North America

Overview

Labour, Employment & Human Rights Bulletin

AUGUST 27, 2018

Enterprises doing business in Quebec collect various information about potential candidates and employees before and during their employment and when their employment relationship terminates.

The information collected during the hiring process may include a candidate’s curriculum vitae and the results of evaluations and response to questionnaires, for example. During the period of employment, even more data are collected: payroll records, time sheets and vacations, tax documents, information about training taken, and so on. When the employment terminates, additional documents may be collected, including resignation or dismissal letters, records of employment, and any evidence that supports dismissal as an administrative or disciplinary action.

Retention of the personal information collected carries with it various obligations, particularly in terms of access to the information[1] and confidentiality.[2]

The adoption of these measures involves not insignificant costs to enterprises, particularly when it comes to hosting or storage of the data. Enterprises doing business in Quebec must therefore provide for the retention and confidentiality of the data collected for a period that is sufficient for meeting their legal obligations. However, they have an equal interest in reducing the associated costs by limiting the retention period to what is necessary for protecting their interests.

We have prepared a table summarizing the mandatory and recommended retention periods in relation to the information collected before, during and on termination of employment, which can be seen at the end of this document.

For the various retention periods, it would be wise to adopt a two-level or three-level approach. Factors to be considered include the size of the enterprise, the volume of documents to be retained, and the volume of requests for access to the information or rectification.

A two-level approach consists of retention based on two time limits:

six years from the end of the fiscal period or the last taxation year in respect of which the documents in issue were held (or the equivalent of seven years) [3] for all documents, whether financial or not, for a period that complies, at a minimum, with the most stringent legal requirements; permanently, for documents whose importance justifies such retention.

A three-level approach consists of retention based on three time limits:

six years from the end of the fiscal period or the last taxation year in respect of which the documents in question were held (or the equivalent of seven years)[4] for financial documents (for example, tax documents and documents relating to employment insurance or the Québec Pension Plan, etc.) or for insurance or pay equity documents, for a period that complies, at a minimum, with the most stringent legal requirements;

three years from the termination of employment (or the termination of pension benefits), for all other documents; permanently, for documents whose importance justifies such retention.

In all cases, a time limit must be extended where there is pending litigation for which the documents are or could be necessary. In that regard, we would note that the Act respecting the protection of personal information in the private sector specifically requires that an enterprise that refuses a request for access or rectification retain the personal information in question for a long enough period of time to allow the person concerned to exercise their right of access to the information or rectification of their personal information and any right of recourse under that Act.[5]

In addition, we would note that where no time limit for retention is expressly provided in a statute or regulation, it is recommended that any document relating to the employment be retained for a period of at least three years, in accordance with the prescriptive period provided by the Civil Code of Québec, which applies to a majority of personal actions.[6]

We would also note that under the Civil Code of Québec[7] and the Act respecting labour standards,[8] an employer has an obligation to provide the employee, at the expiry of the contract of employment, with a work certificate stating only the nature and duration of their employment. Article 2096

C.C.Q. [TRANSLATION] “essentially reiterates the rules regarding the issuance of a work certificate laid down by s. 84 of the Act respecting labour standards. It seemed desirable to incorporate that obligation into the general law, to eliminate the exceptions provided in s. 3 of that Act, which provides that the Act respecting labour standards does not apply to certain employees, such as farm employees, babysitters, etc”. [9] Regarding the retention period for the information that a work certificate must contain, a literal interpretation approach suggests that that information must be available only “upon termination of the contract”[10] or “at the expiry of the contract of employment”.[11] Accordingly, there does not seem to be any legal obligation to retain information any longer after the termination of the employment, solely in order to provide a work certificate.

In any event, it is worth recommending that any enterprise develop a timetable for retaining documents or a policy establishing practices for managing employees’ personal information, setting out the minimum and maximum times for retaining the documents.

