Uncategorized – published on 15 June 2022
1Last May 24, at the National Assembly, the Government of Quebec passed Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), which subsequently received Royal Assent on June 1, 2022. Bill 96 provides for a major reform of the Charter of the French Language (the “Charter”) which modifies more than 25 other laws and substantially impacts business practices across Quebec.
You will find hereunder the main modifications to the French language legislative framework which impacts various economic sectors of the province. We suggest keeping an eye out for our upcoming bulletins where the implications of implementing these modifications in different sectors will be more specifically addressed.The purpose of the Charter modifications is to ensure the predominance of French in the following sectors:
Sectors signage, products, and contracts
Sectors real estate
Communications to staff
Currently, all employer communications to their staff, and all employment and promotion offers, must be drawn up in French. In addition, the following documents will henceforth need to be in French:
When an individual employment contract is a contract of adhesion, the version drawn up in a language other than French will not have a binding effect between the parties unless they have examined its French version and expressed the wish to be bound by the version in another language. In all other cases, an individual employment contract may be drawn up exclusively in a language other than French with the express consent of the parties.
Note that employment contracts entered into before June 1, 2022 and drawn up in a language other than French must, as soon as possible, be translated in French if the employee asks the employer for such a translation before June 1, 2023.
Employment application forms, documents relating to conditions of employment, and training documents produced for the staff that were not drawn up in French before June 1, 2022, will need to be translated in French no later than June 1, 2023.
Specific knowledge of a language other than French
As for the right of an employer to require that a person have knowledge of any language other than French, the employer will need to show that the duty which will be performed by the employee requires such knowledge and that the employer first took all reasonable means to avoid imposing such a requirement. What is meant by reasonable means is that:
For other cases, the employer shall be deemed not to have taken all reasonable means if one of the three conditions here above have not been met before requiring knowledge of another language.
However, these new conditions must not be interpreted in a way by which to impose unreasonable restructuring of the company. If the employer cannot make this demonstration, requiring that a person have knowledge or a particular level of knowledge of another language will be considered a prohibited practice under the Charter.
Francization of enterprises employing 25 or more persons
As of June 1, 2025, the process of francization provided by Bill 96 will include enterprises of 25 to 49 employees (process which currently applies to enterprises with 50 or more employees).
New time limit for submitting an analysis of the language situation
Once the Office has issued an attestation of registration, the enterprise has three months to send the analysis of its language situation (instead of six months).
An enterprise with 100 or more employees in Quebec and registered with the Office will be obligated to implement a francization committee. However, the Office can order an enterprise with 25 to 99 employees to implement a francization committee if they consider that the use of French is not generalized. The Office currently only has this power for enterprises with 50 to 99 employees.
Bill 96 reduces the time limit granted to an enterprise to submit its francization program to the Office. Where the Office considers that the use of French is no longer generalized in the enterprise, the Office will request, by means of a notice, that the enterprise adopts a francization program. The time limit to complete and submit the francization program to the Office will be reduced from six to three months upon reception of a notice. Afterwards, the enterprise with a francization program will have to submit reports to the Office, once every 12 months, on the implementation of the program, regardless of the number of persons employed with the enterprise. Under the current system, the time limit varies according to the number of persons employed.
Note that management of the enterprise must allow the francization committee to participate in the activities intended to inform the personnel on the implementation of any francization program or on the progression of the use of French in the enterprise.
Permanence of the francization
When an enterprise holds a francization certificate, it has to submit a report to the Office every three years on the progress of the use of French within the enterprise (three-year report). If the Office considers, after examining the tree-year report, that the use of French is no longer generalized at all levels of the enterprise, it may order the enterprise to develop and implement an action plan to remedy the situation. The Office is required to notify the enterprise in writing and give it at least 15 days to submit its observations. The enterprise will then have two (2) months to submit its action plan to the Office.
List of non-compliant enterprises
The Office shall publish and keep up to date a list of enterprises to which it has refused to issue a registration attestation, or whose registration attestation or francization certificate has been suspended or cancelled.
Signage, products, and trademarks
Bill 96 revokes the registered trademark exemption provided by the Charter which allowed the use of a trademark in a language other than French whether it was registered or simply used, as long as the French version of the trademark was not registered.
Carrying into effect the modifications of Bill 96, whether on public signs and posters or in commercial advertising, only a trademark registered (within the meaning of the Trademarks Act) in a language other than French can be drawn up in this other language, and only when no corresponding French version appears in the register of the Intellectual Property Office.
A markedly predominant presence of French will now be required on public signs and posters visible from outside premises, even if a trademark in a language other than French is duly registered. More specifically this means that when a trademark in a language other than French is visible from outside premises, French must be markedly predominant, which is a more rigorous obligation than the “sufficient presence of the French language” initially required under the Charter.
Bill 96 also amends the Charter by adding a new provision for products, requiring that all trademarks in a language other than French must be registered within the meaning of the Trademarks Act in order to appear on a product if a corresponding version in French of this trademark is not registered thereunder. However, if the trademark displayed in a language other than French contains descriptive or generic terms, they must also appear in French.
These provisions of Bill 96 will come into effect on June 1, 2025.
It is therefore relevant if you are using a trademark in a language other than French which does not have a corresponding French version duly registered, to proceed to its registration without delay considering that the registration process can now take up to 2 to 3 years.
Communications with consumers
Section 5 of the Charter provides the right for a consumer of products and services to request to be served in French. Bill 96 strengthens this right, as well as the use of French in commerce and businesses, by requiring form an enterprise offering goods and services to consumers to comply with the rights of consumers to be informed and served in French. Enterprises offering goods and services to a public other than consumers must now also do so in French. These obligations have been effective since June 1, 2022.
