The main impacts of Québec’s Bill 96 on companies

Dentons

On May 24, 2022, the National Assembly of Québec adopted Bill 96 – An Act respecting French, the official and common language of Québec, which received royal assent on June 1st, 2022, becoming chapter 14 of the Annual Statutes of Québec, 2022 (Bill 96).

Most notably, Bill 96 strengthens the provisions of the Charter of the French language (the Charter), which governs the use of French as the language of commerce and business, while also amending a number of other statutes, including the Civil Code of Québec (CCQ), the Consumer Protection Act (CPA) and the Charter of human rights and freedoms (CHRF). Numerous provisions of Bill 96 came into force immediately when it received assent on June 1st, 2022, whereas other provisions will come into force on a staggered basis.

The following is an overview of certain key amendments and their impacts on your business.

We also invite you to read our insights for Québec employers and trademark owners.

  1. Commercial products and advertising

Products, packaging, instructions for use, menus and related documents. Bill 96 stipulates the conditions under which the translation of product packaging, accompanying documentation (such as instruction manuals and warranty provisions), and menus must be provided.

  • Until now, products sold in Québec as well as their packaging and accompanying documentation, such as instructions for use, had to be in French. The same applied to menus and wine lists. A translation could accompany the French version or be provided separately, but the translation could not be given greater prominence than the French text in terms of size, proportions, and appearance.
  • From now on, the Charter is more specific, stating that if a translation exists or is provided, it must not be available under more favourable terms than the French version.1 This rule also applies to invoices, receipts, releases and other documents of the same nature.2 Bill 96 also considerably limits the use of trademarks in a language other than French in the context of product labelling and packaging in Québec. For more information about the new requirements related to trademarks, we invite you to read our insight for trademark owners.
  • For instance: Your product comes with instructions for use that are printed in English but the French version is only available online. Or perhaps the French version is harder to find online than the English version. These situations could violate the Charter.

Advertising and publications. Bill 96 only allows advertising, publications and other similar documents intended for the public to be drawn up in a language other than French if there is a French version available under conditions that are at least equivalent to, if not more favourable than, the version in the other language.

  • Until now, commercial advertising and publications (such as catalogues, brochures and folders) intended for the public, including the commercial advertising found on company Websites, had to be in French, but could be accompanied by versions written in other languages.
  • From now on, if an English (or other language) version is offered, the Charter stipulates that it must not be accessible under conditions more favourable than those of the French version.3 This requirement applies to commercial content intended for the public on social media, websites and other digital platforms. You must make sure that all of your company’s advertising and publications are displayed in a manner such that the French version is not disadvantaged.

e-commerce. Bill 96 confers on the Office québécois de la langue française (the Office) a new power to issue orders to prohibit e-commerce in goods that are not in compliance with the Charter’s language requirements. This provision seems to be directed at e-commerce platforms or online marketplaces where foreign companies, which are generally not subject to the Charter, sell products and software whose packaging or accompanying documents (such as the instructions for use or a warranty certificate) do not comply with the Charter’s requirements.4

  • Until now, the Charter did not contain any provision specifically aimed at the online sale by foreign companies of products and software destined for the Québec market. Generally, the Office only intervened when a company operating a website was established in Québec.
  • From now on, where a company provides technological services making it possible to conclude a contract for the purchase or payment of an item that does not comply with the provisions of the Charter, the Office can order that company to cease allowing persons located in Québec from concluding a contract to purchase that item. There is some uncertainty about how this power will effectively be enforced to the extent that the foreign companies in question are not necessarily subject to the

Public signs. Bill 96 amends the conditions for the display of trademarks that are not in French.5

  • Until now, a recognized non-French trademark in Canada (including unregistered common law marks) could be displayed without needing to be translated, so long as a “sufficient presence” of French was assured through, among other things, a generic term or description describing the products or services in question.
  • Starting June 1st, 2025, only registered trademarks can be displayed publicly or appear on a product without being translated. Moreover, in a public sign visible from outside a premises, French must be “markedly predominant.”

For more information about requirements pertaining to trademarks on public signs and products, please see our insight for trademark owners.

