On May 24, 2022, the National Assembly of Québec adopted Bill 96, called “An Act respecting French, the official and common language of Québec“. Bill 96 received assent on June 1, 2022. Bill 96 amends the Charter of the French Language (the “Charter“), also known as Québec’s French language law.
The purpose of the Charter, as set out in its preamble, is to make French the language of the government and law, as well as the normal and everyday language of work, education, communication, commerce and business. The Charter was adopted in 1977. Its stringent rules regarding use of the French language in Québec existed long before Bill 96 was tabled in May 2021.
The purpose of Bill 96 is to make French the “only common language of the Québec nation”. It overhauls the Charter and related legislation, seeking to reinforce the role of French in Québec society.
This newsletter provides a summary of some noteworthy consequences of Bill 96 and outlines changes to obligations for businesses operating in Québec.
Bill 96 introduces other amendments applicable to the civil administration, the justice system, professional orders and their members, residential real estate and the education system, which are not covered by this newsletter.
1. Language of the courts (in force on September 1, 2022)
Bill 96 reinforces French as the language of the courts in Québec. Most notably for businesses, pleadings filed by legal persons (i.e. corporations) in a language other than French will need to include a certified French translation prepared by a certified translator at the legal person’s expense. If a certified translation is not attached, the pleading cannot be filed at a court office or tribunal.
2. Language of work (in force on June 1, 2022)
Bill 96 strengthens provisions on French as the language of work in Québec. There are several new or increased obligations for employers regarding language in the workplace. The Charter already provides that employers, regardless of their number of employees in Québec, must use French when communicating in writing with their employees in the workplace. Bill 96 amends the Charter to add new obligations in that respect.
Employees’ rights to work in French
Employers must respect the employees’ right to carry on their activities in French. As a result, employers must use French in written communications, even following an employee’s termination of employment. However, at the express request of an employee, an employer may communicate in writing with this employee exclusively in a language other than French.
Any offer of employment, transfer or promotion must be published in French. Moreover, in all cases, the following documents must always be available in French: employment application forms, documents relating to conditions of employment, training documents produced for the staff, and group insurance policies.
Language of employment contracts
In the case of employment contracts in which the essential provisions are imposed by the employer and cannot be negotiated (referred to as a contract of adhesion), the parties may be bound only by a version that is in a language other than French if, after being provided with the French version, they expressly wish to do so. A French version must therefore always be made available to the employee.
Where an employment contract is negotiated, it may be in a language other than French if the parties so desire. However, it is sometimes difficult to determine whether an employment contract was negotiated, so it would be preferable to always have a French version made available to employees on terms that are at least as favourable as the version in a language other than French.
Where there is a discrepancy between an employment contract’s French version and a version in another language, the employee may invoke either version, according to their interests. Moreover, the provisions of a non-compliant contract that cause injury may be annulled upon application by the employee who suffers the injury. Alternatively, the employee can seek damages.
Job postings
Previously, employers could make an offer to fill a position (i.e. a job posting) in a language other than French if they simultaneously published it in a French daily newspaper. Bill 96 updates the Charter to reflect technological developments and increases employers’ obligations with respect to the publication of job postings. Job postings in a language other than French must be published simultaneously in French, and the employer must use “transmission means of the same nature and reaching a target public of a proportionally comparable size” for the French version. Employers must therefore publish the French version of the job posting in an equivalent medium and they must ensure that it reaches a comparable size of the population as for the version in any other language.
Requiring knowledge of another language
Employers may not require a person to have a certain level of knowledge of a language other than French as a condition of hiring, transfer or promotion. However, under certain stringent conditions set out in the Charter, an employer may do so if the employer can prove that the tasks performed require such knowledge. In order to do so, employers must assess the actual language needs associated with the duties to be performed and the language knowledge already required from other staff members, and employers must restrict as much as possible the number of positions involving duties whose performance requires knowledge or a specific level of knowledge of a language other than French. Employers who require knowledge or a specific level of knowledge of a language other than French to fill a position must state the reasons for the requirement in any job posting. Bill 96 introduces new recourses for persons who believe they are victim of a requirement to have a certain level of knowledge of another language.
Discrimination and harassment
Employees are granted the right to a work in an environment free of discrimination or harassment related to the use of French or to claiming a right arising from the Charter. Bill 96 introduces new recourses for persons who believe they are victim of such prohibited conduct.
