June 15, 2022

Key considerations following the adoption of Quebec’s French-language reform

On May 24, 2022, following a debate that made headlines, the Quebec National Assembly finally adopted the Act respecting French, the official and common language of Québec (Bill 96), which provides for a major reform of the 1977 Charter of the French language (the Charter, also known as Bill 101). Bill 96 received royal assent on June 1, 2022.

Bill 96, which aims to reinforce the predominance and use of French in Quebec, imposes new obligations regarding the language of work, commerce and business, as well as certain contracts and public signs.

Bill 96 also reinforces the remedial authority of the Office québécois de la langue française (OQLF), allowing it to impose higher fines, to issue orders for failure to comply, and to apply for injunctions to have non-compliant signs or advertisements removed or destroyed.1 Now that it has been adopted, Bill 96 will gradually come into effect over the next three years.

Here is a summary of the key changes to expect so that you can prepare for the gradual coming into effect of Bill 96.

French as the language of justice

French pleadings

A certified French translation prepared by a certified translator must be attached to any pleading drawn up in English that emanates from a legal person. The legal person must bear the translation costs. A pleading to which no certified translation is attached cannot be filed at a court office or at the secretariat of an agency of the civil administration that exercises an adjudicative function or within which a person appointed by the government or by a minister exercises such a function. The court clerk or the secretary must notify the legal person concerned without delay of the reason for which the pleading cannot be filed.

N.B.: This obligation will come into effect on September 1, 2022.

French as the language of work

N.B.: Unless otherwise provided, the changes below came into effect on June 1, 2022.

Written communications with staff, policies and contracts of employment

Golden rule: Employers must respect their workers’ right to carry on their activities in French, which means that they will need to use French in their written communications with them, among other things.

They will therefore need to ensure that offers of employment, transfer or promotion are published in French, and that employment application forms, documents relating to conditions of employment and training documents produced for staff are drawn up in French

Note that these documents may also be available in a language other than French.2

Although individual employment contracts will need to be drawn up in French, it will be possible to draft them exclusively in a language other than French at the express wish of the parties.

Note, however, that the parties to an employment contract that is a contract of adhesion3 may only be bound by a version in another language if it is found, after examining the French version, that such is the express wish of the parties.

Written communications intended for staff, an association of workers or an individual employee must be in French.

However, employers may communicate in writing with a worker exclusively in a language other than French only if he or she so requests.

Knowledge of a language other than French

Employers may not take any action against staff members because they do not have a specific level of knowledge of a language other than French where the performance of their duties does not require it.

The burden will be on the employers imposing such a requirement to demonstrate that the duties require knowledge of another language and that they have taken all reasonable means beforehand to avoid such a requirement.

Employers will therefore need to have (i) assessed the actual language needs associated with the duties to be performed, (ii) made sure that the language knowledge of other staff members was insufficient for the performance of those duties, and (iii) restricted 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.

Francization program and certificate – 25 workers and more

Businesses employing 25 persons or more for a period of over six months will need to be registered with the Office québécois de la langue française (OQLF).

N.B.: This requirement will come into effect on June 1, 2025.

Businesses will then have three months to transmit an analysis of their linguistic situation. 

Once the businesses' analysis of their linguistic situation is complete, the OQLF will be able to either (i) issue a certificate of francization or (ii) demand that a francization program be implemented if the use of French is not generalized at all levels of the business.

The requirement that a francization committee be created for businesses with 100 workers or more still stands. This committee has also been assigned greater responsibilities.

In the future, senior and other executive officers will need to have a “good knowledge” of French. Indeed, this criterion will be taken into consideration when determining whether the use of French is generalized at all levels of the business.

Preventing and putting an end to harassment

Employers will be required to take reasonable means to prevent and, if brought to their attention, put an end to discrimination or harassment because workers have no or little command of a language other than French or because they have demanded that their right to work in French be respected.

Complaints process

In the event of a prohibited practice, workers may assert their rights by filing a complaint before the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). If the complaint is not resolved by the CNESST, it will be referred to the Administrative Labour Tribunal.

In a union environment, however, workers must have access to the arbitration procedure provided for in the collective agreement.

French as the language of work and business

Confirmation of French as the language for interacting with consumers

Under Bill 96, businesses that offer goods or services to consumers must respect their right to be informed and served in French. What is more, businesses that offer goods or services to a public other than consumers must inform and serve it in French.

Packaging with inscriptions drafted in a language other than French

Under the current regime, a product, its container or its packaging, or a document or object supplied with it (e.g. directions for use), may have inscriptions in a language other than French, provided that they are not given greater prominence than those in French. In addition to the current requirement, Bill 96 states that any inscription drafted in a language other than French must not be “accessible on more favourable terms” than the French inscription.

Tightening of the exception for recognized trademarks on packaging

Bill 96 considerably narrows the scope of the exception for the use of trademarks in a language other than French on products and packaging. Under the current regime, a recognized trademark (whether registered or unregistered) may only appear on a product in a language other than French if there is no registered French version of the same trademark. Bill 96 limits this exception to registered trademarks. Moreover, if the English trademark contains generic components or includes a product description, it must also appear in French on the product or on a medium that is permanently affixed thereto.

