May 26, 2022Calculating...

Bill 96 aims to fortify French throughout Québec society

The National Assembly of Québec has adopted Bill 96, An Act respecting French, the official and common language of Québec. This Bill was initially introduced in May 2021 (see our previous bulletin) and has undergone revisions as part of the clause-by-clause committee review process.

Intended to enshrine the paramountcy of the French language in Québec, the Bill concluded its legislative process a year after it was submitted by Mr. Simon Jolin-Barrette, Minister of Justice, Attorney-General of Québec and Minister Responsible for the French Language. It introduces new requirements in all areas of Québec society, from education and public administration to business activities, the workplace, and the judiciary. For businesses specifically, it ups the ante by introducing new requirements—notably in packaging, signage and commercial advertising (see our recent bulletin), contracts, customer service, the workplace, communications with the civil administration (including the government and its ministries, as well as government, municipal and school bodies and bodies in the health and social services network) and the judiciary.

While most of the new requirements will come into force as soon as the Bill receives Royal Assent, in certain cases there will be a three-month, one-year or three-year transition period to ensure their orderly implementation.

What you need to know

  • As of the date of assent:
    • Commerce and business: Information displayed on a product, on its container or wrapping, or on a document supplied with it in a language other than French cannot be available “on more favourable terms” than the information displayed in French. Catalogues, brochures, order forms and other documents of the same nature that are available to the public, regardless of the medium used, as well as invoices, receipts and acquittances, must be drawn up in French. They cannot be made available in another language if the French version is not available on “terms that are at least as favourable”. A business that offers goods or services to the public must inform and serve it in French.
    • Labour relations: The Bill imposes a high bar on employers who wish to justify why they require knowledge of a language other than French.In particular, they need to indicate the reasons justifying this requirement in the job offer. Under the Bill, the requirement to communicate with employees in French applies specifically to employment contracts, offers of employment, transfer or promotion, written communications to staff, documents relating to conditions of employment and training documents. As for documents relating to conditions of employment and training documents which, before the date of assent, were not available in French, employers have a one-year grace period to make them available in French.
  • As of three months after assent:
    • Judicial: Any pleading drawn up in English that emanates from a legal person must be translated to French by a certified translator.
  • As of one year after assent:
    • Business: Contracts of adhesion must be drawn up in French. A party cannot explicitly choose to adhere to a contract of adhesion drawn up in a language other than French unless it has first examined the French version (this requirement does not apply to certain types of contracts, such as contracts “used in relations outside Québec”).
    • Civil administration: All contracts entered into with the civil administration (the government and government departments, government, municipal and school bodies, and bodies in health and social services) must be drawn up in French only. Certain contracts may be drawn up both in French and in another language (such as loan contracts and certain financial contracts) and some others only in another language (for instance contracts outside Québec). All communication between a business and the civil administration relating to a permit, a subsidy or other authorization or financial assistance must be done exclusively in French, subject to some exceptions.
  • As of three years after assent:
    • Packaging, signage and advertising: Only registered trademarks will be allowed to appear exclusively in a language other than French as long as no corresponding French version has been registered. If a non-French registered trademark used on product packaging includes a generic phrase or a description of the product, the generic/descriptive phrase will have to appear in French. (See our previous bulletin to learn more.)
    • Labour relations: Companies employing 25 to 49 employees will now be subject to francization requirements.
    • Business: French will need to be “markedly predominant” on signs visible from outside premises if the sign bears a company name that includes an expression taken from a language other than French.
  • Penalties: Bill 96 introduces new administrative, penal and civil sanctions. It adds protection measures for the usage of French in the workplace and confers increased inspection powers to the Office québécois de la langue française (the Office).

Applicability

Bill 96 introduces significant changes to the requirements under the Charter of the French Language related to the use of French in commerce, business, education, the workplace, the judiciary and the public administration. It also modifies the Charter of Human Rights and Freedoms, which will now provide Quebecers with a new fundamental right to live in French to the extent provided for in the Charter of the French language.

The Bill invokes the notwithstanding clause to exempt the Charter of the French Language from the requirements of sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms and sections 1 to 38 of the Québec Charter of human rights and freedoms, which include protection from unreasonable search.

Overview of the measures put in place by Bill 96

Commerce

Companies will be subject to increased requirements related to the use of French as soon as the Bill receives Royal Assent.

Communications

Clients of goods or services, whether they are consumers or not, will have enhanced rights to be informed and served in French. Catalogues, brochures, order forms and similar documents that are available to the public, regardless of the medium used, as well as invoices, receipts and acquittances, will need to be drawn up in French. Companies are not allowed to make them available in another language if the French version is not available on “terms that are at least as favourable”.

Signage and packaging

Regarding information that can be displayed on a product, on its container or wrapping, or on a document supplied with it in a language other than French, not only businesses will be prohibited from giving it greater prominence than that in French, but they will also be prohibited from making it available “on more favourable terms” than the information displayed in French.

Three years after the Bill receives Royal Assent, French will need to be “markedly predominant” on signs visible from outside premises if the sign bears a company name that includes an expression taken from a language other than French. Furthermore, as mentioned in our recent bulletin about the impact of Bill 96 on packaging, signage and commercial advertising, the “recognized trademark” exception will be replaced by a “registered trademark” exception. Only registered trademarks will be allowed to appear exclusively in a language other than French as long as no corresponding French version has been registered. Even then, if a generic phrase or a description of the product is included in the non-French registered mark, the generic/descriptive language must appear in French on the product or on a medium that is permanently attached to the product.

