Canada: In French Please!

On April 27th of this year, a group of leading retailers, including Best Buy, Costco and Wal-Mart, won their case before the Quebec Court of Appeal, which confirmed that the display of their English trademarks on storefront signage of the locations they operate in Quebec is in compliance with the Charter of the French Language (Charter). 

The Court of Appeal upheld the judgment rendered by the Superior Court of Quebec in April 2014 in which Justice Michel Yergeau found that pursuant to Section 25 (4) of the Regulation respecting the language of commerce and business (Regulation), the display of a trademark in a language other than French is permitted on public signs and in commercial advertising, especially on storefront signage, as long as a French version of the trademark has not been registered.

This judgment was rendered following a joint hearing in October 2012 in connection with a motion for declaratory judgment filed by Best Buy, Costco, Gap, Old Navy, Guess?, Wal-Mart, Toys "R" Us and Curves was heard before the Superior Court of Quebec, after these retailers received formal notices from the Office québécois de la langue française (the Office), demanding that they modify their signage at the risk of having their francization certificate suspended. The formal notices were set in the context of a campaign initiated by the Office with regards to the use of trademarks in a language other than French on public signs and in commercial advertising.

However, the victory of these retailers appears to be only temporary given that the Quebec Council of Ministers approved on June 17, 2015 a draft legislation submitted by the Minister for the Protection and Promotion of the French language, Hélène David, which aims to alter the Regulation in order to force companies to add a French generic term to the English trademarks they display at their Quebec locations. The purpose of the amendment is not to impose the translation of the trademark, but rather to add a descriptive or generic French title to the trademark in a language other than French.

The new Regulation will be published in the Official Gazette in the Fall, following its approval by the Council of Ministers. The Council will then have 45 days to submit comments. The entry into force of the new Regulation is expected in early 2016. The new Regulation provides for transitional measures so that companies may be granted a compliance period.

Following this announcement, the Attorney General of Quebec, Stéphanie Vallée, confirmed that the Government of Quebec would not appeal the decision of the Court of Appeal rendered on April 27th of this year.

Doing Business in Quebec

In Quebec, the Charter requires employers to draft written communications to their staff, offers of employment or promotion as well as collective agreements in the official language of the province, which is French (Sections 41 and 43).

Furthermore, the Charter prohibits an employer from dismissing, laying off, demoting or transferring a member of his staff for the sole reason that he is exclusively French-speaking or that he has insufficient knowledge of a particular language other than French (Section 45).

Similarly, an employer is prohibited from requiring the knowledge or a specific level of knowledge of a language other than French in order to obtain an employment or office, unless the nature of the duties requires such knowledge (Section 46 of the Charter).

The Charter also provides that the francization program is intended to generalize the use of French at all levels of the business through (1) the knowledge of the official language on the part of management, the members of the professional orders and the other members of the personnel; (2) an increase, where necessary, at all levels of the business, including the Board of directors, in the number of persons having a good knowledge of the French language so as to generalize its use; (3) the use of French as the language of work and as the language of internal communications; (4) the use of French in the working documents of the business, especially in manuals and catalogues; (5) the use of French in communications with the civil administration, clients, suppliers and the public amongst others; (6) the use of French terminology; (7) the use of French in public signs and posters and commercial advertising; (8) appropriate French policies for hiring, promotion and transfer; (9) the use of French in information technologies (Section 141).

Companies which employ 50 persons or more for a period of six months must register with the Office and shall perform an analysis of their linguistic situation. On the basis of this analysis, the Office will either issue a francization certificate or order the adoption a francization program in order to generalize the use of French at all levels of the company. In the latter case, the company shall implement the francization program within a specific delay in order to obtain a francization certificate (Sections 139, 140 and 145 of the Charter).

Once they obtain a francization certificate, companies must ensure that the use of French remains generalized at all levels and must complete a triennial report on the progression of the use of French in their activities (Section 146 of the Charter).

Businesses employing 100 or more persons must also form a francization committee composed of six or more persons (Section 136 of the Charter).

Failure to comply with requirements and obligations under the Charter is an offense and can result in criminal penalties, including a fine of up to $20,000 in the case of a legal person, which is doubled for subsequent offences (Section 205 of the Charter).

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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