Bill 61 : Restart of the Quebec Economy and Mitigation of the Consequences of the Public Health Emergency

On June 3, 2020, the Quebec Government tabled Bill 61 – An Act to restart Quebec’s economy and to mitigate the consequences of the public health emergency declared on March 13, 2020 because of the COVID-19 pandemic (the “Bill”). The Bill is the first of its kind in Canada and is part of a trend of implementing legislation in order to accelerate major infrastructure projects.

This Bill primarily seeks to facilitate the development of economic recovery programs through various acceleration measures in terms of public contracts, environment, expropriation and land use planning. The Bill specifically targets 202 projects identified in an Appendix to the Bill, mainly consisting of public infrastructure projects in the areas of education, health, road networks, public transit and sustainable development. Other public or private projects may also be designated by decree to benefit from the acceleration measures provided by the Bill, particularly in the areas of public infrastructure, municipal projects and projects intended to increase medical or food self-sufficiency.

Furthermore, a number of proposed amendments to the Bill have already been tabled on June 4, 2020. Under these proposals, a commercial lease could not be terminated between the adoption of the Bill and August 1, 2020 due to a default with rent payments after March 13, 2020. Moreover, if the Bill is adopted with the amendments tabled on June 4, the law would extend the state of health emergency for an indefinite period.

Bill 61 and your business: Based on recent announcements, the Government intends to pass the Bill by June 12, 2020 at the latest.  Despite the short timeframe, comments and input may be provided on the Bill and on the implementing regulations. If you have any questions or require additional information in order to determine the potential impacts of the Bill on your business, please contact any of Nicolas Cloutier, Anca Neacsu, Dominique Amyot-Bilodeau, Annie Gagnon-Larocque or James Papadimitriou. We look forward to helping you consider providing input on the bill or the associated implementing regulations and understand the potential implications of the Bill on your activities and operations. Below is a summary of the Bill’s main provisions.

Various acceleration measures provided by the Bill

- Expropriation

The Bill allows the Québec government to rely on an accelerated expropriation procedure, similar to the one used for the Réseau Express Métropolitain light rail network, for infrastructure projects, including the extension of the “Blue Line” of the Montreal Metro. Under the accelerated procedure, the expropriated party cannot challenge the right to expropriate, the expropriating party has 90 days following the notice of expropriation to communicate the indemnity offered to the expropriated party and, in certain circumstances, the acquisition of the property by Transport Québec, by contract or expropriation, will not have to be preauthorized by the Québec government.

Also, under certain conditions, the provisional indemnity for the expropriation of a farm, a business or an industry will be determined by the Québec government, and not by the Québec Administrative Tribunal. The expropriated party and the tenant will no longer be authorized to request to remain in possession of the expropriated property and the indemnity for the expropriation will be fixed without taking into account any gain resulting from the public announcement of the project.

- Land Use Planning

The Bill provides that certain provisions of the Act respecting land use planning and development will not apply to infrastructure projects with respect to the use of existing buildings, groundwork and to the construction of buildings, equipment and infrastructures. For other projects, the Bill would allow the government to make accommodations to any rule relating to the review of the conformity or the coming into force of municipal by-laws, without putting aside referendum approvals.

- Occupation of the Domain of the State

The Bill provides that the relevant Ministry (MENR and MELCC, as appropriate) may temporarily allow the work to be carried out on lands of the domain of the State if it is unable to grant the necessary land rights within 30 days following the date the stimulus project is designated by the Government.

- Environment Quality

The Bill enables the Government to adopt regulations to make certain provisions of the Environmental Quality Act (EQA) inapplicable to stimulus projects designated by the Government. The regulation may also include replacement provisions applicable to these projects. However, these measures do not apply: (i) to work that may have permanent adverse effects on wetlands and bodies of water; (ii) to construction projects on a former residual materials elimination site; (iii) to subsequent operation stemming from the designated stimulus projects, which will remain subject to the EQA; or (iv) to projects located in the territory covered by the James Bay and Northern Quebec Agreement.

- Wildlife, wildlife habitat and fish habitat

The Bill provides certain measures to facilitate the issuance of required permits for designated stimulus projects in the event of changes to a plant habitat, wildlife habitat or fish habitat, including notably through the payment of financial compensation in addition to any other conditions that may be imposed on the proponent as part of these projects under applicable legislation.

