Bill 96 and the Charter of the French Language The Language of Business in Québec

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On June 1, 2022, Bill 96 received assent and officially became law. As a result, Québec’s Charter of the French Language (the “Charter”) underwent its first major transformation since it was passed in 1977. Highlighted below are the major business-related changes to the Charter made by Bill 96. Some of the changes took effect immediately, on the date of assent (June 1, 2022), while others will take effect at later dates, as noted below.

Employer French-language obligations and francization requirements (government certification that the use of French is generalized in a workplace) are covered in detail in a separate blog post from our Employment Group.

1. Main Aspects of Business Affected by the Changes

Bill 96 strengthens the rules respecting when French is to be used by businesses operating in Québec and businesses transacting with Québec clients and customers. As discussed below, the business community will be particularly affected by changes in the following areas:

The Charter rules set out when French must be used by a business in its relations with Québec entities and individuals and when “a language other than French” may be used. In this post, we use English as an example of “a language other than French”, but other non-French languages are affected in a similar way.

The Office québécois de la langue française (“OQLF”) is the body responsible for enforcement of Charter compliance.

2. Communications with Customers and Clients

Businesses which offer goods or services in Québec must inform and serve their clientele, both consumer and business clients, in French. This principle is now an express obligation which, if contravened, is an offence punishable by fines.

This comes into force immediately upon assent: June 1, 2022.

3. Contracts between Private Parties (non-Government) and Related Documents

The following does not cover employment contracts, which are addressed separately in our employment blog.

Adhesion Contracts (Contracts pre-determined by one party) and Contracts with Standard Clauses

The new language rules for “contracts pre-determined by one party” (now called adhesion contracts) and contracts with standard clauses are somewhat complex and we will therefore only briefly summarize below certain of the main impacts of the changes made to Bill 96.

These new rules for adhesion contracts and contracts with standard clauses will come into force one year from assent: June 1, 2023.

Basic new rule: adhesion contracts and related documents

Adhesion contracts are contracts whose main clauses have been stipulated by one party, i.e., that could not be negotiated. Sometimes it is difficult to determine whether a partially negotiated contract is an adhesion contract. Examples of standard-form contracts (now called adhesion contracts) from the site of the OQLF include employment contracts, collective agreements, insurance contracts, leases and co-ownership declarations.

Parties may still choose to enter into an English-only version of an adhesion contract (formerly called a standard-form contract) but only if they have first had the opportunity to examine a French version of the contract. If the parties then choose to enter into the contract exclusively in English, the related documents may be exclusively in English.

Therefore the basic new rule is that businesses must present a French version of an adhesion contract to the adhering party (whether a consumer or a business) prior to the other party choosing to sign an English-only version. A party may not require that the other party pay for a French version of an adhesion contract or related documents if that party is entitled to a French version.

Exempted adhesion contracts

The following business adhesion contracts are exempted from the above rule if the adhering party has expressly asked that the contract be in English only:

  1. Loan contracts, financial instruments and contracts whose object is the management of financial risks, including currency exchange or interest rate exchange agreements, contracts for the purchase or sale of options, or futures contracts;
  2. Contracts entered into with a person or company that carries on the activities of a clearing house;
  3. Contracts entered into on a platform for trading a derivative instrument referred to in the Derivatives Act (Québec), a security referred to in the Securities Act (Québec) or other movable property, provided, in the latter case, that it is not a consumer contract;
  4. An insurance policy if there is no French-language equivalent in Québec and it meets one of the following conditions: (a) it originates outside Québec; or (b) its use is not widespread in Québec; and
  5. A contract used in relations outside Québec.
    (together, “exempted adhesion contracts”).

The exception for a contract “used in relations outside Québec” will likely be very important for certain businesses involved in cross-border transactions. However, pending any further guidance from the legislator, its exact scope is unclear.

Contracts with standard clauses

Like exempted adhesion contracts, contracts with standard clauses may be entered into in English only if the parties have expressed their wish to do so (which is similar to the current rule in the Charter, e.g. pre-Bill 96).

Related documents

If the parties choose to enter into an adhesion contract or contract with standard clauses exclusively in English, the related documents – such as invoices, receipts and acquittances (releases) – may be exclusively in English as well. Otherwise, there must be a French version of these related documents.

Sanctions for Non-compliance

Exempted adhesion contracts and contracts with standard clauses: non-compliance (such as sending an exempted adhesion contract or contract with standard clauses in English only to a party without that party having asked that it be in English only) may lead to a fine and/or order for compliance.

Other adhesion contracts: if the non-compliance of the contract with the Charter (e.g. no French version being presented when required to do so) causes prejudice to the adhering party (which is assumed without further proof if there is non-compliance), the contract may be declared null and void at the request of the person who suffers the prejudice or that person may claim damages instead.

Consumer Contracts

The new rule under the Québec Consumer Protection Act is that the parties to a consumer contract may be bound by a version of this contract in English only if, after examining a French version of the contract, such is their express wish. The documents related to this contract may then be drawn up exclusively in English.

