By Jacques Paquin, Senior Partner, Desjardins Ducharme Stein Monast, G.P.*
An affordable, highly educated workforce, competitive industrial costs, easily accessible capital and financing, NAFTA, and the presence of numerous high-tech companies and world-class research centres make Québec one of the best places to invest in North America.
Persuasive reasons to make Québec your next business site1
Strategically situated in North-eastern North America, Québec is at the core of a market of 130 million consumers within a 600-mile radius, in cities such as Toronto, New York, Boston, Philadelphia and Washington, D.C. Thanks to the North American Free Trade Agreement, Québec also enjoys direct access to a market of 390 million people with a Gross Domestic Product of US $8 trillion.
Through NAFTA, businesses located in Québec are also eligible to bid on government contracts totalling more than US $75 billion in Canada, the United States and Mexico. The Canada-Chile Free Trade Agreement also provides Québec-made goods and services a foothold in Latin America.
Québec has a high concentration of firms in knowledge-based industries such as aerospace, biotechnology, telecommunications and multimedia. Hundreds of international companies operate in Québec to take advantage of one of North America's most cost-effective hubs of technology. Québec boasts a well-educated population, half of which is fluent in French and English, and offers a highly educated and affordable workforce which is recognized throughout North America for its inventiveness, know-how and stability.
With its advantageous tax treatment of research and development expenditures, Québec is one of the world's most attractive business sites for R&D-intensive enterprises.
A KPMG study of North America and European cities found Montréal to be the least expensive location among the larger cities surveyed to set up and operate a business. Montréal scored better than Toronto, Vancouver, Columbus (Ohio), Boston and Minneapolis.
Québec provides more venture capital than other Canadian regions. Over $4 billion in venture capital is generated by funds managed in Québec. This figure represents 48% of all venture capital raised in Canada.
Québec welcomes foreign investment and business ventures. The availability of guaranteed low cost electricity, of business incentives, of long-term financing by lending institutions and of specialised services in the fields of high technology and research should be of definite interest to any non-resident desiring to find a new territory in which to branch out or to diversify or to start an entirely new business venture.
At first glance, the operation of a business or industry in a province where both the predominant language and the civil laws vary from the other common law provinces may appear burdensome to foreign interests. A more thorough analysis will reveal, on the whole, that these characteristics are not really negative or very demanding (some of them are even advantageous) and that they are easily offset by other favourable features found in Québec, allowing for an easy adaptation to these variants.
Canada's constitution divides legislative authority between the federal Parliament and the provincial legislatures. For example, the federal Parliament has authority over banking, competition (anti-trust) law and immigration, while the provincial legislatures have authority over securities laws, property rights and employment standards, to name a few. In some areas, the federal Parliament and the provincial legislatures have overlapping legislative authority. Therefore, businesses may have to deal with federal regulators and one or more provincial regulators.
Québec legal system is based on civil law derived from French sources. Québec has a modern Civil Code which was given effect as of January 1, 1994 and which constitutes a codification of general principles of law applicable in the province.
French is the official language of Québec. The Charter of the French Language confers on every person the right to deal in French with the public services, hospitals and other social services, public utilities, professional corporations, employees' associations and all firms doing business in Québec. Laws and regulations are drafted in both English and French, and both versions are equally authoritative.
Government bodies use French exclusively in dealing with corporations established in Québec. Contracts with the government must be drawn-up in French but may be in another language if the other party is from outside Québec. Contracts between business corporations may be in either French or English.
All employees have the right to work in French regardless of the size of the employer's business, and all consumers of goods and services have the right to be informed and served in French. The Charter of the French Language provides that all catalogues, brochures and inscriptions on products and warranties as well as on other written material supplied with products must be in French. Such documents may also be in one or more other languages, provided that the text in the other language(s) is not given greater prominence than the French text.
All firm names must be in French but may include a version in another language provided that the French version of the firm name has equal prominence.
A person intending to do business in the Province of Québec must determine the entity through which it wishes to do its business. The choice of the business entity must be carefully tailored to the investor's needs and business objectives. The type of entity used will depend upon a number of factors including the nature of the business, the significance to the parties of limited liability, tax considerations and so on. Several alternatives are possible.