  1. Contracts and security

Contracts. Bill 96 significantly modifies the requirements pertaining to the drafting of contracts in French.6

  • Until now, contracts “pre-determined by one party” (commonly known as contracts of adhesion), consumer contracts and contracts containing printed standard clauses had to be drawn up in French. They could be drawn up in another language if it was the express intention of the parties. In order to demonstrate that intention, the customary practice was to include a written clause in the contract stating that the parties had agreed that the contract be drawn up exclusively in English.
  • Starting June 1st, 2023, it will no longer be sufficient to insert such a so-called “language clause” in contracts of adhesion or consumer contracts. The new requirement stipulates that contracts of adhesion and consumer contracts, as well as the related documents, must be drafted in French. The parties to such a contract may only be bound by the version of the contract in another language if, after having been provided a copy of the French version, the signatory or consumer expressly requests to have the contract drafted in another language. The related documents may then be drafted exclusively in that other language.

Furthermore, unless a contract of adhesion or consumer contract has been drafted in another language at the express request of the adhering party or consumer, (1) a clause drafted in a language other than French will be deemed incomprehensible, and (2) the adhering party or consumer will be presumed to be unaware of an external clause drafted in another language.7

  • Practical consequences: If a contract of adhesion or a consumer contract is drawn up in a language other than French, and no French version exists, the adhering party or consumer may apply for its annulment without having to prove that the contravention caused any injury8. The onus will fall on the other party to the contract to show that the adhering party suffered no injury in order to avoid the annulment of the contract. The adhering party or consumer may also ask for a reduction of their obligations equivalent to the damages they sustained. As for contracts entered into with the civil administration, non-compliance with the Charter’s requirements of the Charter could, in certain circumstances, render such contracts absolutely null even if the contravention causes no injury . It is also noteworthy that the government will now have authority to apply to the courts to resolve or resiliate a contract entered into by an agency of the civil administration or to suspend its performance if the failure to comply with the Charter results from the performance of the contract. The government will have to demonstrate that such court intervention is in the interest of maintaining the status of French in Québec.9
  • Certain exceptions apply:

First, it is worth pointing out that the new requirements concerning the drafting of contracts exclusively in French will only apply to contracts of adhesion and consumer contracts. For contracts containing printed standard clauses but which are not necessarily contracts of adhesion because some of their essential elements are negotiable (for instance, a business contract presented as a form on which the parties still have to specify some of the key provisions, such as the price, term, interest rate, etc.), Bill 96 does not require that the parties draw up and that a French version be given to the adhering party in order to allow it to be examined before executing the contract in another language. However, the parties will have to expressly state their intention to that the contract be exclusively drawn up and executed in a language other than French.

Second, the new requirements do not apply to contracts used in relations outside Québec.10 This exception seems to be aimed at contracts executed with foreign companies that do not operate an establishment in Québec, but the interpretation that the Office will give to this exception remains to be seen.

Third, certain types of contracts are excluded from the new requirements, such as:

  • Loan agreements;
  • Financial instruments and contracts whose object is the management of financial risk (most notably, currency swap agreements or interest rate agreements, contracts for the purchase or sale of options, and futures contracts);
  • Contracts with a person or company operating a clearing house;
  • Contracts concluded on a platform for the trading of derivatives, securities or other movable assets (provided, in the latter case, it is not a consumer contract);
  • Insurance policies having no French equivalent in Québec when they come from outside Québec or their use is not widespread in Québec.11

It should be noted that Bill 96 sets out specific rules relating to employment contracts, which are also excluded from the application of the new requirements concerning the use of French in contracts of adhesion. To find out more, please refer to our insight for Québec employers.

Real estate sales and security. In addition, Bill 96 creates a new requirement whereby certain contracts for the sale or exchange of residential properties must now be drafted in French.

  • Until now, agreements involving real estate could be drafted and published in the government registers in either French or English.
  • From now on, agreements for the sale or exchange of residential immovable consisting of less than five dwellings and their divided or undivided portions must necessarily be drafted in French, unless it is the express wish of the parties that they be drawn up in another language.12 This rule will also apply to the related documents, the promise to enter into the purchase or exchange agreement, the preliminary contract required in the context of the sale of an existing or planned residential immovable entered into by the builder or by a developer with a natural person who acquires it to occupy it themself (Art. 1785 CCQ) and the memorandum that must accompany the preliminary contract when the sale relates to a fraction of an immovable under divided co-ownership or an undivided share of a residential building (Art. 1787 CCQ).

The express intent of the parties may be stated in an explicit clause of the contract and the related documents.