Nature of the documents Mandatory period Recommended period
Candidates’ applications, whether or not hired (curriculum vitae, criminal record check, medical or skills assessments, etc.) No mandatory period Minimum of 3 years from the end of the hiring process[12]
Payroll records, time sheets and vacations 3 years[13] Minimum of 3 years from the termination of the employment relationship[14]
Tax documents and documents regarding training completed by the employees (programs, contracts, registrations, invoices) 6 years after the end of the last fiscal period to which the documents relate[15] 7 years
Documents relating to employment insurance, including records of employment 6 years from the end of the year for which the documents in issue were kept, unless written permission is given by the Minister to dispose of them before the end of that period[16]
orUntil a decision is made (including expiry of the appeal period) in the case of litigation[17]
7 years
Information used for completing a pay equity plan 5 years from the posting of the results of a pay equity audit or any information used to conduct the pay equity audit[18] 6 years
Other employment documents (employment contracts, dismissal letters, proof of disciplinary sanctions, etc.) No mandatory period Minimum of 3 years from the end of the last of these three events:
Termination of the employment relationship;[19]
Payment of benefits, including pension benefits, where applicable;
More than 3 years, where litigation is pending.
Documents relating to an employee’s pension (enterprise pension plan, Québec Pension Plan, etc.) No mandatory period Minimum of 3 years from eligibility for the pension plan or from the death of the retired employee[20]


[1] Section 27, para. 1, of the Act respecting the Protection of Personal Information in the Private Sector, CQLR c. P-39.1, provides: “Every person carrying on an enterprise who holds a file on another person must, at the request of the person concerned, confirm the existence of the file and communicate to the person any personal information concerning him”.

[2] See, in particular, section 10 of the Act respecting the Protection of Personal Information in the Private Sector, CQLR c. P-39.1, which provides: “A person carrying on an enterprise must take the security measures necessary to ensure the protection of the personal information collected, used, communicated, kept or destroyed and that are reasonable given the sensitivity of the information, the purposes for which it is to be used, the quantity and distribution of the information and the medium on which it is stored”.

[3] Tax Administration Act, CQLR c. A-6.002, s. 35.1 and Income Tax Act, RSC 1985, c. 1 (5th Supp.), s. 230(4).

[4] Ibid.

[5] Act respecting the protection of personal information in the private sector, CQLR c. P-39.1, s. 36.

[6] Civil Code of Québec, CQLR c. CCQ-1991, art. 2925. (“C.C.Q.”).

[7] Section. 2096 C.C.Q.

[8] Act respecting labour standards, CQLR c. N-1, s. 84.

[9] Ministère de la Justice, Commentaires du ministre de la Justice – Le Code civil du Québec, vol. 2, Québec City, Les Publications du Québec, 1993, art. 2096.

[10] Art. 2096 C.C.Q. C.C.Q.

[11] Act respecting labour standards, supra note 8, s. 84.

[12] Art. 2925 C.C.Q.

[13] Regulation respecting a registration system or the keeping of a register, CQLR c. N-1.1, r. 6, s. 2.

[14] Art. 2925 C.C.Q.

[15] Tax Administration Act, supra note 3, s. 35.1 and Income Tax Act, supra note 3, s. 230(4); Regulation respecting eligible training expenditures, c. D-8.3, r. 3, s. 4.

[16] Employment Insurance Act, SC 1996, c. 23, s. 87(3) and (4).

[17] Ibid.

[18] Pay Equity Act, CQLR c. E-12.001, ss. 14.1 and 76.8.

[19] Art. 2925 C.C.Q.

[20] Ibid.

