Québec's Charter of the French Language (the "Charter") will be overhauled under amending legislation introduced into the National Assembly on May 13, 2021. Entitled An Act respecting French, the official and common language of Québec ("Bill 96"), the package of amendments will require many businesses operating in Québec to strengthen their commitment to the use of French, including in respect of:
- Communications with customers and clients;
- Contracts and related documents;
- External signage;
- Dealings with the Québec government and its agencies.
A key element of the new legislation is stronger sanction mechanisms, with larger and more broadly applicable fines and the possibility that non-compliant contracts could be annulled.
This post outlines the proposed changes to the Charter (and, in some cases, to language-related sections of other Québec legislation) that will most affect business. Changes in respect of employer French-language obligations and francization requirements (government certification that the use of French is generalized in a workplace), are covered in a separate blog post from our Employment Group.
Communications with Customers and Clients
A business's obligation to inform and serve its clientele in French is strengthened. It is now an obligation which, if contravened, is an offence punishable by fines.
Contracts and Related Documents
Parties may still choose to enter into an English-only version of standard-form contracts or sign an English-only version of a contract with standard-form clauses but are only permitted to do so if they have first had the opportunity to examine a French version of the contract or clause. If the parties then choose to enter into the contract (or agree to the clause) exclusively in English, the related documents may be exclusively in English. (section 55)
There are now express prohibitions against (i) requiring that a party enter into a non-French version of a standard form contract or contracts with non-French standard clauses; (ii) sending related documents that are not in French; and (iii) requiring that the other party pay for a French version of the contract or related documents. (section 55)
The rule that invoices, receipts, acquittances (releases) and similar documents are to be drawn up in French (unless they are related to an English-language contract as permitted under section 55) is maintained but now the Charter will require that a French language version always be as available as the English language version.
Certain contracts related to the sale of residential real estate must now be in French.
In addition to these changes with respect to contracts among private parties, there are new provisions relating to contracts with the Government of Québec and related entities, as discussed below.
External Signage
Two major changes are proposed with respect to external business signage, in an attempt to narrow the exemption for non-French only trademarks as much as possible.
French text must now predominate
The rules for external signage were changed in 2016 (detailed in our previous post) to permit non-French trademarks on external signage as long as there was sufficient French in the same visual field. There was no requirement that the French lettering be equal in size to that of the non-French trademark. New sections 58.1 and 68.1 will require that French be markedly predominant on public signs and posters visible from outside premises which feature a non-French trademark or the name of business which includes an expression taken from a language other than French, such as a family name, place name, expressions formed by the artificial combination of letters, syllables or figures, and expressions taken from other languages.
Only registered trademarks will be exempt
The current exemption permitting recognized trademarks to be used on public signs, posters and commercial advertising, even if they contain non-French words as part of the mark, will now be limited to marks that are registered under the federal Trademarks Act.
Sanctions
If the provisions of a contract, decision or other act contravene the Charter and cause prejudice to someone, that person may apply to have the contract, decision or act annulled. In the case of a contract, the party may ask the court to reduce the party's obligations by an amount equal to the damages the party could claim. Note that contracts with the Government of Québec and related entities are subject to a stricter standard, as described below.
If a standard form contract or a contract with standard clauses contravenes section 55 (e.g. failure to provide a French version), the adhering party (the party not imposing the standard form) may instead ask that the contract be annulled and is not required to prove that the contravention has caused the party any injury.
The Office québécois de la langue française, the government agency which oversees compliance with the Charter, may ask for an injunction to, among other things, order the removal of signage which contravenes the Charter at the expense of the offending party.
Dealings with the Québec Government and the Courts
The amendments would also affect how businesses deal with the Government of Québec, including its departments and agencies (the "civil administration" as delineated in Schedule I to the Charter), semi-public agencies such as professional orders, and the courts. In addition to an amendment that is aimed at enshrining French as Québec's only official language in the Canadian Constitution, and another that provides that the French versions of Québec statutes would prevail over the English versions from an interpretation perspective, there are a number of amendments that directly affect businesses.
Dealings with the Québec government
The obligations of the Québec civil administration to use French in their activities and when providing services have been strengthened.
Contracts with the Québec civil administration are to be in French subject to limited exceptions, although the Québec civil administration can still enter into contracts in a language other than French when contracting with a party outside Québec.
Documents provided to the civil administration to obtain a permit, or other similar type of authorization must be provided in French unless exempted by regulation.
The obligations of professional orders (such as those that regulate medical doctors and lawyers) to use French in their activities have been strengthened including when they communicate internally and with third parties.
Importantly, a contract, decision or other act of the Québec civil administration which contravenes the Charter is absolutely null, under section 204.17 of the proposed legislation. This is the case regardless of whether any "injury" results from the contravention. If a contract is compliant with the legislation but the performance of the contract leads to a failure to comply, the Government of Québec may apply to a court for the "resolution, resiliation or suspension" of the contract on the ground that this would be in the interest of maintaining the status of the French language in Québec.
Court pleadings
Court pleadings in English filed by corporations must include a certified French translation prepared at the corporation's expense.
Registration filings
Bill 96 also introduces amendments to certain provisions of the Civil Code of Québec ("CCQ") requiring that registrations filed in certain registers be registered exclusively in French.
Amended articles include:
- Article 1060 of the CCQ concerning declarations of co-ownership, amendments to the act constituting the co-ownership, and descriptions of the fractions of the divided co-ownership filed at the land register. Amendments to by-laws filed in the register held by the syndicate of co-owners must also be exclusively in French.
- Article 2984 of the CCQ concerning applications for registration will now require that such applications be drawn up exclusively in French. This article forms part of the general rules governing applications for registration in the land register and at the Register of personal and movable real rights.
Further, Article 3006 of the CCQ, as amended, will require documents that by law must accompany an application for registration be submitted for registration along with a translation authenticated in Quebec if such document is in a language other than French.
Other Sanctions
Repeated Charter contraventions may lead to revoking a business's permit or other authorization.
Fines for contravention of certain provisions of the Charter have been increased to between $700 and $7,000 for individuals and $3,000 and $30,000 in other cases. The fines apply for each day that the offence continues. These amounts are doubled for a first offence and tripled for additional offences.
In addition, fines are doubled for directors and executive officers who commit an offence under the Charter. Note that, if a corporation or its agent, mandatary or employee commits an offence under the Charter, the directors of the corporation are presumed to have committed the offence, although there is a due diligence defence.
Coming into Force
There is currently no firm indication of when Bill 96 will be passed although the Québec government has indicated its intention to do so before the end of the year. Pursuant to the Bill's transitional provisions, the proposed amendments will come into force gradually over the three years following Royal Assent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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