  • Starting September 1st, 2022, applications for registration of a security interest (such as hypothecs in the Land Register or in the Register of Personal and Movable Real Rights) must from now on be drafted exclusively in French.13
  1. The civil administration and public bodies

Bill 96 strengthens the status of French as the sole and exclusive language of the civil administration (i.e., the government, its ministries, governmental, municipal and educational bodies as well as health and social services).

  • Until now, contracts concluded with the civil administration generally had to be drawn up in French. Communications between the civil administration and legal persons established in Québec also had to be in French. Nevertheless, documents could be submitted to the civil administration in French or English.
  • Starting June 1st, 2023, contracts concluded with the civil administration must be drawn up exclusively in French, meaning any translations of such contracts will not be binding on the parties14. Furthermore, everything transmitted in writing to the civil administration for the purposes of concluding the contract as well as anything transmitted in writing pursuant to the contract or related to the contract must be exclusively in French. Finally, documents sent to governmental bodies for the purposes of obtaining a permit, authorization, subsidy or financial assistance must also be exclusively in French.15
  • Certain exclusions apply:

In the following cases, for example, a version of the contract in another language may be appended to the French version:

  • Loan agreements and financial instruments and contracts whose object is the management of financial risk (most notably, currency swap agreements or interest rate agreements, contracts for the purchase or sale of options, and futures contracts).16
  • Contracts entered into with a natural person who does not reside in Québec or with a legal person or enterprise that is not required to be registered under the Act respecting the legal publicity of enterprises and whose head office is located in a State where French is not an official language.17
  • Contracts entered into with certain aboriginal communities or with a business having its only establishment on a reserve.18

In the following cases, a contract may be drafted exclusively in a language other than French:

  • Where the contract is used by the civil administration in relations with persons from outside Québec.
  • The following types of contract: contracts with a clearing house, contracts concluded on a platform for the trading of derivatives, securities or other movable assets (except, in the latter case, if it is a consumer contract) and, finally, certain insurance contracts from outside Québec, as indicated above in section 2 regarding the language of contracts.19
  1. Language of legal pleadings

Bill 96 enshrines the right of Québecers to receive legal pleadings in French.

  • Until now, parties to a legal proceeding, including legal persons, had the right to file written pleadings in either French or English, at their option, without any obligation to join a translation to such pleadings.
  • Starting September 1st, 2022, a legal person will have to file their pleadings in French or, if the pleading is drawn up in English, attach to such a pleading a French translation certified by a certified translator,20e., a translator who is a member of the Ordre des traducteurs, terminologues et interprètes agréés du Québec, irrespective of the court or administrative body with which the pleadings is being filed. The translation expenses will be borne by the legal person. A legal proceeding that is not accompanied by a translation certified by a certified translator may not be filed with the court or the secretariat of an agency of the civil administration exercising an adjudicative function.21 No exceptions are provided to this rule, even if all the parties in the proceedings wish to proceed in English.22
  1. Right to live and be served in French

Bill 96 enshrines in the Charter of human rights and freedoms, CQLR c. C-12, a new “right to live in French to the extent provided for in the Charter of the French Language.”23 Similarly, Bill 96 also creates an express obligation in the Charter requiring businesses to inform and serve consumers and the public in French.24

  • Until now, everyone had the right to communicate with the civil administration and governmental and public services in French and consumers had the right to be informed and served in French by private enterprises providing goods or services. However, persons whose language rights were infringed essentially had only one remedy: filing a complaint with the Office.
  • From now on, these rights are strengthened and the scope of their application is enhanced, as every business offering goods and services to consumers will be obligated to respect their right to be informed and served in French. However, in the case of a business employing less than five people, a consumer may not avail themself of the new remedy intended to put a stop to the infringement of their right to be informed and served in French. In addition, even when a business offers goods or services to non-consumers, namely to another business, it must do so in French.
  • In practice, as a whole, these new requirements impose on businesses an overall obligation to inform and serve the public in French. Persons whose rights are infringed may still file a complaint with the Office, but they will also have more tools to assert their language rights. More particularly, individuals will now have recourse to private remedies to seek redress and compensation. Under Bill 96, individuals will also be able to apply to the courts, notably by way of an injunction, to obtain the cessation of the infringements of certain language rights,25 as well as claim potential punitive damages under the Charter of human rights and freedoms.
  1. Francization of companies

Bill 96 expands the francization requirements for companies.

