Lawyer Profile
Josiane L’Heureux
Montréal, Québec
Overview
On May 11, 2023, the Fighting Against Forced Labour and Child Labour in Supply Chains Act, S.C. 2023, c. 9 (the “Act”) was passed. The purpose of this Act is to implement Canada’s international commitment to contribute to the fight against forced labour and child labour, and to require certain entities to report on the measures they have taken to reduce the use of forced labour and child labour. The Act came into force on January 1, 2024, and reporting entities and federal institutions were required to submit their first report under the Act by May 31, 2024. In addition, Public Safety Canada (the “Government”) released the Guidance for reporting entities. Scope of the Act The Act applies to government institutions and to any corporation, partnership, trust or other unincorporated organization that (i) is listed on a stock exchange in Canada or (ii) has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: (a) it has at least $20 million in assets (b) it has generated at least $40 million in revenue (c) it employs an average of at least 250 employees (collectively, the “entities”) Or (iii) is prescribed by regulations. The obligation to report applies to any entity (a) producing, selling or distributing goods in Canada or elsewhere; (b) importing into Canada goods produced outside Canada; or (c) controlling an entity engaged in any of these activities. Entities are considered to be operating in Canada if they produce, sell or distribute goods in Canada. They may also be considered to be operating in Canada if they have employees, if they make deliveries, purchases or payments in Canada, or if they have bank accounts in Canada. It is important to note that doing business in Canada does not require having a place of business in Canada. Forced Labour vs. Child Labour For the purposes of this Act, child labour is defined as labour provided by minors that (i) is provided or offered to be provided in Canada under circumstances that are contrary to the laws applicable in Canada; (ii) is provided or offered to be provided under circumstances that are physically, socially or morally dangerous to them; (iii) interferes with their schooling; or (iv) constitutes the worst forms of child labour, as defined in article 3 of the Worst Forms of Child Labour Convention.1 Forced labour is labour provided by a person (i) in circumstances in which it would be reasonable to believe that their safety or that of a person known to them would be threatened if they failed to provide such labour; or (ii) in circumstances which constitute forced or compulsory labour, as defined in article 2 of the Forced Labour Convention.2 Entities With Reporting Obligations Any entity required to report annually to the Government under the Act must include in its report the steps taken during its previous financial year to prevent and reduce the risk of forced labour and child labour. In order to comply with the obligations imposed by the Act, the entity must also include in its report information on its structure, its activities relating to the production, sale, distribution or importation of goods, as well as the type of goods and place of operation, and the countries or regions involved in its supply chains. Lastly, the report must include a brief explanation of the entity’s due diligence policies and processes regarding forced labour and child labour, information on the training provided to employees, and the parts of its business that carry a risk of forced labour or child labour. Given that the steps taken to prevent and reduce forced labour and child labour can result in a loss of income for vulnerable families, the Act requires entities to identify the measures taken to mitigate such impact on these families. Publication of Reports Entities must not only comply with the format, approval and attestation requirements for their report before submitting it to the Government but also make it available to the public by publishing it on a prominent place on their website. They can submit their report in one of the two official languages, although the Government recommends that reports be published in both English and French. In addition, the Act requires entities incorporated under the Canada Business Corporations Act or any other federal law to provide a copy of the report to each shareholder at the same time as their annual financial statements. Offences and Fines Reporting entities that fail to submit their report or make it available to the public are liable to a fine of not more than $250,000 per offence.3 The senior executives, directors and employees of an entity are also liable to fines and criminal prosecution should the entity contravene the Act.4 Any offence committed by an entity may also entail reputational risk. Our Advice Introducing policies, procedures, audit tools and other rules—or improving existing ones—to prevent and reduce modern slavery is essential. Such policies and rules may include procedures for reporting and an investigation process to address concerns, as well as a whistleblower protection system (whistleblower policy or similar measures). Businesses should think about how they select suppliers and whether they should adopt rules for monitoring the activities of their suppliers and partners. They should also consider updating their agreements with existing suppliers or partners to ensure compliance with the requirements of the Act, in particular by including provisions prohibiting the use of forced labour or child labour in suppliers’ business activities. Other measures may include raising awareness and training staff, directors and officers on how to implement company policies and procedures aimed at identifying and preventing forced labour and child labour. Our team has developed tools to help reporting entities identify the parts of their business that carry a risk of forced labour or child labour. We will be monitoring upcoming government publications in response to the first reports that reporting entities submit and, if need be, we will release another article to clarify reporting obligations. For any questions or advice relating to your obligations under the Act, do not hesitate to contact our team. Section 1 of the Act; see also the Worst Forms of Child Labour Convention, adopted in Geneva on June 17, 1999, article 3: Link Section 1 of the Act; see also the Forced Labour Convention, adopted in Geneva on June 28, 1930, article 2: Link Section 19 of the Act. Section 20 of the Act.