Authors

Antoine Aylwin
Partner
Montréal, QC
Claudie Fréchette
Summer Student
Montréal, QC
Eliane Ellbogen
Summer Student
Montréal, QC
Related Articles by Firm
OSFI issues advisory on technology and cyber security incident reporting
The Advisory reflects the fact that OSFI is very focused on this increasingly significant area of risk.
Health Canada pushes for safer medical devices
The announcements foreshadow significant near-term changes to Canada's medical device regulatory regime.
USMCA impact on communications industries
How the US-Mexico-Canada Agreement affects telecommunications, broadcasting and digital trade.
Surprise changes seek to modernise Canadian trademarks law and practice
This bulletin looks at key proposed changes to trademark law in Canada.
Further hurdles for regulatory approval of notifiable mergers in South Africa
On July 12, the Competition Amendment Bill was introduced in Parliament, substantially revising the earlier version of the Bill.
Hitting the sweet spot: Regulation of sweetened alcoholic beverages
Health Canada issued a notice of intent to restrict the amount of alcohol in highly sweetened alcoholic beverages.
Significant changes proposed to Canada’s AML/ATF regime
The Proposed Regulations are wide ranging and include a number of substantive changes as well as technical amendments.
Canada: Privacy commissioner issues key guidelines for consent and inappropriate data practices
Important guidance documents issued in respect of activities regulated pursuant to the Personal Information Protection and Electronic Documents Act ...
Cybersecurity risks for directors and officers
The cybersecurity field is ripe for affected stakeholders to test claims that directors and officers have failed to discharge their duties.
Cybersecurity Risks for Directors and Officers
Directors and officers in Canada face increased risk of personal liability and threats to job security in relation to cybersecurity...
Proposed changes to Canada's anti-money laundering and anti-terrorist financing regime
A consultation paper released in February could potentially have broad implications for Canada's AML/ATF regime.
Bill 148 Update: Scheduling and the three-hour rule
The Fair Workplaces, Better Jobs Act, 2017 makes significant changes to the Employment Standards Act, 2000.
Does your non-competition clause really protect you?
Or does it merely offer the illusion of protection? What you need to know about the validity and enforceability of a non-competition clause.
Canada: Selected Tax Measures in the Federal Budget 2018
Canada's 2018 Federal Budget contains significant proposals to amend the Income Tax Act and the Excise Tax Act while also providing updates on previously announced tax measures and policies ...
Expect the Intersection of Privacy and AI in 2018
We must consider how to regulate, or at least control, the use of artificial intelligence at different levels ...
Energy Licences and Approvals in Canada
Update on Directive 067: Eligibility Requirements for Acquiring and Holding Energy Licences and Approvals ...
Canada to Revise Tax Voluntary Disclosures Program
Effective March 1, 2018: New Regime will Result in Limited Relief for Certain Taxpayers Disclosing Errors and Omissions ...
Canada: New CASL Ruling
CRTC Provides Guidance on B2B Messaging and the Due Diligence Defence ...
Corporate Parent Liability: Litigation Risks for Resource Companies
Traditionally, parent companies have been considered legally distinct entities and thus immune from the actions of their subsidiaries, a concept described as the “corporate veil”. This position is now being challenged ...
Canada: No Duty to Consult Triggered by Omnibus Changes to Environmental Laws
In Canada (Governor General In Council) v. Courtoreille, 2016 FCA 311, the Federal Court of Appeal found that the federal government did not owe a duty to consult when it developed and implemented changes to environmental legislation through two omnibus bills ...
Projects & Energy Special Report: Off-grid energy solutions in Africa
Africa’s development has been significantly affected by the energy deficit, with an estimated 70 percent of people in sub-Saharan Africa without reliable access to electricity ...
The Global Reach of Canadian Privacy Law
Federal Court Issues Landmark Ruling in Globe24h ...
Temporary Foreign Workers in Canada: Employer Compliance Rules
The regulations that govern applications for work permits provide a very strict framework for employers who hire temporary foreign workers in Canada ...
Canada is Open for Business
Trump and the Changing Political Landscape in the US ...
Primer on Procurement Rules in the New Canadian FTA
Fasken Martineau Releases Primer on Procurement Rules in the New Canadian Free Trade Agreement ...