Contracts of adhesion and consumer contracts
Section 55 of the Charter now provides that before signing a contract of adhesion in a language other than French, an equivalent French version of the contract must have been provided by the contracting party to the counterparty (adhering party). Once the French version has been provided, only then can the parties agree to sign the contract and related documents in a language other than French. The contracting party cannot charge nor request any payment whatsoever from the counterparty for providing the French version of the contract. Such practice is prohibited under Bill 96. Neither the Charter nor Bill 96 makes a distinction between a contract of adhesion entered into with a consumer under the Consumer Protection Act and a merchant that intervenes in a commercial contract defined as a contract of “adhesion” under the Civil Code of Quebec. We can therefore conclude that any contract determined as an “adhesion” contract (i.e., the essential stipulations were not freely negotiated) is subject to this new obligation.
These obligations will come into effect on June 1, 2023. Note that Bill 96 included some exceptions to these new requirements.It appears they do not apply to some specific contracts, notably a contract used in relations outside Quebec.However, there are very few comments on this notion of “contracts used in relations with persons outside Quebec” and its application remains subject to interpretation.
Contracts entered into with the civil administration (the State) and the written documents regarding a permit, a subsidy, or financial assistance of the same nature, will need to be drawn up exclusively in French.
In some situations, a version in a language other than French may be attached to the French version, e.g., an intergovernmental agreement, an international agreement, or an agreement relating to Native affairs. Rare exceptions allow for contracts or communications to be drawn up in a language other than French, e.g., when the civil administration enters into a contract outside Quebec.
Bill 96 provides that, as of September 1, 2022, legal persons will only be permitted to file legal proceedings in English when accompanied by a certified French translation by an accredited translator, at the filing party’s expense. This rule will apply to courts and administrative tribunals.
As of June 1, 2024, a French translation will need to be attached immediately and without delay to any judgment rendered in writing in English by a court of justice where the judgment terminates a proceeding or is of public interest. This rule will also apply to administrative tribunals and arbitration awards.
Under Bill 96, a judge or an administrative judge will no longer be required to have knowledge or a specific level of knowledge of a language other then French unless the Minister of Justice, after consulting with the Minister of the French Language, considers otherwise, and when all reasonable means have been taken to avoid imposing such a requirement.
With Bill 96 comes a set of challenges and it does not spare the real estate sector.
First, Bill 96 will have an impact on the following contracts: the promises to purchase, preliminary contracts and memorandums, contracts for the sale or exchange of part or all of a chiefly residential immovable of five dwellings, or of a fraction of a chiefly residential immovable that is the subject of an indivision agreement or declaration of co-ownership. They may however be drawn up in a language other then French at the wish of the parties.
It is also mandatory since June 1, 2022 to file at the Land Registry Office, in French, all declarations of co-ownership with their amendments.2 As for applications for registration, they will need to be drawn up exclusively in French, notwithstanding the date of signature by the parties, as of September 1, 2022. Any document filed with the applications for registration, such as a death certificate, may be drawn up in a language other than French if it is accompanied by a translation certified in Quebec.3
Civil, administrative, disciplinary, and penal sanctions in place are strengthened by Bill 96.
On the application of the person who suffers an injury, the provisions of a contract, decision, or other act that causes injury by contravening to the provisions of the Charter, may be annulled. A Court seized of such an application can grant damages, apply for a reduction of the obligation equivalent to the damages, and make any order it sees fit. A clause in a consumer contract or contract of adhesion drawn up in a language other than French will be deemed to be incomprehensible unless the contract was drawn up in that other language on the consumer’s or adhering party’s express request. It will now be possible to make proof by testimony to establish that the Charter has not been complied with, even to contradict or vary the terms of a writing.
Permits and authorizations granted by the government to enterprises may be revoked or suspended in the case of repeated offences to the Charter.
For a first offence, a natural person is liable to a fine of $700 to $7,000, and a legal person is liable to a fine of $3,000 to $30,000. If an offence under this Act is committed by a director or officer of a legal person, the minimum and maximum fines are double those applicable to a natural person for such an offence.
However, in the event where (i) anyone divulges information he or she knows to be false or misleading in the context of a denunciation to the Office or (ii) anyone retaliates against an individual who has made a denunciation in good faith or who participates in an Office investigation, is liable to a fine that can range from $2,000 to $20,000 for an individual and $10,000 to $250,000 for a legal person.The minimum and maximum fines prescribed are doubled for a second offence and tripled for a subsequent offence.
Communications to professionals by professional orders
Except on rare occasions, professional bodies, in communications written and oral with their members and candidates to the practice of the profession, must use only French.
Monitoring the command of the French language throughout the professional’s career
Bill 96 grants the power to professional orders, for serious reason, to require that a professional obtains the certificate issued by the Office, even if said professional was previously exempt. Moreover, refresher courses in French, successfully completed, may be ordered.
Lifting of professional secrecy
A professional who wishes to denounce a contravention to the Charter would not be held to professional secrecy and can denounce a breach thereto to authorities.4
Establishment of specific offences related to the use and command of the French language by a professional in the course of his or her activities
The Act passes a new section in the Professional Code (sec. 59.1.3) which includes two separate offences.
The first obligates a professional to maintain knowledge of French that is appropriate to the exercise of their profession at all times. The second provides that a professional cannot refuse to provide a service because he or she is required to do so in French. Note that offences included in section 59.1.3 are derogatory to the profession.
All sections regarding professionals have been effective since June 1, 2022.
Even though Bill 96 is set to gradually come into effect, it is already subject to debates that we will continue to closely follow for you. Be that as it may, the impact of this reform promises to be major with significant impacts for companies doing business in Quebec. Cain Lamarre can help you see things more clearly. Do no hesitate to call our team.