Monthly Archives: April 2021

Tough Collective Agreement Negotiations: Are Employees Really “Without a Contract”?

By Eliab Taïrou, from our Labour and Employment Law Group

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April 30, 2021 — “The Port of Montreal’s longshoremen have been without a contract since December 2018.”

Throughout successive labour disputes, including the current one between the Maritime Employers Association and the longshoremen of the Port of Montreal, you have probably already read or heard in the news a statement that unionized employees have been “without a contract” since the expiry of their collective agreement. But what does this wording really mean? What is the legal regime in such a situation?

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Podcast: Health Care Employers: Whistleblowing, Retaliation Risks Are On the Rise – Diagnosing Health Care

In this episode of the Diagnosing Health Care Podcast:  Since the start of the COVID-19 pandemic, many jurisdictions have enacted protections from COVID-19-related liability claims through legislation and executive orders. These liability shields, however, may give health care businesses a false sense of security and offer little protection when it comes to employment claims.

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Access to Documents Used by an Insurer to Deny Coverage

By Jeanine Guindi, from our Insurance Law Practice Group

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April 29, 2021 – Is an insurer compelled to release to its insureds all documents, especially expert reports, used to substantiate a decision to deny coverage?

In Gauvreau c. Promutuel Assurance, 2020 QCCAI 347, two insureds had filed a claim with their insurer following an incident in which their boat had been damaged. The insurer denied coverage. The insureds asked it to review its decision, also requesting copies of the documents in their file.

The insurer released copies of the estimates of the repair work to be carried out, as prepared by several firms. It refused to disclose the expertise reports and quotes filed by three other experts. The insureds then applied to Commission d’accès à l’information requesting the release of the information concerning them, under the Act respecting the protection of personal information in the private sector, CQLR c P-39.1.

The insurer raised s. 39 par 2, pursuant to which “[a] person carrying on an enterprise may refuse to communicate personal information to the person it concerns where disclosure of the information would be likely to […] affect judicial proceedings in which either person has an interest.” Based on earlier cases, such communication may be denied if all of the following conditions are met:

  • It consists of personal information concerning the applicant;
  • The refusal is related to judicial proceedings either pending or about to be filed;
  • Disclosing the information would, in all likelihood, have an impact on the judicial proceedings;
  • The likelihood of judicial proceedings being instituted and how they could be affected must be evaluated when the enterprise refuses to disclose the information requested.

The Commission stated that the record did contain personal information: the first condition was met.

The imminence of judicial proceedings had to be appraised considering all the facts on record since no actual proceedings had been filed. First, the Commission stated that mere hypothetical proceedings are not likely proceedings, and proceeded to analyze the circumstances of the case.

The insurer argued that the insureds closely monitored their communications with the insurer, which could be a hint of upcoming proceedings. It also argued that the insureds had declined to refer their case to arbitration and had taken steps with the Autorité des marchés financiers,(AMF) including filling a complaint form. Therefore, in the insurer’s view, the sole response to its denial of coverage was to take judicial proceedings. The Commission disagreed.

Representatives of the insurer testified that the insureds never mentioned the possibility of filing judicial proceedings. As to the refusal of arbitration, it seems the insureds were waiting for the result of the review of their claim and did not have all the information required to make a final decision.

Although the request for access to information and the insurer’s decision were concurrent, the Commission held that the process before the AMF, which was still ongoing, remained an alternative, especially since it was admittedly not a judicial process. The conclusions sought by this process, a review of its decision by the insurer, also confirm the insureds’ intention. In the Commission’s view, at no time during their communications with the insurer did the insureds raise the possibility of taking the case to court.

The chronology of facts and the communications between the insureds and their insurer led the Commission to conclude that the insureds’ discontent with the insurer’s decision not to compensate their loss was not an indication of upcoming judicial proceedings.

Key point: the imminence of judicial proceedings depends on the facts and circumstances of each case The Commission must ensure that proceedings are more than possible or hypothetical: the facts must lead to the conclusion that proceedings are almost certain.

In this case, since no judicial proceedings were imminent, the conditions of s. 39 were not met: the Commission ordered the insurer to release the expert reports in the insureds’ files.

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Video: COVID-19 Vaccine News – Employment Law This Week

As featured in #WorkforceWednesday:  This week, several COVID-19 vaccine news developments and updates were announced for employers.

Paid Leave Tax Credit for Employers

President Biden recently announced employers that offer full pay to workers for vaccinations and recovery may be entitled to a paid leave tax credit.

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Podcast: Whistleblowing, Retaliation Risks Are On the Rise for Health Care Employers – Diagnosing Health Care

In this episode of the Diagnosing Health Care Podcast: Since the start of the COVID-19 pandemic, many jurisdictions have enacted protections from COVID-19-related liability claims through legislation and executive orders. These liability shields, however, may give health care businesses a false sense of security and offer little protection when it comes to employment claims.

Epstein Becker Green attorneys Denise Merna DadikaGregory Keating, and Elena Quattrone discuss the unintended liability consequences health care employers must consider as they transition more employees back to in-person work and the ways to mitigate increasing whistleblower and retaliation risks.

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Rainmaking Recommendation from Jaimie Field: 10 Ways to Meet Your Ideal Clients

Join us for this week’s rainmaking recommendation from trainer and coach, Jaimie Field.

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Prospective Ideal clients – these are the people and businesses with whom you would like to do business.  But, often I am asked the question: What if they already have a lawyer or law firm with which they work?

My answer is quite simple:  “So what?”

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ILN Today Post

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Impact on Digital Media

Introduction of the Information Technology Rules:

After years of discussions and debates, the Ministry of Electronics and Information Technology, Government of India has notified new rules under the Information Technology Act, 2000 (“IT Act”) for monitoring social media digital media platforms. The new rules, viz. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) inter alia aims to serve a dual-purpose: (1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter etc.) to prevent their misuse and abuse; and (2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution. The Intermediary Guidelines have been framed in exercise of powers under section 87(2) of the IT Act and supersede the previous Information Technology (Intermediary Guidelines) Rules, 2011.

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ILN Today Post

Additional Tax Credits to Employers Who Extend FFCRA Benefits Through September 2021

The American Rescue Plan Act of 2021 (ARPA), signed into law by President Biden on March 11, 2021, included a voluntary extension of the Families First Coronavirus Response Act (FFCRA). The extension allows eligible employers to continue to receive tax credits for voluntarily offering FFCRA benefits to employees through September 30, 2021. Read more…

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Video & Podcast: Employers and the American Rescue Plan – Employment Law This Week

As featured in #WorkforceWednesday: This week, our special podcast series, Employers and the New Administration, concludes with a look at how President Biden’s landmark American Rescue Plan impacts employers.

As President Biden’s first 100 days come to a close, his $1.9 trillion American Rescue Plan Act of 2021 (ARPA) is having a big impact on employers. The plan, one of the largest stimulus bills in history, attempts to provide relief to constituents affected by the COVID-19 pandemic through several ways, among those ways are changes to employee benefits and compensation.

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Rights in audiovisual works under Copyright Law

Authors’ rights

According to the Copyright Law, authors of audiovisual works have various rights, including:

  • producing fixations or reproductions of the work;
  • making the work available to the public (eg, by publishing it on an on-demand video service);
  • broadcasting the work on TV or the radio; and
  • communicating the work to the public.
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