Canada: Donald Trump, Paris and the Climate Policy Two­-Step
Will the U.S. withdrawal from the Paris Agreement fundamentally alter Canada's course?
China’s Priorities for a Free Trade Agreement with Canada
Analysis of Chinese language commentary, news media and academic studies, reveal some of China's top priorities for a free trade agreement with Canada ...
Canada: New Authorities under Vanessa's Law
On June 18, 2016, the Federal Department of Health published a Notice of Intent to amend the Food and Drug Regulations and the Medical Devices Regulations to implement key authorities under Vanessa's Law...
Canada: Consultation on New Health Regs for Self-Care Products
Health Canada is seeking consultation on new standards for self-care products, over-the-counter drugs, natural health products and cosmetics ...
Private right of action under Canada’s Anti-Spam Law
As of July 1, 2017, individuals and organizations will be entitled to institute a "private right of action" before the courts against those that contravene certain provisions of Canada's Anti-Spam Law ...
New Federal Consumer Protection Regime for Bank Customers
Canada: The government has introduced a bill which proposes to create a comprehensive federal consumer code and strengthen federal jurisdiction over provincial jurisdiction with respect to products and services of banks.
Canada: Alberta's Renewable Electricity Program
Alberta released details of the Renewable Electricity Program to accelerate the development of renewable power generation through a competitive bid process.
Certainly Uncertain: Construction Trusts after Iona in Canada
A recent decision clarifies the law regarding provincial statutory trusts in the insolvency context, particularly in the construction sector.
The Fight against Climate Change and the Overhaul of Canada's Environment Quality Act
A bill allows government to require a "climate test" from a project proponent.
Health Canada Is Cracking The Whip On Advertising Violations
On January 21, 2016, various hospitals, natural health product manufacturers, physicians and pharmaceutical companies found themselves specifically named by Health Canada in a published list of health product advertising complaints ...
Canada: New Strategic Plan for the Patented Medicines Prices Review Board
The Strategic Plan comprises a fresh vision, a revised mission statement and four new strategic objectives ...
Transport Canada Promises New Drone Regulations
Increase in popularity has had a direct effect on risks involved for the safe use of regular aircraft ...
N. America: Northern Gateway Pipeline
Province must consult and decide but may impose conditions
Canada: Tinkering with Title - Don’t Get Caught by Surprise
The Mining Amendment Act 2015 proposes a new electronic mining lands administration system in Ontario.
New Lobbyists’ Code Will Restrict Dealings with Canada’s Federal Government and Agencies
Canada's new Lobbyists' Code of Conduct will significantly restrict the activities of lobbyists and others seeking to influence federal decision making.
Righting a Wrong: Canadian Regulators Improve the Rights Offering Regime
Canadian regulatory authorities recently overhauled how prospectus exempt rights offerings are to be conducted going forward.
A change of role for a legal representative under the new Clinical Trials Regulation 536/2014?
The roles and responsibilities of the legal representative set out under Clinical Trials Directive 2001/20/EC are likely to change under the new Clinical Trials Regulation 536/2014.
Historic Court of Appeal Decision in Dunkin' Brands: Three Lessons for Franchisors in Canada
The Quebec Court of Appeal has specified the intensity of the franchisor's implied obligations in what is the most significant franchise case in Québec since 1998.
New Compliance Form and Fee for Employers of Foreign Work Permit Applicants in Canada
Employers whose foreign employees must apply for a work permit or extension should be aware of a new Compliance Form and Compliance Fee that they must submit before the person applies for the work permit in Canada.
Use of Trademarks As Metadata & #Hashtags in Canada
A recent decision of the Federal Court of Canada provides guidance on the proper use of IP in this digital world that brand owners need to know now.
Claims that Involve a Fixed Dosage and Schedule Can Constitute Patentable Subject Matter
The Canadian Intellectual Property Office has issued a revised guidance which provides clear instructions on how to approach medical use claims and determine whether such claims are eligible for patent protection.
The Application of the Bhasin Principle of Good Faith in Canada: An Early Example