Business entities such as sole proprietorships, partnerships or joint ventures are governed by the laws of Québec while corporations can be constituted either under the Companies Act of Québec or the Canada Business Corporations Act enacted by the federal legislature of Canada. By far the most common method of carrying-on business in Québec is through a corporation.
The legal structure of corporations created under either legislation is very similar but substantial differences exist, particularly in connection with the protection given to minority shareholders. The federal act grants greater protection to minority shareholders while the Companies Act (Québec) permits greater flexibility regarding corporate management. The main disadvantage of a federal corporation is that the majority of the members of its board of directors must be Canadian residents, which is not the case for companies incorporated under Québec law.
The legal status of corporations created under federal jurisdiction is recognised throughout Canada although a federally-incorporated corporation must be registered with the provincial authorities in the province(s) where it intends to carry on business. The legal status of corporations created under provincial jurisdiction is usually limited to the territory of its province of incorporation.
However, all Canadian provinces provide for the issue of so called "extra-provincial licences" entitling provincially-incorporated corporations to carry on business in such other provinces of Canada. The question of where to incorporate may well be answered, at least in the first instance, by reference to the geographic area where the business will be carried on. As a general rule, investors who intend to carry on business in more than one province of Canada usually incorporate under the Canada Business Corporations Act. If, on the other hand, it is anticipated that business will be carried on only in the province of Québec, then incorporation in that province should suffice.
The incorporation of a federal or Québec corporation is a simple process. It involves the filing of certain forms with government officials containing basic information about the proposed corporation and its incorporators, the payment of a nominal fee and the selection of an acceptable name.
A foreign corporation, other than a corporation constituted under the federal laws of Canada, must obtain an extra-provincial licence to carry on business in Québec. These licences are obtained provided that the corporation: (i) files a copy of its charter or Articles of incorporation with the Inspector General of Financial Institutions, (ii) files a power of attorney appointing a chief agent in Québec for the purpose of receiving service in any suit or proceedings instituted against it, (iii) pays the fees required for the issue of the licence, and (iv) adopts a French version of its corporate name or adopts a French trade name for the purpose of its activities in Québec. Only the French version of its corporate name or its French trade name may be used in Québec.
Under the Canadian constitution, the federal government has a general power to tax and the ten provinces have the power to make laws in respect of direct taxation within their province in order to raise revenues for provincial purposes.
The federal government imposes an income tax on persons who are residents and non-residents of Canada. Citizenship is not the basis for taxation. The word "persons" includes individuals, corporations, trusts and estates but excludes partnerships and other unincorporated associations. Taxpayers resident in Canada are taxed on their world income. Non-residents are taxed in respect of Canadian source income. In case of passive income (interests, rents, royalties, dividends, administration fees, estate or trust income, etc.) received from Canada, non-residents are subject to a withholding tax. In case of employment income or income derived from carrying on business in Canada, the tax is computed in accordance with the rules generally applicable to residents, while specific rules apply to the disposition of taxable Canadian property.
The Québec government administers its own personal and corporate income tax systems. It imposes an income tax on employment income derived by individuals who are resident in Québec, on the last day of a taxation year, no matter where the employment was exercised. However, individuals non-resident in Canada are taxed in Québec on their employment income earned in Québec. Individuals resident in Québec and carrying on a business through an establishment in Québec and in other provinces are subject to tax in Québec on the proportion of their business income which is attributable to the establishment in Québec computed in accordance with specific rules.
Corporations are taxed in Québec if they have an establishment situated therein, regardless of their place of residence. If a corporation has an establishment in Québec and another one elsewhere, Québec will only tax the income attributable to the establishment in Québec.
The government of Québec does not impose any withholding tax on passive income paid to non-residents. Capital gains earned by non-residents on taxable Québec property are subject to tax.
The above rules are subject to the application of the bilateral tax treaties concluded by Canada. Any amount which is exempt from tax in Canada because of the application of a tax treaty is also exempt from tax in Québec under Québec tax laws.
Under the laws of the Province of Québec, there are no wide application statutory provisions prohibiting any type of real estate transaction involving a non-resident whether it be a purchase, a financing or a lease. All real estate transactions are primarily governed by the Civil Code of Québec; a certain number of more real estate oriented statutes might also apply given the specific facts surrounding a particular transaction.
The rules provided for by the Civil Code of Québec and those real estate oriented statutes are quite straightforward and, at least for the said code, have been the object of numerous court cases through the years. Therefore the legal climate for real estate transactions is by no means obscure.
