This post is a follow-up to two initiatives taken by our Employment and Labour Group regarding Bill 961, as well as the post published by our firm regarding the business impacts of Bill 96, which is available here.
On May 24, 2022, the National Assembly of Québec passed Bill 96, An Act respecting French, the official and common language of Québec ("Bill 96"), which is amending the Charter of the French Language (the "Charter") by introducing new measures aimed at ensuring the predominance of French in the workplace. Please note that most of the amendments presented in this post came into force on June 1, 2022, the date Bill 96 received Royal Assent. However, some will come into force at a later date.
An overview of the key changes is presented below. We will also examine the new powers of the Office Québécois de la langue française (the "Office") with respect to investigation and inspection, as well as the new applicable fines in case of an offence under the Charter.
Communications to Employees
Bill 96 clarifies the types of French documentation that an employer is required to provide to its employees.
The Charter already states that an employer must provide communications to its employees in French, as well as offers of employment or promotion. However, Bill 96 explicitly extends this obligation to the following elements2:
- Individual employment contracts. On this point, Bill 96 provides that the contract may, however, be drafted in another language, if the parties expressly consent, unless it is an adhesion contract. In that case, in order for the contract to have a binding effect, the parties will have to examine the French version of the contract beforehand and expressly consent to be bound by the non-French version of the contract3.
- Offers of transfer;
- Written communications to the staff or an employee, including those following the termination of the employment relationship. Please note that the employer may communicate in writing with an employee in a language other than French if the employee made a specific request to that effect;
- Employment application forms;
- Documents relating to conditions of employment; and
- Training documents created for the employees.
Furthermore, it should be noted that application forms, documents relating to working conditions and training documents shall also be available in conditions at least as favorable as any other version in another language.
These new requirements came into force on June 1, 20224 . However, all individual employment contracts entered into before that date which are drafted in a language other than French will have to be translated in a timely manner, provided that the concerned employees request the translation from their employer by June 1, 20235 . Employers will not be required to translate fixed-term employment contracts that end no later than June 1, 20246 . In addition, employers will have until June 1, 2023 to make available a French version of application forms, documents relating to working conditions and training documents for employees to the extent that these documents were not available in French prior to the coming into force of Bill 967 .
Bill 96 also adds new requirements regarding the dissemination of job offers. From now on, when a job offer will be posted by an employer in a language other than French for the purpose of filling a position (including by recruitment, hiring, transfer or promotion), the employer will have to ensure that both the French and English versions of the offer be disseminated simultaneously and by the same means of transmission and reaching a targeted audience of comparable size8.
Furthermore, if an employer wishes to require knowledge or a specific level of knowledge of a language other than French to be eligible for a position, the employer must indicate the reasons justifying this requirement at the time of the dissemination of the job offer for the position9.
These new requirements came into force on June 1, 202210.
Specific Knowledge of a Language other than French
The Charter already provides that an employer cannot require specific knowledge of a language other than French, unless such knowledge is necessary for the performance of the duties of the position. However, Bill 96 imposes an additional burden on the employer by requiring that the employer must have taken all reasonable steps beforehand to avoid imposing such a requirement11.
In this regard, Bill 96 provides that an employer will be deemed to not have taken all reasonable steps if it has not met one or more of the following three conditions before imposing such a requirement12:
- Conduct an assessment to determine the language needs associated with the duties to be performed;
- Ensure that the knowledge of another language already required from other employees was insufficient for the performance of this employee's duties; and
- Restrict 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 French13.
Bill 96 indicates, however, that an employer will not have to conduct an unreasonable reorganization of its business to meet these conditions14.
Should an employer not be able to make this demonstration, the requirement to have knowledge, or a specific level of knowledge, of a language other than French will be considered a prohibited practice under the Charter, which can generate a claim in damages15.
These new requirements came into force on June 1, 202216 .