A recent decision from the Supreme Court of British Columbia provides an early example of how courts will apply the general principle of good faith in Canada.
The TPP Agreement: A Canadian Business Perspective
The TPP will impact goods access and other aspects of Canadian businesses.
Budget 2015 - Canada
The Budget 2015 contains several significant proposals to amend the Income Tax Act while also providing updates on previously announced tax measures and polices. Here are some highlights.
Foreign Corruption and the Integrity Framework in Canada: A Difficult Corporate Board Dilemna
Canada's Integrity Framework raises difficult choices for corporate board directors and management regarding voluntary disclosure of prior foreign corrupt activity of an acquired company.
Canada-EU Comprehensive Economic and Trade Agreement Negotiation Completed: Additional Protection for Innovative Pharmaceutical Products
If ratified, key intellectual property provisions in the Canada-EU trade pact will provide additional protection for innovative pharmaceutical products.
An Update on the Proposed EU Revisions to the Regulation of Medical Devices
The proposed European regulatory regime will merge the directives on Medical Devices and Active Implantable Medical Devices into a single regulation and wholly replace the current regulation on In Vitro Diagnostic Medical Devices.
UK FCA consults on requirements for reports on payments to government
While Canada does not currently have a reporting regime for payments to governments, a process is underway to ensure that a regime is implemented in the near future.
Trademark Use: an Important Shift in Canada
Bill C-31, which was given royal assent on June 19, 2014, will eliminate the requirement that a trademark be used in order to be registered in Canada.
Intellectual Property Protection - Industrial Designs
Many companies will consider the availability of and merits of seeking patent and/or trade-mark registration. However, one form of IP protection that is often overlooked is an industrial design registration.
Protocol to Amend the Canada-UK Tax Treaty
The Canada-United Kingdom Tax Convention was amended with the signing of a protocol on July 21, 2014. This article will describe some highlights of the Protocol and comment on the impact of these provisions on cross-border tax issues between Canada and the ...
The end of the Canadian "iPod Tax" saga
The "Certain Televisions Remission Order" confirms that, in fact, there is not now, and never actually was, "tax" on "iPod" imports to Canada.
Updating Canadian Trademark Filing & Registration Strategies
Here are some key trademark filing strategies for avoiding or minimizing the potential impact of recent amendments to the Canadian trademark landscape.
The Canadian insurance M&A environment
There have been a significant number of insurance company M&A transactions in the Canadian market in recent years, a trend expected to continue. Fasken Martineau DuMoulin have surveyed the acquisition agreements from these transactions and analysed ...
Merger control and foreign investment review in Canada
Fasken Martineau DuMoulin’s Huy Do and Jack Yu1 write that acquisitions of, or investments in, Canadian businesses can give rise to merger control and foreign investment reviews. ...
Related Articles
New Tawazun economic programme policy guidelines issued
It is hoped that the new programme will enable defence contractors to identify more accessible opportunities to generate offset credits.
Zimbabwe’s ratification of the WTO Trade Facilitation Agreement
Recently, Zimbabwe, a member of the WTO since 1995, ratified the WTO Trade Facilitation Agreement (TFA) becoming the 139th WTO Member State to ratify this Agreement ...
Related Articles by Jurisdiction
Canada: Consultation on New Health Regs for Self-Care Products
Health Canada is seeking consultation on new standards for self-care products, over-the-counter drugs, natural health products and cosmetics ...
Canada is Open for Business
Trump and the Changing Political Landscape in the US ...
Foreign Corruption and the Integrity Framework in Canada: A Difficult Corporate Board Dilemna
Canada's Integrity Framework raises difficult choices for corporate board directors and management regarding voluntary disclosure of prior foreign corrupt activity of an acquired company.
Latest Articles
In-house lawyer among Sri Lanka bombing victims
Anglo-American counsel Anita Nicholson and her two children were among more than 300 victims.
New Tawazun economic programme policy guidelines issued
It is hoped that the new programme will enable defence contractors to identify more accessible opportunities to generate offset credits.
Chinese M&A goes under the radar
There is a greater focus on smaller, more strategic deals that attract less scrutiny from government officials ...