On April 19, 2024, the Supreme Court of Canada rendered its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, marking the end of an almost 15 year-long debate on the freedom of association of managers and their exclusion under the Labour Code. The facts The Association des cadres de la Société des casinos du Québec (the “Association”) represents first-level managers at the province’s four casinos operated by the Société des casinos du Québec (the “Société”). The Association is a professional syndicate within the meaning of the Professional Syndicates Act. Although the Association is not governed by Quebec’s Labour Code (the “Code”), given the exclusion of managers from the notion of “employee” provided for in theCode, this exclusion does not prevent members of the Association from associating. In fact, in 2001, the Association and the Société signed a memorandum of understanding governing certain aspects of the collective labour relations. However, faced with the inability of the Association’s members to access the remedies offered by the Code, such as protections against bad-faith bargaining, the right to strike and the specialized dispute resolution mechanism, in 2003 the Association lodged a complaint with the International Labour Organization’s Committee on Freedom of Association. Dissatisfied, the Association then filed a petition for certification under the Code in 2009, requesting that the exclusion of management staff from the definition of “employee,” and therefore from the unionization process under the Code, be declared unconstitutional, as it infringed on the freedom of association protected by the Charters. The Société raised an exception to dismiss, since managers are excluded from the application of the Code. Proceedings prior to the Supreme Court of Canada In its 2016 decision, the Administrative Labour Tribunal (the “ALT”) found that the exclusion of managers from the definition of “employee” violates the freedom of association of the first-level managers represented by the Association, and that this infringement is not justified in a free and democratic society. The exclusion was declared inoperative in the context of this application. According to the ALT, the Association does not benefit from a meaningful process for bargaining in good faith for its members’ working conditions. Furthermore, the Association members’ right to strike is infringed without any other mechanism being provided, which, according to the ALT, constitutes a substantial infringement of the right to collective bargaining. In 2018, the Superior Court of Québec allowed the Société’s application for judicial review. The Superior Court concluded that the exclusion of managers from the Code does not contravene the freedom of association. Employers must be able to trust their managers and, for the sake of employee unionization, there can be no ambiguity about managers’ allegiance1. Managers can organize and associate, but not under this law. In 2022, the Court of Appeal overturned the Superior Court’s ruling and reinstated the ALT’s decision. According to the Court of Appeal, the ALT was right to conclude that the effects of the exclusion from the Labour Code regime constitute substantial interference with the exercise of the freedom of association. The Supreme Court of Canada's decision In a new development on April 19, the Supreme Court of Canada allowed the Société’s appeal, essentially ruling that the exclusion of managers from the Code does not violate the freedom of association. Although the seven (7) judges hearing this case concluded that the Dunmore analytical frameworkis the relevant one, there are applicable concurring reasons. In the opinion of the majority of the Court, a two-part test must be applied: The Court must consider whether the activities in question fall within the scope of freedom of association; and The Court must consider whether the statutory exclusion substantially interferes with those activities, in purpose or effect. In this case, the Association alleged that by excluding managers from the application of the Code, the government was preventing its members from “engaging in a process of meaningful collective bargaining with their employer, with constitutional protection for the Association, sufficient independence from the employer, and the right to recourses if the employer does not negotiate in good faith."2 According to the Supreme Court, the Association’s claim was indeed based on an activity that is protected under the freedom of association, thus passing the first part of the test. However, the Association’s claim fails the second part of the test. The Supreme Court concluded that the exclusion of managers from the Code’s definition of an employee does not substantially hinder the Association’s activities. As the Superior Court had found, this exclusion is intended to distinguish managers from employees and avoid conflicts of interest, in particular by ensuring that the employer can trust its managers and that employees can protect their own interests. The memorandum of understanding between the Société and the Association demonstrates that the members are able to associate and negotiate with the employer. Moreover, this protocol enables the Association to take legal action before the ordinary courts of law in the event of non-compliance with its terms and conditions. According to the Supreme Court, “the right to meaningful collective bargaining does not guarantee access to a particular model of labour relations."3 Conclusion After several years of debate, the Supreme Court of Canada has finally settled the question of the constitutionality of the exclusion of managers from Quebec’s collective labour relations regime set out in the Labour Code. As this exclusion does not violate managers’ freedom of association, they will not be able to validly file petitions for certification under the Code. However, they will be able to exercise their freedom of association in other ways, as in this case, through the Professional Syndicates Act, as well as before the ordinary courts of law. This decision is a positive one for Quebec employers, as it protects the structure of workplaces and the allegiance of managers within organizations. 2018 QCSC 4781, para. 116 et seq. 2024 SCC 13, para. 47. 2024 SCC 13, para. 55.