The rules governing the leasing of real estate property whether commercial or residential can all be found in the Civil Code itself. Very few of them are applicable to commercial leasing so landlords and tenants can be almost as creative as they like in their leases. Even if landlords have their "standard documents" and are rather reluctant to make any changes to those, one must bear in mind that there are no such thing as a standard offer to lease or a standard lease agreement when it comes to commercial leasing.
Labour and Employment Law
In Québec, the provincial legislature has full authority to enact legislation in the field of labour and employment law save as regard employees of federal undertakings. Federal crown corporations and federally regulated businesses (i.e. shipping, navigation, interprovincial transport, telecommunications, banks) are subject to legislation enacted by the Parliament of Canada. There are, therefore, two separate legislative schemes regulating individual employment standards, collective bargaining, health and safety in the work place, discrimination in employment, sexual harassment and pay equity. Both the federal and provincial governments have set up compulsory pension schemes and have enacted legislation governing private supplemental pension plans. However, unemployment insurance legislation is within the sole jurisdiction of the Parliament of Canada and applies to all employees whether engaged in a provincial or federal undertaking. Worker's compensation on the other hand is within the jurisdiction of the provincial legislature.
The Civil code of Quebec sets out general provisions dealing with employment contracts.
The Labour Standards Act sets out the minimum conditions of employment that are in force in the province. These conditions include minimum wage, statutory holidays, annual vacation, maternity leave, hours of work and overtime. They are of public order. Collective agreements and individual contracts of employment can only contain equal or more advantageous conditions.
The Labour Standards Act contains also, as other statutes, a certain number of provisions dealing with illegal terminations. For example, it is illegal to terminate, suspend or transfer an employee on the grounds that such employee is pregnant, has been the object of a seizure by garnishment, or has refused to work beyond regular hours of work when such employee has obligations relating to the care, health or education of a minor child. An employee dismissed for an illegal motive may file a complaint before the "Commission des normes du travail" and request his reinstatement with compensation for the loss of wages.
Under the provisions of the Act respecting Occupational Health and Safety, employers must take all necessary measures to protect the health, safety and physical well-being of their employees. An employee may refuse to perform work if he/she has reasonable grounds to believe that performance of such work will expose him/her to harm or danger. However, the employee may not refuse to work if his/her refusal puts the safety of another person in immediate danger or if the conditions under which the work is to be performed generally prevail in the industry. The "Commission de la santé et de la sécurité du travail" (C.S.S.T.) is responsible for the application of the Act.
The Labour Code sets out the framework of collective bargaining relations in Québec. Under such legislation, every employee has the right to belong to the employee association of his/her choice, and to participate in the formation, activities and management of such association. It is illegal to suspend or dismiss an employee for the reason that he/she has engaged or joined in the formation of a trade union.
A duly certified trade union may engage in collective bargaining with an employer, the object of which is the conclusion of a collective agreement. A collective agreement is binding upon the employer, the trade union and all present or future employees contemplated by the bargaining unit. All disputes and grievances arising out of the application or interpretation of a collective agreement must be submitted to arbitration. The decision of the arbitrator is final and without appeal.
Work stoppages while the collective agreement is in force are strictly prohibited. However, a trade union may resort to a strike and an employer may lock out its employees during certain specified periods following the expiry of a collective agreement.
The Labour Code also provides that the sale or operation by a third party of an undertaking does not put an end to any certification granted under the Code or to any collective agreement. The new employer is bound by the certification and the collective agreement and becomes a party to any proceeding relating thereto in the place and stead of the former employer.
The Québec Charter of Human Rights and Freedoms prohibits discrimination on the basis of race, colour, sex, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, social condition and handicap. It is therefore illegal for an employer to practice discrimination with respect to the hiring, apprenticeship, duration of a probationary period, vocational training, promotion, transfer, displacement, laying off, suspension or dismissal of a person or in the establishment of categories or classes of employment.
Also, every employer must, without discrimination, grant equal salary or wages to employees who perform equivalent work at the same place. However, a difference in salary or wages based on experience, seniority, years of service, merit, productivity or overtime is not considered discriminatory. The "Commission des droits de la personne" is responsible for the application of the Charter of Human Rights and Freedoms. An employee who has been the object of discrimination may file a complaint before the Commission. Failing agreement between the employer and employee, the complaint is resolved through arbitration or before the Human Rights Tribunal.
