If you own a corporation doing business in Quebec, employ more than 25 people in that corporation, or finance a corporation with personal property security, the new French language requirements may have an impact on your business operations.
On June 1st, 2022, the Act respecting French, the official and common language of Québec (the “Bill 96”) received assent, bringing into force several provisions amending the Charter of the French language (also known as the “Bill 101” and hereinafter referred to as the “Charter”) and twenty other regulations and legislative measures.
With the affirmation of French as the common and official language in Quebec as a cornerstone, the following article will explore and demystify the main changes your corporation will need to make to comply with this new Bill 96.
Language of the legislature and the courts
As of September 1st, 2022, all legal documents issued by a legal person must be drafted in French or accompanied by a certified translation in that language, such as documents filed to settle a dispute between shareholders or to sue a client in default. In this regard, a document that does not comply with this requirement can no longer be filed at a court office in Quebec.
Language of the civil administration
Communications between companies and Quebec government agencies that relate to obtaining a permit, financial assistance or any other authorization must be made exclusively in French.
Contracts entered into with the government in Quebec must also be written in French, although certain exceptions apply.
Note that this requirement will come into force on September 1st, 2022.
Language of labour relations
An important part of the government’s reform with the coming into force of Bill 96 is to provide a French language workplace for employees in Quebec. It also prohibits discrimination and/or harassment of a person on the basis that he or she has exercised the right to communicate in French or does not speak a language other than the official language.
On one hand, individual employment contracts must also be drafted in French when they are adhesion contracts. Thus, in a contract where the essential clauses are decided in advance by one party (generally the employer) and whose terms cannot really be negotiated, the parties will only be bound by a version in a language other than French:
- when they have read the French version of the contract first; and
- that they have expressly decided to be bound by the version in another language.
On the other hand, the individual contract of employment concluded by mutual agreement between an employer and an employee (we frequently find this when hiring an executive, for example) may be drafted only in another language, at the express wish of the parties.
In addition, employers will have to prove certain additional criteria when they require the use of a language other than French within their corporation (particularly when hiring). Under the Charter, employers only had to demonstrate that knowledge of another language was necessary to perform the job. Now, the employer must have taken all reasonable steps to avoid imposing such a requirement. To that end, the employer must have previously:
- assessed the actual language needs associated with the duties to be performed;
- made sure that the language knowledge already required from other staff members was insufficient for the performance of those duties; and
- 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 the official language.
Language of commerce and business
As mentioned above, adhesion contracts must be written in French. For a party to express a wish to be bound by a version in a language other than French, it must have been given the opportunity to read the French version in the first place. Therefore, the usual clause inserted in contracts providing that the parties agreed to conclude transactional documents in a language other than French will no longer be sufficient for adhesion contracts.
The same applies to catalogs, brochures, social media and other documents that must be written in French as required by the Charter. If a corporation decides to make such a document available to the public in a language other than French, the corporation must make a French version available in conditions that are at least as favourable.
Under the Charter, the requirements for public sign of the business name visible from the outside are reinforced and French must now appear in a manner that is predominant over any other language. A 2:1 ratio between the two languages is considered adequate in the circumstances. There is also an exception for certain trademarks that allows for an override of the predominance of French requirement. Thus, if a trademark is duly registered and there is no corresponding French version in the trademark database, the corporation may benefit from the exemption and display its mark outside exclusively in another language. It should be noted that the provisions of this subsection will come into force three years after assent, that is, on June 1st, 2025.
In addition, registrations in the Register of Personal and Movable Real Rights (the “RPMRR“) will have to be drafted exclusively in French. Security interests such as movable hypothecs will therefore no longer be registered in a language other than French.
Francisation of enterprises
Under the Charter, only corporations with 50 or more employees were subject to the francization process. With the amendments made by Bill 96, these requirements will be extended to corporations with more than 25 employees (the number of employees is calculated over a six-month period). In other words, the Office Québécois de la langue française (the “OQFL”) will have the power to require the creation of a francization committee for this category of corporation if it concludes that the use of French is not generalized at all levels within the corporation.
It should also be noted that the provisions related to this francization process will come into force three years after Bill 96 is assented to, that is, on June 1st, 2025.
Consequences and non-compliance
Bill 96 broadens the range of sanctions against corporations for non-compliance with the provisions of this Act. Any person may now bring a civil action when he or she believes that his or her French language rights have been violated. Fines have been increased to the amount of $3,000 to $30,000 for a first offence (previously the maximum fine was $20,000). They will double and may even triple for subsequent offences.
There is now a presumption that the directors committed the offence perpetrated by a corporation under Bill 96. The proof by the directors that they acted diligently in taking all necessary precautions to avoid this situation, however, counterbalances the rule.
A party who feels aggrieved by the provisions of a contract that does not comply with the requirements set out in Bill 96 may apply to have the contract declared null and void or to have its concurrent obligations reduced.
Finally, the OQFL may use injunctions to stop conduct that is found to be in violation of the Act (or to force an offender to comply with the provisions of Bill 96). An injunction will also be used to order the destruction or replacement of signs, advertisements, illuminated signs and billboards that do not comply with the requirements of the Act.
While this article contains a global analysis of the main rules directly affecting corporations, there are several other specific rules. With its professionals well versed in Bill 96, the DS Lawyers team is available to support you in the implementation of the changes necessary to ensure your corporation’s compliance with the requirements imposed by Bill 96. Please do not hesitate to contact a member of our team if you have any questions regarding this article or if you would like to receive more information about Bill 96.