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Bulletin

"En français, s'il vous plaît": Imminent Reform of the Charter of the French Language (Bill 101)

Fasken
Reading Time 8 minute read

Bulletin - Bill 96

On May 13, 2021, Simon Jolin-Barrette, Minister Responsible for the French Language, tabled Bill 96, An Act respecting French, the official and common language of Québec (the “Bill”) in the National Assembly of Québec. This 100-page Bill aims to “affirm that the only official language of Québec is French.”[1] Several laws are covered by the proposed amendments, including The Constitution Act, 1867, the Charter of Human Rights and Freedoms, the Civil Code of Québec, but most importantly, the Charter of the French Language commonly known as Bill 101 (the “Charter”).

The forthcoming reinforcement of the rules governing the use of Molière’s language will have strong repercussions on organizations with activities or co-contractors in Québec. In order to better understand and prepare for the many new obligations and language restrictions, we invite you to read this summary of the main changes proposed in the Bill, but also to:

In the meantime, here is an overview of the changes proposed by Bill 96 and their consequences for organizations having a direct or indirect impact on Quebec:

Francization of Companies with 25 or More Employees

  • If a company has 25 or more employees in Québec, it must register with the Office de la langue française du Québec (the “Office”) and report on the situation of the French language in their organization.[2] Currently, the threshold is 50 or more employees.[3]

    • Following the receipt of the report, the Office can order the creation of a francization committee within such a company if it finds that the use of French is not generalized at all levels of the organization.[4]
    • The company registered with the Office must be represented by a designated member of its management and, where applicable, by the representative designated by the francization committee.[5]
  • The Government of Québec, its departments, public and semipublic agencies, health services and other bodies of the Québec public administration (collectively, the “civil administration”)[6] will no longer be able to contract with, or grant subsidies to, a company that does not have a certificate of registration with the Office, has not provided an analysis of its linguistic situation within the prescribed time period, does not have an attestation of application for a francization program or a francization certificate, or if its name appears on the list of businesses that have had an attestation of linguistic compliance refused, suspended or revoked.[7] Such a list will now be managed by the Office.[8]

Public Posting

  • Currently, French must be “clearly predominant” in public signs and commercial advertising. However, the obligation for trademarks is reduced: a trademark may be displayed in a language other than French (except where a French version has been filed with the Federal Register), as long as French maintains a “sufficient” presence.[9] This sufficiency criterion is usually met by adding a generic or descriptive term to the trademark name (for example, “les chaussures Cheap & Strong”).[10]
  • It will no longer be sufficient to have a registered trademark in English only, or to have a sufficient presence of French in public signage. The French text will need to be generally twice as large or, alternatively, the visual impact of the French text will need to be much greater.[11] Also, if the trademark displayed inside the premises is visible from the outside, this new obligation will remain applicable.

Interactions with Clients

  • A company that offers goods and services to consumers or a non-consumer public must now inform and serve them in French.[12] Customers or other individuals who are subject to a breach of this obligation will be able to apply for injunctive relief in most cases, or simply file a complaint with the Office.[13]
  • Whatever the format, catalogues, brochures, flyers, business directories, order forms and any other publication or document of a similar commercial nature that is available to the public must be written in French.[14]

    • This expanded obligation would therefore now unambiguously encompass websites and other digital platforms aimed at offering goods or services in Québec.
    • However, the difficult issue of the extraterritorial application of this obligation to e-commerce businesses without an establishment in Québec has not been resolved.

Obligations of the Employer

  • The law lists several documents that must be drafted in French: offer of transfer, individual written employment contract, communication to a particular worker or worker association, and communication following the end of the employment relationship. [15]
  • The following documents must be available in French: application forms, documents relating to working conditions, training documents prepared for the staff.[16]
  • For an employer to be able to require the knowledge of a language other than French as part of the hiring process, they will need to demonstrate that they:

    • evaluated their actual linguistic needs in relation to the tasks to accomplish as part of a particular position;
    • ensured that the language skills required of other staff members were insufficient to accomplish these tasks; and
    • restricted as much as possible the number of positions involving tasks that require the knowledge or a specific level of knowledge of a language other than French.[17]

Language of Contracts and Formal Defects

  • The parties to the contracts of adhesion or contracts of a similar nature (non-negotiated standard contracts such as online terms and conditions) as well as to consumer contracts[18] must receive the French version before agreeing to contract in a language other than French. Otherwise, the consent or acceptance of the contract will not be valid.[19]

