Bill 96: A proposal for significant modifications to the precedence of French in Québec

La version française de cette communication est publiée ici.

On May 13, Québec’s government introduced Bill 96 (the Bill), An Act respecting French, the official and common language of Québec.

The Bill aims to reaffirm the predominance of French in Québec and proposes, in particular, several modifications to the Charter of the French language (Charter), including new obligations regarding the language of commerce and business, signs and contracts, the use of the French language in the workplace, communications with the civil administration, and the use of French in the legal context.

What you need to know

Bill 96 includes the following propositions:

• Commerce and business: new obligations regarding the language of commerce and business, signs, posters and contracts. The Bill also states that companies must inform and serve consumers in French.
• Labour relations: additional measures aimed at strengthening the use of the French language in the workplace. In particular, Bill 96 requires that companies with more than 25 employees (instead of more than 50 employees under the current legislation) obtain a francization certificate.
• Administration: all contracts entered into by the civil administration (the government and government departments, government, municipal and school bodies, and bodies in health and social services) must be drafted in French. In addition, all communication between a legal person and the civil administration relating to a permit or other authorization, or financial assistance must be done exclusively in French, subject to some exceptions.
• Judicial: any legal person that finds itself a party to legal proceeding should now either draft their pleading in French or accompany it with a certified translation at their own cost.
• Sanctions: the Bill provides for civil, administrative and criminal sanctions in the event of a violation.

Overview of the changes proposed in Bill 96

Commerce and business

Signs and trademarks

In Québec, there is currently a requirement for French to be markedly predominant on public signs, posters and commercial advertising. However, companies are allowed to publicly display a trademark recognized under the Trademarks Act in a language other than French as long as there is no registered French version. Bill 96 limits this exception to trademarks registered within the meaning of the Trademarks Act. In addition, Bill 96 specifies that public signs and posters visible from outside premises that appears in a language other than French must be accompanied by a “markedly predominant” French text.

Communications with consumers

Bill 96 requires enterprises offering goods or services to serve their customers primarily in French. This requirement extends to any related document such as invoices, receipts, acquittances and other documents of the same nature that are available to the public.

Consumer contracts and contracts of adhesion

The Bill provides that any enterprise using consumer contracts that must be recorded in writing under the Consumer Protection Act, contracts of adhesion, and contracts containing printed standard clauses in its business with customers or suppliers must provide them with a French version of the documents. The choice of language other than French will now only be valid where the signatory was first presented with a French version and given the opportunity to examine it, but nonetheless chose another language. It is only after examining the French version of those contracts that the parties may decide that they will be bound by its non-French version. The related documents to that contract may then be drawn up exclusively in that other language. This proposed rule would have the effect of ending the common practice of relying on a “choice of language” provision, stating that both parties expressly decided that the contract be drawn up in English only.

Labour relations

Written communications

Offers of employment or promotions and employment contracts, as well as training documents produced for the staff and all documents relating to conditions of employment made available to employees, must be drawn up in French. In addition, Bill 96 requires that any offer of employment published in English also be published in French using transmission means of the same nature and reaching a target public of a proportionally comparable size.

Linguistic requirements

The Charter currently limits linguistic requirements for languages other than French as a condition of employment to cases where the nature of the duties requires such knowledge. Bill 96 will require employers to submit to a much stricter test in order to benefit from such an exception as they will have to demonstrate that they have taken all reasonable means to avoid imposing such a requirement. More specifically, employers will have to demonstrate that 1) an assessment of the actual language needs to be associated with the duties to be performed has been carried out; 2) the language knowledge already required from other staff members is insufficient to perform those duties; and 3) the duties requiring knowledge or a specific knowledge of a language other than French have been limited as much as possible to specific positions, so as to limit the number of positions and duties requiring such knowledge.

Francization

Francization is an existing process imposed on businesses with the aim of ensuring sufficient French presence in the workplace. Under the current Charter, enterprises with more than 50 employees in Québec are required to obtain a francization certificate within six months. Enterprises employing 25 to 49 employees will now be subject to francization obligations and will be required to do so within three months. As for enterprises employing 25 to 100, they will have to set up a francization committee if the Office québécois de la langue française issues an order to this effect. Businesses that do not meet these francization requirements will not be eligible for public contracts or government funding.

Administration

All contracts or agreements entered into by the civil administration, as well as written documents sent to an agency of the civil administration by a legal person or by an enterprise to obtain a permit or another authorization of the same nature, or a subsidy or other form of financial assistance, must be drawn up exclusively in French.

Bill 96 also identifies certain situations where a version of a contract drafted in another language may be attached to the French version (in particular, in certain agreements relating to Native affairs, intergovernmental or international agreements, etc.). In certain very limited circumstances, contracts or communications with the civil administration may be drawn up in a language other than French, particularly in cases where the latter enters into a contract outside Québec.

Finally, any legal person or enterprise providing services to the civil administration will be required to offer them in French, including when these services are intended for the public.

Judicial

In its current form, Bill 96 provides that a certified translation must be attached to any pleadings drawn up in English and emanating from a legal person. The Bill also provides for a relaxation of the language requirements imposed on persons to be appointed to the office of judge, who will no longer be required to have knowledge or a specific level of knowledge of a language other than French, unless otherwise decided by the Minister of Justice and the Minister of the French Language.

Sanctions

Bill 96 proposes an array of civil, administrative and penal penalties that are more extensive than the ones currently in force.

Civil sanctions

The provisions of a contract, decision or any other act that cause injury by contravening the provisions of the Bill may be annulled at the request of the person whose rights were breached. The court seized of such a request may make any order it sees fit, including awarding damages. In consumer or contracts of adhesion, the clause drawn up in a language other than French will be deemed incomprehensible unless the contract has been drawn up in that other language on the adhering party’s express request. Bill 96 also proposes to add a new “right to live in French” in the Québec Charter of Human Rights and Freedoms, opening doors to such Charter claims and potentially even class action litigation.

Administrative sanctions

In the event of repeated non-compliance with the provisions of Bill 96, the permits and authorizations of the same nature granted to enterprises by the civil administration may be suspended or revoked.

Penal sanctions

Bill 96 provides for fines of $700 to $7,000 for natural person and $3,000 to $30,000 for businesses that contravene some of the provisions of the Bill. In the event of additional recurrences, these amounts may double or even triple.

Conclusion

The changes proposed in Bill 96 are unlikely to come into force before 2022. Its provisions will be presented to the National Assembly as part of the consultation process. Additionally, Bill 96 provides that its entry into force will be gradual and will extend over a period of up to three years from its assent. Although the Bill has not yet been adopted and changes to it may be made, companies doing business in Québec should prepare now as the proposed changes will undoubtedly have a significant impact on their activities.

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.

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