Transport & Logistics Latest Legal Trends And Insights Series: Part 2 - Privacy Protection

On November 14, 2023, Miller Thomson's National Transportation & Logistics Group hosted an in-person educational seminar in Toronto, discussing the latest legal trends and insights surrounding the transportation and logistics industry. The event was hosted by Miller Thomson's Transportation & Logistics Co-Chairs, Louis Amato-Gauci and Jaclyne Reive.

This article is Part 2 of a two-part series on the topics discussed, including: (i) doing business in Quebec – lien rights under the Civil Code and new French language laws; and (ii) the use of biometrics and inward-facing dash cameras and related privacy considerations. Part 1 discusses the other topics covered during the seminar: (i) environmental, social and governance (ESG) and the transportation and logistics ("T&L") industry including the new modern slavery laws and greenwashing; (ii) mergers & acquisitions in the T&L world; (iii) commodity tax issues for carriers and freight intermediaries; and (iv) labour & employment matters.

1. Doing business in Quebec: Lien rights under the civil code and new French language laws

Lien rights under the Quebec Civil Code

Lien rights are addressed differently under the Quebec Civil Code than they are under the common law that applies in other Canadian jurisdictions.
The lien available to warehouseman under Quebec law does not allow for goods to be sold if services are not paid for, but rather provides for a right of retention (meaning the warehouseman's only option is to hold the goods until it gets paid). However, this right of retention has priority over other creditors.
A warehouseman can enforce its security if it creates a 'hypothec," a form of registered security interest in Quebec. Some of the enforcement options allow for the products to be sold in a similar but not identical way as would be the case in other Canadian jurisdictions. However, the creation of a hypothec can be a burdensome process because it involves the publication of rights and requires the customer to consent to its creation. In addition, a customer may have other hypothecs that would rank first in priority.
Warehousemen and carriers should ensure that they have written agreements in place with their customers and their subcontractors that deal with lien and retention rights, potentially including a waiver from subcontractors of their rights of retention.
The contract should include terms that will expressly establish that any unpaid debt is related to the assets in the warehouseman's or carrier's possession.
Warehousemen and carriers should also ensure that they have respected all of their contractual duties to avoid a challenge of their rights of retention.

Amended French Language Laws

The Québec Charter of the French Language (the "Charter") was passed in 1977 and aims to increase the predominance of the French language in Québec.
The Charter was recently overhauled by Bill 96, making it more stringent than it was previously, including with respect to the use of French in the workplace.
Businesses must serve consumer and non-consumer clients in French. This applies to business to business and business to consumer relations.
Starting on June 1, 2025, only registered trademarks will benefit from an exception to the requirement that there must be a French version of a trademark.
Goods, packaging, documents supplied with goods, promotional material, websites, social media accounts and purchase orders must all be available in French on terms that are at least as favourable and as predominant as every other language.
Public signs, posters and commercial advertising (including on vehicles) may be both in French and in another language provided that French is markedly predominant (i.e. French must be at least twice as large as the other languages). Exception: public signs and posters displayed on or in a vehicle regularly used to transport passengers or merchandise, both in Québec and outside Québec, may be both in French and in another language provided that French appears at least as prominently.
Contracts of adhesion (i.e. contracts pre-determined by one party such as standard form agreements) and related documents must be provided in French at the same time as any other language, failing which a contract may be declared null and void. Exception: Contracts used in relations outside Québec.
Bill 96 provides that nothing in the Charter may be interpreted in such a way as to prevent its application to any business or employer carrying on its activities in Québec. The stated objective is to make businesses under federal jurisdiction subject to the Charter, e.g. the transport sector.

2. Use of biometrics in the transportation industry and privacy considerations

The use of biometrics in the transportation industry has led to an increase in the speed and accuracy of identification verification while improving security and lowering the risk of fraud, and its use in this sector is expected to continue and grow over the course of this decade.
Using a biometrics-enabled driver-facing dash camera by way of example, these technologies could be installed and used on a limited basis, but a company should strongly consider the purposes for which it wishes to use the device, and whether there are less invasive ways to gather the information that it needs.
CONSENT: Under Canadian federal privacy laws, an individual's express (as opposed to merely implied) consent is required for any collection, use or disclosure of biometric information.
PURPOSE: For consent to be valid, individuals must understand the purposes for which such information is collected.
SECURITY: Once biometric data is collected, it must be secured using safeguards that are appropriate given the sensitive nature of this information.
RETENTION: Organizations may only retain biometric data for as long as is necessary to achieve the purpose for which it was collected.

Quebec Privacy Considerations

Quebec recently overhauled its privacy legislation, making it more stringent than the requirements elsewhere in Canada.
There are currently no decisions from the regulator in Quebec on biometrics used in dash cameras but there are some on video surveillance, which indicate that video surveillance is possible in limited situations.
Factors that must be considered in connection with the use of an in-ward facing dash camera: (1) The device must be necessary, i.e. the objective must be legitimate, important, urgent and real; and (2) the infringement of the fundamental right to privacy (by the collection of images of individuals) must be proportional to the objective pursued.
Regarding more specifically biometrics: In the vast majority of decisions from the Quebec regulator, the collection of biometric information was not deemed necessary under the law and thus prohibited. For instance, most of the time, the use of biometric time clocks does not comply with the applicable legislation.
It is mandatory to disclose to the regulator, using their form provided: (1) any process for capturing biometric characteristics or measurements for identification or authentication purposes, prior to use; and (2) the creation of a database of biometric characteristics and measurements, at least 60 days before it is brought into service.

Employment Law Considerations

When implementing a policy related to the use of biometric-enabled devices that potentially infringe on employee privacy, employers should consider the following questions:

Is there legitimate purpose for the policy?
Was the implementation of the policy reasonable?
Are there less intrusive alternatives that can be used instead?

Concluding Thoughts

This article is Part 2 of a series of summaries of the November 14, 2023 Transportation & Logistics Educational Seminar hosted by Miller Thomson; please click here for Part 1..

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.