Business

As of one year after the amended Bill’s date of assent, contracts of adhesion will need to be drawn up in French. With certain exceptions, a party will not be able to explicitly choose to adhere to a contract of adhesion drawn up in a language other than French unless it has first examined the French version and still chooses the non-French version. The adhering party must not bear the costs incurred by translating the contract of adhesion.

This measure will change the current practice of adding a bilingual clause stating that the parties agreed to have the contract drawn up exclusively in English to the English version of a contract of adhesion.

Labour relations

As soon as the Bill receives Royal Assent, workers’ rights to carry on their activities in French will be enhanced.

Requiring knowledge of another language

It will be prohibited to make knowledge of a language other than French a condition for obtaining or keeping a position unless this knowledge is required to perform a duty. An employer may be accused of a prohibited practice if they have not taken all reasonable steps to avoid requiring knowledge of a language other than French, namely: assessing the actual language needs associated with the duties to be performed; making sure that the knowledge of other staff members was insufficient to perform the duty; or restricting the number of positions requiring the knowledge of a language other than French. (This duty to take reasonable steps should not require an “unreasonable reorganization” of the employer’s business.) Furthermore, the reasons justifying the requirement to know a language other than French will need to be indicated in the job offer.

Communications

The requirement to communicate with employees in French will apply specifically to employment contracts, offers of employment, transfer or promotion, documents relating to conditions of employment, training documents and written communications to staff. An employer cannot communicate with a worker exclusively in a language other than French unless the latter has so requested.

Regarding documents relating to conditions of employment and training documents which, before the date of assent, were not available in French, employers have a one-year grace period to make them available in French.

Three years after the Bill receives Royal Assent, businesses employing 25 persons or more will be subject to new francization requirements. The requirement to register with the Office within six months and to provide it with a report on the business’s linguistic situation, previously imposed to businesses employing 50 persons or more, will be extended to those employing 25 to 49 employees.

Judicial

As of three months after the date of assent, a certified French translation will need to be attached to any pleading drawn up in English that emanates from a legal person. In the absence of a certified French translation, court offices will have to refuse the filing of the document. This additional requirement may result in the rendering of judgments by default against legal persons that have not translated their pleadings in time.

Civil administration

As of one year after the date of assent, all contracts entered into with the civil administration (the government and government departments, government, municipal and school bodies, and bodies in health and social services) will need to be drawn up exclusively in French. It will, however, be possible to draw up certain contracts both in French and in another language (such as loan contracts and certain financial contracts), to attach a version in another language (such as intergovernmental agreements, international agreements and contracts entered into with a natural person not residing in Québec) and to draw up some others only in another language (for instance contracts outside Québec). In the latter case, a French version will need to be made available to the civil administration’s staff. All communication between a business and the civil administration relating to a permit, a subsidy or other authorization or financial assistance must be done exclusively in French, subject to some exceptions.

Businesses that provide services to the civil administration will need to provide them in French.

Sanctions

New administrative, penal and civil sanctions and new protection measures for the usage of French in the workplace will be implemented. The Office will have increased powers, particularly with regards to inspection.

Civil, administrative and penal sanctions

The provisions of a contract contravening the Charter of the French Language as amended by Bill 96 may be annulled, or their obligations reduced, if they cause a prejudice. In the case of contracts of adhesion, the existence of a prejudice is presumed. When a contract of adhesion refers to an external clause drawn up in English and when the adhering party was not provided with a French version of the contract and has not consequently agreed to adhere to the contract in another language, the external clause will be deemed null and incomprehensible.

A business that does not respect the provisions of the Charter of the French Language may lose certain governmental authorizations or not be able to obtain them.

Penal sanctions will be increased, natural persons being liable to a fine of $700 to $7,000 and moral persons to a fine of $3,000 to $30,000. These amounts can be doubled for a second offence and tripled for a subsequent offence. In addition, if an offence continues for more than one day, it will constitute a separate offence for each day that it continues.

New protection measures in the workplace

Employees who report a failure to comply with a requirement concerning the usage of French in the workplace will benefit from new protection measures. It will be prohibited to take reprisals against any person who makes a disclosure to the Office. The dismissal or transfer of a worker or any disciplinary or other measure that adversely affects his or her employment or working conditions after the worker makes a disclosure to the Office or cooperates in its investigation is presumed to be a reprisal.

Inspection powers

The Office will have increased inspection powers as part of investigations related to an offence under the Charter of the French Language. In particular, the inspector designated by the Office will be able to enter at any reasonable hour any place where documents to which the Charter applies may be held, other than a dwelling house. As part of his or her visit, the inspector will be able to take photos, request access to any material including computers, copy and print relevant data contained in electronic devices and request the communication of any information or document relating to the application of the Charter.

Next steps

Some of the new requirements will come into force when the Bill receives Royal Assent, while others will gradually enter into force over the next three years. Businesses operating in Québec should assess their situation and take the necessary steps, if applicable, to ensure compliance with the Charter of the French Language as amended. We should also expect to see regulatory amendments as well as guidelines regarding the Office’s interpretation of the new provisions.


To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

© 2022 by Torys LLP.

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