3. Francization of businesses
Certificate of francization (in force on June 1, 2025)
The regulator, the Office québécois de la langue française (“OQLF“), oversees a certificate of francization program. Employers are required to register with the OQLF and declare their linguistic situation. The OQLF then assesses whether there is a sufficient general use of French in the business. If so, the OQLF will issue a certificate of francization. In not, the business is subject to a francization program. As of now, only businesses with 50 employees or more have to register with the OQLF. Under the modifications to the Charter, any business with 25 employees or more will need to do so.
Francization committee (in force on June 1, 2022)
Previously, only businesses with 100 employees or more were required to establish a francization committee. The OQLF may now order any business with fewer than 100 employees to establish a francization committee. Bill 96 also introduces additional modifications to francization committees. For example, such a committee must now meet at least every six months and send the minutes of the meeting to the management of the business and to the OQLF.
4. Language of business and commerce
The Charter reinforces the obligation on businesses to use French in their activities, including in marketing and advertising. Bill 96 amends the Charter to add the following new obligations.
Information and service in French (in force on June 1, 2022)
Businesses must serve consumers and non-consumer clients in French, which includes, without limitation, customer support and service in stores and through call centres. The modifications impact not only business to consumer relations, but also business to business relations.
Trademarks on goods and their packaging (in force on June 1, 2025)
As of now, a non-registered trademark (i.e. common law mark) can benefit from an exemption allowing it to be displayed in a language other than French. Under the new provisions in Bill 96, only registered trademarks that do not have a French registered version will benefit from this exemption. In addition, generic terms and a description of the product included in the trademark will also need to appear in French.
Trademarks on public signs and posters and in commercial advertising (in force on June 1, 2025)
As of now, a non-registered trademark (i.e. common law mark) can benefit from an exemption allowing it to be displayed in a language other than French. Under the new provisions in Bill 96, only registered trademarks that do not have a French registered version will benefit from this exemption. In addition, on public signs and posters visible from outside premises, French will need to be “markedly predominant” (i.e. French must be at least twice as large as the other languages) where such a trademark appears in a language other than French.
Goods, promotional material, and other information (in force on June 1, 2022)
The Charter already provides that all goods, packaging, documents supplied with goods, promotional material (including material on digital platforms such as websites and social media platforms) and purchase orders must display a French version at least as prominently as every other language. Bill 96 specifies that the foregoing cannot be available in a language other than French if the French version is not available on terms that are at least as favourable. In addition, the French version must be understandable without having to refer to a version in another language, which means that bad French translations are not good enough to meet the requirement.
5. Language of contracts between private parties
Contracts of adhesion (in force on June 1, 2023)
The Charter already provides that contracts pre-determined by one party must be drawn up in French. Under Bill 96, a choice of language provision will not be sufficient: the adhering party will only be able to waive the obligation to have the agreement in French, and be bound to a contract in a language other than French, after the French version has been provided to the adhering party, which means that a French version will always need to be available, free of charge. In addition, documents related to such a contract must be sent in French unless this obligation has been waived by the adhering party in the contract. Contracts used in relations outside Québec are however not subject to these obligations.
Where there is a discrepancy between the French version and a version in another language of such a contract, the adhering party may invoke either version, according to their interests. Moreover, the provisions of a non-compliant contract may be annulled on an application of the adhering party, without the need to prove that the contravention has caused some injury (the adhering party can rather elect to seek damages). These provisions are in force on June 1, 2022.
Other contracts (in force on June 1, 2023)
Contracts other than employment contracts and contracts of adhesion may be entered into in a language other than French if it is the express wish of the parties. It is forbidden to require from the other party any sum whatsoever for the drawing up of the French version of the contract or of the related documents.
Other documents (in force on June 1, 2022)
The Charter already provides that invoices, receipts and acquittances, and other documents of the same nature, must be drawn up in French. Bill 96 specifies that they may only be made available to the public in a language other than French if a French version is made available on terms that are at least as favourable.
Registration and enforcement of security interests and rights (in force on September 1, 2022). In Québec, where the law provides, some rights as well as security interests are enforceable against third-parties when published in public registers. Under the amendments made by Bill 96, such applications for registration will need to be made exclusively in French. Additionally, when the applications are accompanied with documents in a language other than French or English, the translation of those documents will need to be in French whereas previously translations in English were allowed.
