirms that websites of businesses carried on in Québec are subject to section 52 of the CFL and must be provided in French (or bilingual with French given equal prominence pursuant to section 89 of the CFL).

Every business operating in Québec should be aware of this requirement, and the other requirements of the CFL, and ensure that they comply with same.

Do you require assistance in this area? If so, contact us here

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On October 23, 2018, the Conservative-led Government of Ontario announced Bill 47, Making Ontario Open for Business Act, 2018. If Bill 47 passes, it would make a number of significant changes to the Employment Standards Act, 2000 and the Labour Relations Act, 1995, including repeals of many of the workplace reforms made last year by the then-Liberal government.

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Amendments to Canada’s federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), are coming into force on November 1, 2018. These amendments impose upon organizations mandatory reporting, notification, and record-keeping requirements in the event of a privacy breach. The new rules are intended to ensure that Canadians receive sufficient information about privacy breaches regarding their personal information, to promote better data security practices by organizations, and to harmonize with the privacy laws in other jurisdictions (most notably with the European Union’s General Data Protection Regulation).

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The distinction between employees and independent contractors has always been an important one in Ontario because while employees are covered by the protections of the Employment Standards Act, 2000 (e.g. sick pay, maternity leave, etc.), independent contractors are not.

While there is no simple formula to determine whether a worker is an employee or an independent contractor, the Ontario government has outlined some factors to consider when trying to make this determination.

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