Your guests have arrived and it’s time to give the toast! Are you ready to celebrate? December is undoubtedly the most festive month of the year. It’s a great opportunity for employers to thank their employees for the services rendered during the year, but also for employees to interact with their colleagues in a relaxed atmosphere. With the parties just around the corner, it’s a good time to remind employers that maintaining the health, safety and dignity of all participants is crucial when organizing such events. Even in these happy times, the employer’s obligation to ensure the health and safety of employees extends beyond normal work hours and outside the regular work premises. Here are some tips to help you celebrate in a happy, respectful and safe atmosphere for all. Moderation is always in good taste First, preventing undesirable situations begins with controlling the consumption of alcohol and other substances that can cause impairment. As psychoactive products that directly and quickly affect brain function, excessive alcohol or cannabis consumption is certainly the main factor that can lead to misdemeanour during holiday parties. When employees participate in employer-sponsored activities, they attend as part of their job: they thus have the same status that they do when at work within the company1. Consequently, employers retain their management and leadership powers during social events. Thus, they can sanction any misconduct committed during a social event. In order to limit alcohol consumption and reduce the risk of incidents, employers may, in particular: Distribute a limited number of alcohol vouchers; Stop serving alcohol a few hours before the event ends; Limit the open bar formula, if you have one, to a predetermined schedule. As for the use of cannabis and cigarettes, including e-cigarettes, it’s worth remembering that your guests must respect the smoking ban in or near the premises. Harassment prevention Though the movement concerning harassment has prompted employers to increase their efforts to prevent sexual misconduct in the workplace, the Act respecting labour standards already obliged employers, since 2002, to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it2. Employers are not exempt from this obligation when they invite employees to a social event. A safe trip back home At the party’s end, employers should make sure their employees get home safely by providing ways to travel other than getting behind the wheel, including: Providing taxi vouchers to prevent road accidents caused by impaired driving; Reimbursing employee travel expenses; Encouraging employees to contact organizations offering driver services. Company holiday parties have become a must. Beyond employer obligations and responsibilities, such festivities are a great opportunity for employees to forge ties with their colleagues outside the more rigid work environment and for employers to show their appreciation and thank their employees. Happy festivities to all! Association internationale des machinistes et des travailleuses et travailleurs de l'aérospatiale, district 140, section locale 2309 et Servisair (Avo Minassian), D.T.E. 2009T-448; Nettoyage de drains A. Ducharme (2000) inc. et Syndicat national des travailleuses et travailleurs de l’environnement (F.E.E.S.P.-C.S.N.), D.T.E. 2001T-1030. Sec. 81.19 A.L.S.
Lavery is proud to announce that 42 partners are ranked among the leading practitioners in Canada in their respective practice areas in the 2026 edition of The Canadian Legal Lexpert Directory. The following Lavery partners are listed in the 2026 edition of The Canadian Legal Lexpert Directory: Asset Securitization Brigitte M. Gauthier Banking Étienne Brassard Class Actions Laurence Bich-Carrière Myriam Brixi Marie-Nancy Paquet Construction Law Laurence Bich-Carrière Nicolas Gagnon Marc-André Landry Ouassim Tadlaoui Corporate Commercial Law Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Alexandre Hébert Édith Jacques Paul Martel André Vautour Corporate Finance & Securities Josianne Beaudry René Branchaud Corporate Mid-Market Étienne Brassard Jean-Sébastien Desroches Alexandre Hébert Édith Jacques André Vautour Employment Law Benoit Brouillette Frédéric Desmarais Simon Gagné Richard Gaudreault Marie-Josée Hétu Guy Lavoie Josiane L’Heureux Zeïneb Mellouli Environment Valérie Belle-Isle Family Law Caroline Harnois Awatif Lakhdar Elisabeth Pinard Infrastructure Law Nicolas Gagnon Insolvency & Financial Restructuring Yanick Vlasak Insolvency Litigation Jean Legault Ouassim Tadlaoui Yanick Vlasak Jonathan Warin Intellectual Property Chantal Desjardins Alain Y. Dussault Isabelle Jomphe Eric Lavallée Labour (Management) Benoit Brouillette Brittany Carson Simon Gagné Richard Gaudreault Marie-Josée Hétu Marie-Hélène Jolicoeur Guy Lavoie Carl Lessard Zeïneb Mellouli Litigation - Commercial Insurance Dominic Boisvert Martin Pichette Litigation - Corporate Commercial Laurence Bich-Carrière Marc-André Landry Litigation - Product Liability Laurence Bich-Carrière Myriam Brixi Medical Negligence Anne Bélanger Mergers & Acquisitions Josianne Beaudry Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Alexandre Hébert Édith Jacques Mining Josianne Beaudry René Branchaud Occupational Health & Safety Josiane L'Heureux Professional Liability Marie-Nancy Paquet Judith Rochette Technology André Vautour Workers' Compensation Marie-Josée Hétu Josiane L'Heureux Guy Lavoie Carl Lessard
Practice Areas
Bar Information
Called to the bar: 1998 (QC)