6. Relations with the civil administration (in force on June 1, 2023)
Bill 96 adds several new provisions regarding use of French by the civil administration, which includes the Government of Québec, Québec government agencies, most municipalities, school bodies, and bodies in the health and social services network.
Language of contracts
Contracts entered into with the civil administration, and all related documents, will need to be drawn up exclusively in French. Written communications sent for the purpose of entering into such contracts and written documents sent by a legal person (i.e. a corporation) will also need to be exclusively in French. Some limited exceptions apply. For example, loan contracts may be drawn up in both French and another language. In addition, a contract may be drawn up only in a language other than French where the civil administration enters into a contract outside Québec. A non-compliant contract may be held to be absolutely null and void, regardless of whether it causes any injury.
Services provided to civil administration
All services provided to the civil administration will need to be rendered in French.
Interactions with the civil administration
The civil administration will exclusively use the French language in its written and oral communications, subject to some limited exceptions. Written communications with legal persons established in Québec will be exclusively in French starting on June 20, 2022, unless a regulation provides for otherwise (which is not currently the case).
7. Interpretation (in force on June 1, 2022)
Bill 96 adds a new provision stating 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, but its real impact remains to be seen. For instance, would a business having no establishment in Québec but selling goods and services in Québec be subject to the Charter? This question remains open considering that the OQLF now has the power to order, to a business having no establishment in Québec but making goods available to people situated in Québec through the Internet, to stop allowing people situated in Québec from acquiring such goods.
8. Enforcement and sanctions (in force on June 1, 2022)
Enforcement
Complaints and remedial measures. As it is currently the case, the OQLF will receive any complaints related to failure to comply with any of the provisions in the Charter and manage investigations into such complaints. Bill 96 expands the powers of a person making an inspection in that respect; these powers include: the ability to enter premises at any reasonable time, to take photos of such premises, to require access to electronic data held at the premises, and require any other information relating to the application of the Charter. If the OQLF becomes aware of a failure to comply with the Charter, it may order compliance within the time it specifies. In particular, such orders may be made against persons failing to comply with their obligations relating to the use of French in business and commerce. Before issuing an order to comply, the OQLF must provide at least 15 days’ notice stating its reasons and providing opportunity for the person to provide its observations. Once an order is notified to the defaulting party, it must send a notice to the OQLF outlining the measures taken to comply with the order.
Administrative sanctions
Prohibition from obtaining government contracts. Businesses that fail to meet the obligations of the Charter may not contract with or obtain subsidies from the civil administration.
Suspension of permits. Repeated contraventions of the Charter by a business may be a ground for the suspension of certificates and permits issued to the business. The loss of such certificates or permits may result in the loss of contracts with or subsidies from the civil administration.
Penal sanctions
Fines for contravention. Any person who interferes with an inspection or contravenes an order issued by the Minister of the French Language or the OQLF is liable to a fine of $700 to $7,000 in the case of an individual, $1,400 to $14,000 in the case of directors, or $3,000 to $30,000 in other cases.
Fines for reprisal. Anyone who takes a reprisal or threatens to do so against a person making a disclosure or cooperating with an investigation by the OQLF is liable to a fine of $2,000 to $20,000 in the case of an individual, $4,000 to $40,000 in the case of directors or, in any other case, to a fine of $10,000 to $250,000.
Subsequent offences. Bill 96 adds stringent rules on determining whether a repeated offence has been committed. The minimum and maximum fines prescribed by the Charter are doubled for a second offence, and tripled for a subsequent offence. Moreover, under the modifications made by Bill 96, if an offence under this Charter continues for more than one day, it constitutes a separate offence for each day it continues. In addition to the maximum fine imposed by the Charter, a judge now has the discretion to impose an additional fine not exceeding the financial benefit gained from the offence.
Director liability. Directors of a legal person are now presumed to have committed the offence if the legal person commits an offence. This presumption can be rebutted by proving due diligence has been exercised, but it is nonetheless a heavy burden for directors.
Conclusion
This newsletter is to be used as an informational tool and does not constitute a legal opinion. Miller Thomson LLP is ready and able to help you identify and navigate the obligations that Bill 96 imposes on you and your business.
Disclaimer
This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.
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