Prohibited Sanctions and Other Retaliatory Measures
Bill 96 prohibits an employer from imposing sanctions or reprisals against an employee, in particular, for any of the following reasons17:
- The employee has demanded that the right relating to language of work be respected;
- To deter the employee from exercising a right relating to language of work;
- The employee does not have knowledge or a specific level of knowledge of a language other than French, where the performance of his/her duties does not require it;
- The employee has taken part in meetings of, or carried out tasks for, a francization committee or a subcommittee of that committee;
- The employee has, in good faith, communicated information to the Office or cooperated in an investigation following a breach of the Charter.
Bill 96 also establishes a new process for complaints against employers under the authority of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (the "CNESST"). Any persons who believe that they have been the victim of a prohibited practice will be able to file a complaint with the CNESST within 45 days of the event18.
The CNESST may then, with the agreement of the parties, appoint a person who will endeavour to settle the complaint19. If no settlement is reached, the complaint will be referred to the Tribunal administrative du travail20. It is worth noting that the CNESST may represent an employee that is not a member of an association of workers21.
These amendments came into force on June 1, 202222.
Workplace Free of Discrimination or Harassment
Bill 96 explicitly provides for the right of employees to work in an environment free of discrimination or harassment with respect to the use of French. In addition, employers will be required to take reasonable steps to prevent such conduct and, if such conduct is brought to their attention, to make it stop23.
Bill 96 also provides for a new complaint process that will allow employees who believe they have been victims of such conduct to file a complaint with the CNESST within two (2) years of the date of the last incidence of the offending behaviour24.
These amendments came into force on June 1, 202225.
Francization of Companies Employing 25 or More Persons
Bill 96 provides that companies employing between 25 to 49 persons in Québec will now be subject to the Charter francization process and will therefore have to formally register with the Office26.
However, these companies will benefit from a three (3) year adjustment period, namely until June 1, 2025, to comply with these new requirements27 . Previously, only companies with 50 Québec employees or more were subject to the francization process.
(i) Analysis of the employer's language situation
Bill 96 shortens the period within which a company must submit an analysis of its language situation to the Office. This period will be reduced from six (6) months to three (3) months following the date of issuance of the registration certificate28.
This amendment came into force on June 1, 202229.
(ii) Francization committee
Bill 96 provides that all companies subject to the Charter and registered with the Office will have to form a francization committee. However, companies employing fewer than 100 persons in Québec will not be required to form such a committee unless the Office orders them to do so, after having determined that the use of French is not generalized at all levels of their company30.
Thus, as it was the case previously, companies with fewer than 100 Québec employees will not be automatically required to form a francization committee. However, Bill 96 broadens the Office's authority to order that a francization committee be formed in companies employing 25 to 49 persons, whereas previously it could only do so for companies employing 50 to 99 persons.
This amendment came into force on June 1, 202231.
(iii) Francization committee meetings
The francization committee will continue to meet at least once every six (6) months. However, Bill 96 requires the committee to ensure that minutes are taken at each meeting, which must then be transmitted to the company's management and to the Office32.
This amendment came into force on June 1, 202233.
(iv) Publishing the list of the francization committee members
Besides providing a list of the francization committee members to the Office, Bill 96 states that this list will have to be circulated among the company's staff, through signs and posters or by any other means deemed appropriate by the companies34.
This amendment came into force on June 1, 202235.
(v) Obligations of the francization committee
Bill 96 also clarifies the role and responsibilities of the francization committee by listing the various obligations it must meet36.
These include the obligation to:
- Designate a representative to the Office;
- Ensure that the analysis of the linguistic situation is carried out, including the drafting of a report setting it out;
- See to the development of the francization program that companies must adopt, supervise its implementation and, where necessary, see to the preparation of a report on it;
- Ensure that the use of French remains generalized within the company and see to the drafting of the three-year report; and
- At the request of the company's management, give its opinion on the employer's practice of requiring a person to have knowledge or a specific level of knowledge of a language other than French in order to keep or obtain a position on the steps taken to avoid imposing such a requirement.
This amendment came into force on June 1, 202237.