  • Until now, only companies employing 50 or more people in a 6-month period had to register and obtain a francization certificate from the Office.
  • Starting June 1st, 2025, companies employing 25 or more people will be subject to this obligation.26
  • Starting June 1st, 2023, the Office will also be able to designate companies in certain sectors of activities, which employ five or more people to which it will offer French language learning services.27 This is an important change, since any company that fails to comply with its francization obligations or refuses the Office’s “offer” to institute French language learning services will not be able to enter into contracts with the civil administration and will not be able to receive any public subsidies.28

To learn more about these changes, please see our insight for Québec employers.

  1. Powers of the Office and penalties

Powers of the Office. Bill 96 strengthens and broadens the scope of the Office’s inspection and inquiry powers. In addition, when it finds that the provisions of the Charter have been contravened, upon expiration of a 15-day prior notice, the Office may order the party responsible for the violation to comply with the Charter or put a stop to the violation.29 The party responsible for the violation must, within the time specified in the order, send the Office a notice outlining the measures taken to comply with the order.30 Failure to comply with such an order will constitute a penal offence under the Charter.31 The order may be contested before the Administrative Tribunal of Québec within 30 days after its notification.32 The Office may also apply to a judge of the Superior Court of Québec for an injunction to enforce the Charter.33

Penal sanctions. Bill 96 also increases the potential fines for a violation of the Charter:34

  • Natural persons are liable to fines of $700 to $7,000.
  • Companies are liable to fines of $3,000 to $30,000.

The fines are doubled for a second offence and tripled for subsequent repeat offences. Bill 96 also provides that from now on, when an offence continues for longer than one day, it will constitute a separate offence for each day it continues.

In addition to the fines set out above a fine, on an application made by the prosecutor an additional fine may be imposed on the offender in an amount not exceeding the financial benefit realized by the offender as a result of the offence, even if the maximum fine has already been imposed.35

Administrative penalties. A company that repeatedly violates the Charter may have its permit (or other authorization) suspended or revoked by the Minister of the French Language after consultation with the Office.36

1 Bill 96, section 42 (Charter, section 51).
2 Bill 96, section 46 (Charter, section 57).
3 Bill 96, section 43 (Charter, section 52).
4 Bill 96, section 113 (Charter, section 177 para. 4).
5 Bill 96, sections 42.1 and 47 (Charter, sections 51.1 and 58.1).
6 Bill 96, section 44 (Charter, section 55) and section 151 (CPA, section 26).
7 Bill 96, section 114 (Charter, sections 204.24 and 204.25).
8 Bill 96, section 114 (Charter, section 204.20).
9 Bill 96, section 114 (Charter, section 204.18).
10 Bill 96, section 44 (Charter, section 55 para. 4).
11 Bill 96, sections 13, 14 and 44 (Charter, sections 55, 21 and 21.5).
12 Bill 96, section 45 (Charter, section 55.1).
13 Bill 96, section 125 (CCQ, article 2984).
14 Bill 96, section 6 et seq. (Charter, section 13.1 and ff.).
15 Bill 96, section 14 (Charter, section 21.9)
16 Bill 96, section 13 (Charter, section 21).
17 Bill 96, section 14 (Charter, section 21.4).
18Bill 96, sections 14 and 15 (Charter, sections 21.4 and 22.3)
19 Bill 96, sections 13, 14 and 44 (Charter, sections 55, 21 and 21.5).
20 Bill 96, section 5 (Charter, section 9).
21 Bill 96, section 116 (Charter, section 208.6).
22 Note that the provisions concerning the language of pleadings have already been the object of a legal challenge filed in the Superior Court of Québec on June 7, 2022.
23 Bill 96, section 134 (CHRF, section 3.1).
24 Bill 96, section 41 (Charter, section 50.2).
25 Bill 96, section 114 (Charter, section 204.16).
26 Bill 96, section 81 (Charter, section 139).
27 Bill 96, section 89 (Charter, section 149).
28 Bill 96, section 93 (Charter, section 152.1).
29 Bill 96, section 113 (Charter, section 177).
30 Bill 96, section 113, (Charter, section 179).
31 Bill 96, section 114 (Charter, section 205).
32 Bill 96, section 113 (Charter, section 181).
33 Bill 96, section 113 (Charter, section 183).
34 Bill 96, section 114 (Charter, section 205).
35 Bill 96, section 115 (Charter, section 208.4.4).
36 Bill 96, section 114 (Charter, section 204.27).

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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