Canada: Québec Adopts Bill 96: How The Legislation Directly Impacts Your Business Operations And Other Key Considerations

This article was originally published on May 26, 2022 and has been updated to reflect the Bill received assent on June 1, 2022.

On May 24, 2022, the Québec government adopted Bill 96, An Act respecting French, the official and common language of Québec (the "Bill"). While most amendments will come into force at a later date, a number of significant amendments came into force immediately upon assent, which the Bill received on June 1, 2022.

By way of background, the Bill aims "to affirm that the only official language of Québec is French". To that end, it drastically amends the province's Charter of the French language (the "Charter") by significantly restricting the use of English and imposing burdensome obligations regarding the use of French in numerous activity sectors. As a result, most businesses operating in Québec will likely have to adjust their practices in order to ensure compliance.

The most significant consequences of Bill 96 on businesses in Québec include the following:

1. Businesses will have to revise their public signage, posters & commercial advertising

Currently, the Charter allows "recognized" (i.e. registered or common law) trademarks to appear on public signage, posters and commercial advertising in a language other than French, provided no French version of the mark has been registered in Canada. Where a non-French trademark is displayed "outside an immovable" (as defined by the Charter, for example, a building), it must be accompanied by a "sufficient presence of French" - i.e. a slogan, generic term, or other descriptor of the products or services offered.

Bill 96 provides for two amendments to this rule¹.

• Firstly, it restricts the "recognized" trademark exemption to "registered" trademarks only (i.e. trademarks registered under the federal Trademarks Act). As a result, common law marks will no longer be exempt and will therefore need to be translated to French on public signage, posters and commercial advertising.
• Secondly, in the context of outdoor signage, the Bill replaces the "sufficient presence of French" threshold with a requirement that the French text accompanying a non-French trademark be "markedly predominant" as compared to the mark. Although a regulation defining the scope of what is meant by "markedly predominant" already exists under the Charter, the government has promised an additional regulation intended to define the term in this specific context. With that being said, we could reasonably expect the new regulation to require a greater prominence of the French text (i.e. measurably larger font size, increased visibility, and greater area coverage as compared to the non-French registered trademark).

To ensure compliance, businesses will want to audit their current trademark use in the province and take inventory of all non-French trademarks appearing on their public signage, posters and commercial advertising. Any common law marks will have to be either registered, or translated to French to ensure compliance. In addition, any outdoor signage that includes non-French trademarks and accompanying French text will have to be redesigned in order to comply with the new "markedly predominant" requirement.

This requirement comes into force on June 1, 2025 (three years after Bill 96 received assent).

2. Businesses will have to reassess the use of non-French trademarks on product packaging and labelling

While non-French "recognized" trademarks are currently exempt from translation requirements on product packaging and labelling, as we previously reported, the government has provided for two amendments to this rule².

• Firstly, as will be the case with public signage, posters and commercial advertising, the "recognized" trademark exception on product packaging and labelling will be restricted to "registered" trademarks; common law marks will no longer benefit from the exemption and will be subject to translation requirements;
• Secondly, if a "registered" mark exempt from translation requirements includes a non-French generic term or description of the product, this generic term or description will have to appear in French elsewhere on the product or a support permanently affixed thereto. No details have yet been provided with regards to what will be deemed a generic term or description of the product for the purposes of the above. Rather, the government has vowed to adopt a regulation defining the scope the terms a generic term or description of the product for the purposes of this requirement.

To ensure compliance, businesses will want to audit their current trademark use in the province and take inventory of all non-French trademarks appearing on product packaging and labelling. Any common law marks will have to be either registered, or translated to French to ensure compliance. In addition, registered marks will have to be assessed for any non-French descriptive or generic copy as any such copy will have to be added, in French, elsewhere on the product or a support permanently affixed thereto.

This requirement comes into force on June 1, 2025 (three years after Bill 96 received assent).

3. Businesses that supply products or services to the Québec government will be subject to new requirements

Bill 96 aims to reinforce French as the provincial government's exclusive language, namely by imposing a duty on the civil administration "to use French in an exemplary manner". To this end, new requirements applicable to businesses that supply products or services the government or its agencies will be imposed.

With regards to products purchased by the government, Bill 96 provides that every agency of the civil administration shall see that every inscription on a product that it obtains under a supply contract complies with the Charter's product packaging and labelling requirements³.