4. Public Signs and Posters

Basic Rule and Modified Trademark Exemption

Bill 96 has modified the current trademark exemption for public signs and posters visible from the outside and added new requirements if these signs and posters include the name of a business which includes a non-French expression.

The basic rule will remain the same: French must be markedly predominant (as defined in a regulation under the Charter) on public signs and posters visible from outside the premises.

The current regulations under the Charter include an exemption for recognized non-French trademarks. As detailed in a previous post, the rules for external signage were changed in 2016 to permit the use of recognized non-French trademarks on external signage as long as there was sufficient French in the same visual field. There was no requirement that the “sufficient French” be equal in size to that of the non-French trademark.

This exemption permitting recognized non-French trademarks to appear on public signs and posters visible from the outside will now be limited to marks that are registered under the federal Trademarks Act. Further, French must be markedly predominant on such signs and posters if they include (i) a non-French trademark or (ii) the name of business which includes an expression taken from a language other than French.

These changes come into force three years after assent: June 1, 2025.

Sanctions for non-compliance

The OQLF may, among other things, ask for an injunction to order the removal of signage which contravenes the Charter at the expense of the offending party.

5. Inscriptions : Labels, Directions for Use and Other Documents that Accompany a Product

The rule for French on inscriptions on products applies to labels, directions for use, warranties and other documents accompanying a product.

Basic rule

There must be a French version of everything on an inscription and on documents supplied with the product such as directions for use, warranty, etc. unless an exception applies. Another language may also be used but the other language cannot have greater prominence than the French inscription and cannot be available on more favourable terms.

This change comes into force on assent: June 1, 2022.

Exceptions

The current exemption permitting recognized English trademarks to be used on labels and on documents supplied with a product has been modified to permit a registered non-French trademark to appear on a product, even in part, where there is no corresponding registered French version of the trademark. However, if a generic term or a description of the product is included in the mark, the generic term or description must appear in French on the product or on a medium that is permanently attached to it.

The changes in the trademark exemption for inscriptions come into force three years after assent: June 1, 2025.

Sanctions for non-compliance

The OQLF may order a party which contravenes the Charter requirements for inscriptions to comply with the Charter or stop selling the product with the contravening inscription. Notice must be given in certain cases.

6. Contracts with the Québec “Civil Administration”

“Civil administration” is defined in Schedule I of the Charter to include the Government of Québec, Québec government agencies, corporations fully owned by the Government, most municipalities, school bodies, and bodies in the health and social services network, among others.

The changes to the exceptions come into force one year from assent: June 1, 2023.

Basic Rule

The basic rule remains the same: contracts with the Québec civil administration must be in French, subject only to limited exceptions.

Exceptions

The exceptions include the following:

  1. Contracts may be in English only when the Québec civil administration is contracting outside Québec. This exception is the same as in the current Charter.
  2. Certain contracts may be in French and English including loan contracts, financial instruments and contracts whose object is the management of financial risks, certain international and intergovernmental agreements and agreements with First Nations.

Sanctions for non-compliance

A non-compliant contract or instrument (e.g. English-only when it should be in French) with the Québec civil administration may be held to be absolutely null, whether or not the contravention causes any prejudice, if the following three elements are all present:

  1. An agency of the Québec civil administration is a party to the contract;
  2. The provisions of the contract contravene any of sections 21 to 21.2 of the Charter, i.e., the Charter rules on the language of contracts with the Québec civil administration; and
  3. The contract has no foreign element.

Therefore, contracts with the Québec civil administration which have a foreign element should not be declared absolutely null for contravention of Charter language rules although fines may be imposed for non-compliance. The term “foreign element” is also used in article 3111 (choice of law governing a contract) of the Civil Code of Québec and interpretation by the courts in that context (looking to the residence or domicile of the parties, place where contract is concluded, etc.) should be useful in determining the scope of (iii).

If a contract is compliant with the Charter 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 [termination] or suspension” of the contract. The court shall grant the Government’s request if the Government is able to show that this would be in the interest of maintaining the status of the French language in Québec although the court will also take into account the public interest in maintaining the contract.

7. Court Pleadings

Court pleadings in English filed by legal persons, such as corporations, must include a certified French translation prepared at the legal person’s expense. The translation must be done by a licensed translator.

This change comes into force three months from assent: September 1, 2022.

8. 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:

  1. 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 will now require that these be drawn up exclusively in French. Amendments to by-laws filed in the register held by the syndicate of co-owners must also be exclusively in French.

    This change comes into force on assent: June 1, 2022.
  2. 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

    This change comes into force three months from assent: September 1, 2022.

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.

Note that there are certain exceptions to the above rules for modifications or corrections to acts filed at the land registry office before June 1, 2022.

9. New Sanctions and Powers of the OQLF

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 legal person or its agent, mandatary or employee commits an offence under the Charter, the directors of the legal person are presumed to have committed the offence, although there is a due diligence defence for them.

Repeated Charter contraventions may lead to revocation of a business’s permit or other authorization.

Bill 96 also provides the OQLF with broader enforcement powers including increased powers of inspection and investigation and new powers to issue orders.

The changes to the sanctions and powers of the OQLF come into force on assent: June 1, 2022.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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