- National Parks

In the event that the boundaries of a national park must be changed to allow the implementation of a designated stimulus project, the Bill allows the public hearing required for this purpose to be held by the Bureau d’audiences publiques sur l’environnement (BAPE) at the same time as the public hearings related to the project itself, rather than holding separate public hearings.

Other measures included in the Bill

- Commercial Leases

The Bill also proposes to prevent landlords from terminating commercial leases and from evicting tenants for defaulting on rent during the health emergency period and until August 1, 2020. It also proposes to restrict the landlord’s ability to seize the tenant’s property in the leased premises, as well as to exercise of other remedies and guarantees. These measures end on August 1, 2020, but may be extended by the Government, if required.

This is similar to the recent order of the government of British Columbia intended to protect small commercial tenants by encouraging landlords to participate in the Canada Emergency Commercial Rent Assistance (CECRA) for small businesses. However, the proposed Quebec measures, appears to be of general application and are not limited to tenants who are (or would be) eligible for the CECRA.

However, on June 8, 2020, in order to maximize the participation of commercial landlords to the CECRA program, the Quebec government announced it will fund 50% of the landlord’s 25% contribution under the federal program. Landlords will receive an amount equal to 12.5% of the total rent, and as result reducing their losses by half.

- Tax Deadlines

The Bill allows the Minister of Revenue to suspend the time limits applicable to the collection of tax claims and the issuance of assessments or determinations from March 13, 2020 until the 90th day following the end the public health emergency.

The Bill also allows the government of Québec to make necessary accommodations, which may remain in force until the 90th day following the end of the public health emergency, with regard to any deadline or due date, the payment of sums due to the State, including interest, and to any rule whose application is overly difficult or onerous as a result of the current health crisis.

- Measures pertaining to public contracts

The Bill allows the Government to determine, by regulation, modifications to the conditions applicable to public contracts and subcontracts referred to in the Act respecting contracting by public bodies, and this, irrespective if the project is one contemplated pursuant to the Bill or not. Furthermore, such regulation could provide that for projects that are contemplated pursuant to the Bill, the same modifications would apply to municipal bodies or to certain contracts of municipal bodies. Also, in respect of a contract of a municipal body, the government could determine different conditions or can derogate from certain public procurement rules applicable to such municipal body. Such measures could notably aim to modify the rules pertaining to adjudication and award of public contracts, including rules pertaining to the lowest bid, introduce prompt payment provisions and provide for compensation to the non-successful proponents.

Subject to certain exceptions, the measures taken by the government will cease to have effect (i) in two years after the date of assent of the act for projects that are not contemplated by the Bill, or (ii) in five years after the date of assent of the act for projects which are contemplated by the Bill.

- Immunity for acts performed pursuant to the act

Pursuant to section 51 of the Bill, no proceedings may be brought against the government, a minister, a public body or any other person for an act performed in good faith in the exercise of powers provided for in the act or in the implementation of measures taken under those powers.

- Draft regulations to come

The regulations to be made by the Government of Quebec in application of the Bill must be pre-published in the Gazette officielle du Québec. However, contrary to the usual practice which provides for a consultation period of 45 days, the Bill allows the Government to reduce this consultation period to a delay which cannot be less than 10 days, unless the measure has been studied by a committee of the Assemblée Nationale, in which case no pre-publication is required and the final version of the regulations may be published by the Government without pre-publication. The regulations adopted under Bill 61 may also come into force upon their publication, rather than within the usual period of 15 days following the date of publication of the final regulations in the Gazette officielle du Québec.

Commenting on the Regulations

In this context, companies and associations wanting to comment on the regulations to come in connection with the Bill have every interest in contacting the competent government authorities as soon as possible so as to inform them of their concerns and of the measures that would be beneficial to the economic restart in their sector of activity, while taking care to comply with the requirements of the Lobbying Transparency and Ethics Act.

Conclusion

If you have any questions or require additional information in order to determine the potential impacts of the Bill on your business, please contact any of Nicolas Cloutier, Anca Neacsu, Dominique Amyot-Bilodeau, Annie Gagnon-Larocque or James Papadimitriou.

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