The Québec Pay Equity Act which was introduced late in 1996 is designed to eliminate discrimination in salary between men and women and is based on the principle of equal pay for work of equal value.
Federal crown corporations and federally regulated businesses are subject to the Canada Labour Code, the Employment Equity Act and the Canadian Human Rights Act in the above mentioned matters.
Québec has enacted a comprehensive workers compensation scheme which provided benefits for workers disabled as a result of an industrial accident or disease. The plan, which is administered by the C.S.S.T., is funded through employer contributions.
The Development of Manpower Act provides that all Québec businesses must spend at least one percent of their total payroll on employee training annually. The allowable training expenditures are defined in a government regulation and must be for the benefit of all employees, including apprentices.
To provide retirement income, the Parliament of Canada has set up a universal contributory-earning pension scheme, the Canada Pension Plan. The plan provides benefits to workers form age 60 as well as benefits for widows, orphans and the disabled. Contributions are compulsory for individuals between the ages of 18 and 65 and are based on a percentage of earnings.
In Québec, the provincial legislature has set up its own statutory contributory earning pension plan similar to that enacted by the Federal Government.
Both jurisdictions have enacted legislation dealing with the regulation of pension plans set up by employers. The Québec legislator has also adopted legislation dealing specifically with the distribution of surplus assets in the fund resulting upon termination of plan. The "Régie des rentes du Québec", which is entrusted with the application of the Supplemental Pension Plans Act, may not approve the termination of a plan until the question of the distribution of the surplus assets has been resolved by the parties or through arbitration or by the Courts. Prior to termination, no employer may have access to surplus assets except by way of a contribution holiday.
Environmental Laws and Regulations
Generally, the pattern of North American environmental legislation is somewhat similar. The laws are structured so as to a) regulate emissions of certain contaminants and prohibit the emission of those which are deemed to be especially dangerous; b) regulate and maintain surveillance over all those industries and activities which are likely to pollute; c) make the user pay for the environmental damages his activities have causes; and d) impose strict liability on those who violate the law or environmental standards and to levy penalties on those who commit offences.
Both the Canadian Environmental Protection Act, S.C. 1988, c. 22 and the Environment Quality Act, R.S.Q., c. Q-2 (hereinafter EQA) reflect this general pattern.
Each succeeding amendment to the body of federal and provincial legislation touching the domain of the environment has brought higher standards and sanctions, such as clean-up costs – both to the polluting corporation and to its officers and directors – as well as stringent new licensing procedures for industrial activity and waste management. Not only are the polluting industries themselves and the commercial real estate market affected by the potentiality of incurring the costly burdens of environmental contamination and clean-up costs, but the financial services sector which provides capital to these undertakings has also become vulnerable to some part of the same liability. However, the exposure of lenders as is presented in some case law ought not to be overstated. The instances of lenders rendered subject to the full weight and direct liability of environmental legislation in Canada are not common, the general principle being that the lender's connection is too remote when he merely acts as a source of capital rather than as a participant in the venture.
Liability for environmental damage is often extensive and the costs of restoring a site are potentially crippling. It is for these reasons that parties engaged in commercial transactions and the lending institutions which finance them have for some time kept close watch on environmental issues and are structuring their business practices in consequence.
The EQA which was first adopted in 1972 by the Québec government and has since been amended on several occasions is centred on a general prohibition to contaminate the environment above regulated levels.
The EQA forms the main body of legislation under which several regulations have been adopted in order to cover particular industries or wastes such as, for example, the pulp and paper mills, the steel industry, quarries, solid or hazardous wastes.
However, Québec environmental legislation is not considered as being a hindrance to the challenge of doing business in the Province. Many corporations have indeed met that challenge and have thrived by implementing proper measures to minimise their environmental risks.
The Québec Ministry of the Environment is the main environmental agency which is authorised by the EQA to issue permits and certificates of authorisations, attestations and orders. Regional offices through the province inform companies operating in their jurisdictions or those businesses wishing to start activities in these jurisdictions as to their environmental obligations. These offices process applications for certificates of authorisation or permits and will also proceed to regular site inspections. Notices of correction will be sent, when applicable, to companies who are not in compliance. If no measure is taken, a violation notice might follow and the penal proceeding is triggered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.