(vi) Developing a francization program
Bill 96 shortens the period within which a company must submit a francization program to the Office. Previously, when the Office considered that the use of French was not generalized at all levels of a company, the Office was notifying the company that it had to adopt a francization program. The time limit for completing and transmitting the francization program to the Office will be reduced from six (6) to three (3) months following receipt of the notice38.
Furthermore, previously, a company that was required to adopt a francization program within its company had to submit reports to the Office on the implementation of its program every 24 months, in the case of a company that employed fewer than 100 persons and every 12 months in the case of a company that employed 100 or more persons. Bill 96 standardizes the frequency of reporting to 12 months, regardless of the number of employees of the company39.
Finally, Bill 96 also stipulates that the company must circulate its francization program and report on its implementation to its employees40.
These amendments came into force on June 1, 202241.
(vii) Permanence of the francization
Previously, when a company was holding a francization certificate, it had to submit a report to the Office every three (3) years on the progress of the use of French within the company.
In this regard, Bill 96 provides that, if the Office considers, after examining the three-year report, that the use of French is no longer generalized at all levels of the company, it may order the company to develop and implement an action plan to remedy the situation. The Office is required to notify the company in writing and give it at least 15 days to submit its observations. The company will then have two (2) months to submit its action plan to the Office42.
This amendment came into force on June 1, 202243.
Other Significant Modifications
(i) Extended investigative powers
The Charter already grants the Office the powers and immunity of commissioners appointed under the Act respecting Public Inquiry Commissions (except the power to order imprisonment). The Charter also provides specific powers to the person making an inspection to ensure its enforcement (including the power to enter at any place open to the public and to examine any product or document and make copies).
Bill 96 expands the scope of the inspection powers by allowing this person to:
- Enter at any reasonable hour, at any place, other than a dwelling, where an activity governed by the Charter is carried on, or any other place where documents or other property to which the Charter applies may be held;
- Take photographs of the place and the property therein;
- Cause any person present who has access to any computer, material or other equipment on the premises to use it to access data contained in any electronic device, computer system or other media or to verify, examine, process, copy or print such data; and
- Require any information relating to the application of the Charter or its regulations and the communication, for examination or reproduction, of any document relating thereto44.
This amendment came into force on June 1, 202245.
(ii) Increased fines
Natural and legal persons
The penal provisions in case of offences to the Charter have been revised upwards, for both natural and legal persons46:
|Natural persons||$600 to $6,000||$700 to $7,000|
|Legal persons||$1,500 to $20,000||$3,000 to $30,000|
New provision for directors and officers
Bill 96 also introduces a specific provision regarding fines that can be imposed to directors and officers of a corporation. More specifically, if they commit an offence under the Charter, directors and officers will be subject to a fine of $1,400 to $14,00047. In addition, where a legal person or an agent, mandatary or employee of a legal person commits an offence under the Charter, Bill 96 provides that the director of the corporation will be presumed to have committed the offence unless such director establishes that he or she exercised due diligence by taking all necessary precautions to prevent the offence48.
Disclosure of false information to the Office and reprisals for reporting or cooperating to an investigation
It should also be noted that (i) wilfully disclosing false or misleading information to the Office or (ii) retaliating or threatening to retaliate against a person who, in good faith, disclose information to the Office or cooperates in one of its investigations is subject, in the case of a natural person, to a fine of $2,000 to $20,000, or in any other cases, to a fine of $10,000 to $250,00049.
Second and subsequent offences
The amount of the fine may be doubled for a second offence and tripled for any additional subsequent offence50. In addition, if the offence continues for more than one day, each day will be considered as a separate offence, which will have a multiplying effect on the amount of the fine51.
These amendments came into force on June 1, 202252.
The amendments brought by Bill 96 to the Charter will surely result in a greater burden on companies doing business in Québec, particularly those with 25 to 49 Québec employees, which will now be subject to the francization requirements of the Charter.