It is crucial to review your trademark portfolio to make sure that your trademark registrations are appropriate. We also recommend that you examine your packaging to ensure that it complies with this new requirement. 

N.B.: This requirement will come into effect on June 1, 2025.

Use of French in commercial communications

Regardless of the medium used, catalogues, brochures, pamphlets, business directories, order forms and any other similar documents that are available to the public must be written in French. A business may not make such a document available to the public in a language other than French unless the French version is accessible on terms that are at least as favourable.

Use of French in contracts of adhesion

Under the current regime, contracts of adhesion (i.e. contracts in which one party imposes a series of non-negotiable clauses on the other), contracts containing printed standard clauses, and the related documents must be drawn up in French, but may be drawn up in English, or in another language, at the express wish of the parties. In Quebec, we often see contracts drafted in English with a clause stating that “this contract is drafted in English at the request of the parties.”

Bill 96 further tightens the requirements for the use of French in contracts of adhesion: the parties to such a contract may be bound only by its version in a language other than French if, after its French version has been delivered to the adherent, they expressly wish to do so. The documents relating to the contract may then also be drawn up exclusively in that other language. In practical terms, the party imposing contractual content on the other party will have to allow the latter to consult the French version of the contract before the parties commit to be bound by the English version or offer a bilingual version of the contracts of adhesion it uses.

Certain exceptions to this rule are provided for in Bill 96, notably with respect to contracts used in dealings outside Quebec. In addition, the new provision applies only to contracts of adhesion, and not to contracts entered into by mutual agreement containing standard clauses.

Companies should review their main contracts and determine which ones are likely to be contracts of adhesion. If not already done, a French version of these contracts and related documents should be prepared in order to be provided to the adhering party.

N.B.: This requirement will come into effect on June 1, 2023.

Use of French in residential real estate contracts

Bill 96 also adds provisions relating to residential real estate contracts (including promises to purchase), which must be drawn up in French. These contracts may, however, be drafted exclusively in a language other than French at the express wish of the parties.

N.B.: This requirement came info effect on June 1, 2022.

Tightening the exception for recognized trademarks in public signs and commercial advertising

Currently, with some exceptions, public signs in all forms must be in French or, if another language is used, in such a way that French is markedly predominant. Under the current regime, this obligation is lessened in the case where a recognized trademark is used: it is then permitted that the mark be displayed in a language other than French (if there is no registered French version of the same mark), as long as French maintains a sufficient presence.

Following the implementation of the relevant provisions of Bill 96, a trademark may appear only in a language other than French if it is registered and there is no French version registered. It is also important to note that, subject to this exception, for any public signs visible from outside premises, French must be markedly predominant (i.e., at least twice as large).

N.B.: This requirement will come into effect on June 1, 2025.

Predominance of French on public signs and posters bearing a business’s name

On all public signs and posters visible from outside premises, the French language must be "markedly predominant" on these signs or posters if they bear the business’s name that includes an expression from a language other than French (i.e., at least twice the size).

We recommend that you take an inventory of your trademarks that appear on your outdoor and indoor public signs or commercial advertisements only in a language other than French.

N.B.: This requirement will come into effect on June 1, 2025.

Penal sanctions and provisions

Anonymous disclosure of non-compliance

Bill 96 allows any person to anonymously disclose to the OQLF information that could demonstrate that a failure to comply with the Charter has occurred or is about to occur. Such a report may be made even if the reporting person  is subject to communication restrictions under a contract or a duty of loyalty or confidentiality. Certain exceptions apply. A legal person who retaliates against an individual who makes a report in good faith will be subject to a fine from $10,000 to $250,000.

New powers granted to the OQLF

Bill 96 specifies the scope of the authority of OQLF inspectors to access data contained in electronic devices and computer systems to which persons present on the premises during an inspection have access.

Under the current regime, the OQLF gives formal notice requiring an offender to comply within a given period of time, failing which the OQLF refers the matter to the Director of Criminal and Penal Prosecutions. Moving forward, following a written notice of at least 15 days, the OQLF will be able to issue orders, including against distributors or retailers selling products whose packaging, instructions for use or warranty certificate are not compliant. These orders must be contested before the Administrative Tribunal of Québec within 30 days of their notification.

The OQLF may apply to the Superior Court for an injunction to remove or destroy any non-compliant advertising material. Such an order may be issued against the owner of the advertising material or any individual who has placed or caused to be placed such material.

Increase in the amount of fines

Bill 96 is doubling the minimum fine for any misrepresentation to the OQLF or any contravention of an order of the OQLF, as well as when an offence is committed by a director or officer of a legal person. It also provides that, unless they have exercised due diligence, directors of a legal person will be presumed to have committed an offence by that legal person.

 

Footnotes

1   Bill 96, sec. 113 (amending sec. 184).

2   Their French version, however, must be available on terms that are at least as favourable.

3   Under the Civil Code of Québec, a contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.

 

Authors: Emmanuelle Boilard, Catherine Daigle, Dominic Dupoy, Caroline Jodoin, Fortunat Nadima Nadima and Sandrine Raquepas

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