Canadian Lawyer

November 2021

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Page 12 of 43 11 it as a major compliance initiative for 2022 and beyond." T h e A c t i n t r o d u c e s a m e n d m e n t s "that will cause structural changes" in the way organizations do business, says Chantal Bernier, head of the Privacy and Cybersecurity practice group for Dentons Canada LLP in Ottawa. First, she says, mandatory privacy impact assessments (PIAs) will now be required for any project of acquisition, development and redesign of an information system project or electronic service delivery project involving personal information; the transfer of personal information outside of Québec; and the communication of personal infor- mation without consent for study, research or statistics. The requirements mean that "organiza- tions must create processes internally to determine when their activities meet the requirement to have a PIA," Bernier adds, as well as how to go about them. Second, since the Act strengthens the requirements for accountability, it requires organizations "to step back, look at their compliance structures and processes, and ask themselves if they still meet the test." Third, the Act regulates the use of de-identified and anonymized informa- tion and further restricts its usage. The Bill defines de-identified and anonymized infor- mation as that which "no longer allows the person to be identified directly or indirectly." And fourth, organizations using automatic decision-making will need to update their privacy policies and create new mechanisms to address novel individual privacy rights such as the right to be forgotten and accessing information on the effects of automatic deci- sion-making. Individuals will now have the right to obtain the information that went into automated decision-making and challenge decisions made through those processes. French-language bill will affect employment law Q&A Alexandre Fallon Partner OSLER HOSKIN & HARCOURT LLP In May, the Government of Quebec introduced Bill 96, An Act Respecting French, the Official and Common Language of Québec, which proposes significant amendments to the Charter of the French Language. Canadian Lawyer spoke with Alexandre Fallon, a Montreal civil litigator, about the changes for employers and employees. What are the current requirements for job advertisements, and how would the Act change these? Currently, companies that wish to advertise for job positions open to Quebec residents must post those positions in some manner in French. Bill 96 proposes to add additional requirements, namely that the French version be published simultaneously, using similar means and reaching an audience of comparable size. In other words, enterprises will have to give more thought to the placement of the French version of their job advertisements, and in many cases, it will be safer to publish bilingual job postings for positions open to Quebec residents. How would the Act change contracts of employment? There's a transition period for existing employees whereby if their current employment contract is not in French, they will have a period of one year after the bill is enacted to request from their employer that they receive a French copy of their employment agreement and that the French version will become the operative or enforceable version. Going forward, employment contracts that contain standard clauses will have to be presented to employees in French before an employee can elect to enter into the employment agreement in English. This will require translation of all types of standard form contractual documentation, like incentive plans, policies, intellectual property assignments, etc. Will the Act create a stricter test for making knowledge of English a condition of employment? Yes, it develops a three-prong test that employers will have to meet (and be able to demonstrate that they met at the time of requiring knowledge of English or another language other than French): 1. That the actual language needs of the position were assessed; 2. That the existing employees with knowledge of the other language were insufficient to carry out the duties that require the knowledge of the other language; and 3. That the employer restricted as much as possible the number of positions that require knowledge of another language. What is the broader significance of Bill 96? The implications are much broader than simply the labour component; these are the most significant changes to language laws in Quebec since they were first adopted in the 1970s. Most notably, private rights of action are introduced, including the right to challenge the enforceability of agreements. Accordingly, the litigation and monetary risks are very much increased, so this is food for thought for anyone who does business in Quebec, in whatever sphere and with whatever target audience. Fast facts: Years in law: 12 On the Act's new private rights of action and recourse: "I think complaints to the regulator will go down but be replaced with actions seeking damages, including punitive damages, which is an entirely new business risk for enterprises doing business in Quebec." On the Act's requirements for written communications: "The baseline requirements for written communications will go beyond the current requirement of making documents pertaining to employment conditions available in French. We're moving towards a much broader provision that essentially says an enterprise, irrespective of its size, has to respect the employee's right to work in French, in particular by providing written communications and training documentation to the employee in French." "Our clients are looking at [the Act] as a major compliance initiative for 2022 and beyond."

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