As next steps, in order to comply with the new requirements set forth in the Charter, employers should:
- Review their hiring process and job postings to ensure that they meet the new requirements of Bill 96 regarding the need to know a language other than French;
- Ensure that the French and English versions of their job offers are disseminated simultaneously and through the same means of transmission and reach a targeted audience of comparable size;
- Ensure that they communicate with their employees in French and provide them with all documentation related to their employment in French;
- Translate their employment contracts into French (if they are adhesion contracts) and insert a clause indicating that the employee has received the French version of the contract and wishes to be bound by the English version of the contract; and
- Respect the new requirements of the francization process, including the relevant deadlines.
2. See art. 29 of Bill 96 which amends art. 41 of the Charter.
3. See art. 29 of Bill 96.
4. See art. 201 of Bill 96.
5. See art. 171 of Bill 96.
6. See art. 170 of Bill 96.
7. See art. 171 of Bill 96.
8. See art. 32 of Bill 96 which amends art. 42 of the Charter.
9. See art. 35 of Bill 96 which amends art. 46 of the Charter (please note that this amendment was made during the detailed study in committee).
10. See art. 201 of Bill 96.
11. See art. 201 of Bill 96.
12. See art. 35 of Bill 96 which amends art. 46 of the Charter.
13. See arts. 35-36 of Bill 96 which amends art. 46 and add art 46.1 to the Charter.
14. See art. 46.1 al 2 of Bill 96 (please note that al 2 was added during the detailed study in committee).
15. See art. 33 of Bill 96 which amends art. 45 of the Charter.
16. See art. 201 of Bill 96.
17. See art. 33 of Bill 96 which amends art. 45 of the Charter.
18. See art. 37 of Bill 96 which amends art. 47 of the Charter.
19. See art. 37 of Bill 96 which amends art. 47 of the Charter.
20. See art. 37 of Bill 96 which amends art. 47of the Charter.
21. See art. 37 of Bill 96 which amends art. 47 of the Charter.
22. See art. 201 of Bill 96.
23. See art. 34 of Bill 96 which adds art. 45.1 to the Charter.
24. See art. 37 of Bill 96 which amends art. 47 of the Charter.
25. See art. 201 of Bill 96.
26. See art. 81 of Bill 96 which amends art. 139 of the Charter.
27. See arts. 184 and 201 of Bill 96.
28. See art. 81 of Bill 96 which amends art. 139 of the Charter.
29. See art. 201 of Bill 96.
30. See art. 76 of Bill 96 which amends art. 136 of the Charter.
31. See art. 201 of Bill 96.
32. See art. 80 of Bill 96 which adds art. 138.3 to the Charter.
33. See art. 201 of Bill 96.
34. See art. 79 of Bill 96 which amends art. 138 of the Charter.
35. See art. 201 of Bill 96.
36. See art. 80 of Bill 96 which adds art. 138.1 to the Charter.
37. See art. 201 of Bill 96.
38. See art. 83 of Bill 96 which amends art. 140 of the Charter.
39. See art. 85 of Bill 96 which amends art. 143 of the Charter.
40. See art. 85 of Bill 96 which amends art. 143 of the Charter.
41. See art. 201 of Bill 96.
42. See art. 88 of Bill 96 which adds arts. 146.1 and 146.2 to the Charter.
43. See art. 201 of Bill 96.
44. See art. 111 of Bill 96 which amends art. 174 of the Charter.
45. See art. 201 of Bill 96.
46. See art. 114 of Bill 96 which replace art. 205 of the Charter.
47. See art. 114 of Bill 96 which replace art. 207 of the Charter.
48. See art. 115 of Bill 96 which adds art. 208.4.2 to the Charter.
49. See art. 114 of Bill 96 which adds art. 205.1 to the Charter (please note that this subparagraph was added during the detailed study in committee).
50. See art. 114 of Bill 96 which replaces art. 206 of the Charter.
51. See art. 114 of Bill 96 which replaces art. 208 of the charter.
52. See art. 201 of Bill 96.
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