    • It is currently possible to bypass this requirement by inserting a clause to the effect that it is the express wish of the parties that the contract be written in a language other than French. This customary provision will no longer be sufficient.[20]
    • A contract of adhesion that was concluded in a language other than French, without a French version having been made available, may be annulled at the request of the adherent without having to prove prejudice, but the contracting party may prove the absence of such prejudice to avoid a nullity. Alternatively, the adherent may claim damages.[21]
  • There will also be a presumption that the adherent has not been made aware of the reference to an external clause or of a clause written in a language other than French.[22]

Interactions with the Government

  • Currently, the contracts with the civil administration are written in French, except for the contracts with international partners/suppliers that may be in another language.[23] From now on, even when the civil administration may contract in a language other than French (for example, with natural persons outside Québec or legal persons not registered in Québec whose head office is located in a non-French-speaking country), a French version must be available to its staff members.[24]
  • All the written requests submitted to the civil administration to obtain a permit, another authorization, a subsidy or another form of financial aid must be written exclusively in French from now on.[25]
  • All services rendered to the civil administration by a legal person or a company must be in French. When the services thereby obtained are intended for the public, the civil administration must require its co-contractor to comply with the obligations set out in the Charter. [26]

Practice of the Professions, Court Proceedings and Others

  • In addition to the current requirement of an adequate knowledge of French at the time of issuance of a permit to practise by a professional order, the professional will have to maintain a knowledge of French appropriate for the practice of his profession. Moreover, it is prohibited for a professional, in the practice of their professional activities, to refuse to provide a service for the sole reason that they are required to use French in the performance of that service.[27]
  • A certified French translation must be attached to any pleading written in English by a company or other legal person who is a party to a legal proceeding in Québec, at its own expense.[28]
  • Security interests (such as mortgages) will have to be registered (via registration forms in public registers) and enforced (particularly by means of mortgage notices) in French.[29]

Whistleblowing and Increasing Sanctions

  • Any person may denounce a contravention of the amended Charter, despite confidentiality obligations that may bind them to their employer, including professional secrecy, except that which binds the lawyer or notary to their client. [30]
  • Fines for legal persons who violate the amended Charter have been increased as follows:[31]

     

    Charter

    Amended Charter

    First offence:

    $1,500 to $20,000

    $3,000 to $30,000

    Second offence:

    $3,000 to $40,000

     

    $6,000 to $60,000

    Subsequent offence:

    $9,000 to $90,000

  • Directors will now be deemed to have committed the offence under the amended Charter unless they exercise due diligence,[32] and may therefore be personally liable. The amounts of the fines for directors and officers are double those applicable to natural persons, which is equivalent to the following sanctions:[33]

    First offence:

    $1,400 to $14,000

    Second offence:

    $2,800 to $28,000

    Subsequent offence:

    $4,200 to $42,000

  • Furthermore, when an offence under the amended Charter continues for more than one day, it may constitute a separate offence for each day during that period.[34]
  • Finally, a repeated contravention of the amended Charter may lead to the suspension or revocation of a permit or other authorization issued by the civil administration.[35]


[1]       Bill 96, Explanatory Notes

[2]       Charter as amended by Bill 96 (“amended Charter”), s. 139

[3]       Charter, s. 139

[4]       Charter et amended Charter, s. 140

[5]       Amended Charter, s. 138.1 and 139.1

[6]       See Schedule I of the amended Charter for an exhaustive list of the organizations that constituent the “civil administration” within the meaning of this text.

[7]       Amended Charter, s. 152.1

[8]       Id., s. 152

[10]     Charter, s. 58.

[11]     Regulation clarifying the scope of the expression “markedly predominant” for the purposes of the Charter of the French Language, s. 2

[12]     Amended Charter, s. 50.2

[13]     Id., 204.16

[14]     Id., s. 52

[15]     Id., s. 41

[16]     Id., s. 41

[17]     Id., s. 46.1

[18]     Bill 96, s. 151

[19]     Amended Charter, s. 55

[20]     Amended Charter, s. 55

[21]     Amended Charte, s. 204.20

[22]     Id.

[23]     Charter, s. 21

[24]     Amended Charter, s. 21.4

[25]     Id., s. 21.9

[26]     Id., s. 21.11

[27]     Id., s. 35.1

[28]     Id., s. 9

[29]     Bill 96, s. 125 and 126

[30]     Amended Charter, s. 165.22

[31]     Id., s. 205 and 206

[32]     Id., 208.4.2

[33]     Id., s. 207

[34]     Id., s. 208

[35]     Id., s. 204.27