With regards to services, Bill 96 requires that where an agency of the civil administration obtains services from an enterprise, said services must be in French. If, however, the services are intended for the public, they will have to comply with the Charter provisions applicable to agencies who provide services to the public directly⁴. In other words, where the government itself would be permitted to provide services to the public in a language other than French, the business offering said services will also be permitted to offer them in a language other than French.

With that being said, the Bill does provide an exception for situations where it would be impossible for the agency to obtain the product sought or another equivalent product in due time, as well as in cases where the services (other than those intended for the public) cannot be rendered in French⁵.

These requirements come into force on June 1, 2023 (one year after Bill 96 received assent).

4. Businesses will have to contract and interact with the government in French⁶

In keeping with the theme above, Bill 96 also aims to reinforce French as the Québec government's language of communication, and includes several provisions to this effect.

Notably, it establishes that (subject to very limited exceptions) contracts entered into with the civil administration shall be "exclusively" in French⁷. A contract that contravenes this requirement may be rendered null and void, regardless of whether damages are incurred as a result of the violation⁸.

The Bill also provides that written documents that a business submits to an agency of the civil administration in order to obtain a permit or other authorization of the same nature, a subsidy or other form of financial assistance must be "exclusively" in French. The same will be true of written documents that a legal person or enterprise "receiving such a form of assistance or holding such an authorization is required to send to such an agency because of that assistance or authorization".

Businesses applying for permits, funding, and many other government authorizations will therefore be prohibited from providing English documentation to provincial authorities in the context of these applications. While no guidance on the scope of this obligation is available at this time, it would be reasonable to consider that it will extend to the filing of publicity contests with the Régie des alcools, des courses, et des jeux.

Bill 96 does, however, state that the government may, by regulation, establish exceptions to the above. No such regulation has yet been adopted.

These requirements come into force on June 1, 2023 (one year after Bill 96 received assent).

5. Businesses will have to comply with more stringent French-language customer service requirements

The Charter currently states that "[c]onsumers of goods and services have a right to be informed and served in French"⁹. It does not currently contain an analogous requirement applicable to non-consumers. In other words, the Charter does not explicitly provide that businesses providing services to other businesses - as opposed to consumers - must serve their business clients in French.

The Charter does currently state, in one of its introductory provisions, that "every person" has a right to have enterprises communicate with them in French; this is generally interpreted as requiring that Québec businesses serve their clients (whether consumer or business clients) in French.

Bill 96 aims to remedy this ambiguity by inserting a provision explicitly requiring that "[a]n enterprise that offers goods or services to a public other than consumers must inform and serve it in French"¹⁰.

This requirement took effect on June 1, 2022 (immediately upon assent of Bill 96).

To ensure compliance, businesses will have to review their current business-to-business practices in order to ensure that their business customers in Québec are served and informed in French- namely, in the areas of customer service and support (whether at brick and mortar locations, via their customer support telephone lines, online, etc.), commercial publications, websites, etc.

It is also worth noting that Bill 96 provides that both businesses and consumers who feel that their right to be served in French has been violated will be permitted to seek an injunction requiring that their right be respected, except in the case of businesses with fewer than five employees¹¹.

6. Businesses will have to use French in Court documents

Any pleading filed by a legal person in a Québec court must be in French, or accompanied by a French translation certified by a certified translator (prepared at the cost of the legal person). No exception is provided, even if all parties to a matter wish to proceed in English¹². In its commentary on this provision, the government states that the "certified translator" to which this provision refers must be a member of the Ordre professionnel des traducteurs, terminologues et interprètes agréés du Québec (the Québec professional order governing translators). No information is provided regarding whether a translation prepared by a translator certified in a jurisdiction other than Québec will suffice to satisfy this requirement.

This requirement will come into force on September 1, 2022 (three months after Bill 96 received assent).

Businesses based outside of Québec involved in proceedings before Québec courts will therefore have to ensure that written submissions filed in Québec Court are in French, or are accompanied by compliant translations. Businesses would be well-served to retain Québec-based counsel to assist with the preparation and review of any French language documentation or translation before these are filed into the court record.

Bill 96 does not address the language in which trials or other oral court proceedings will occur; however, it expressly states that judges need not, in most cases, be proficient in any language other than French; accordingly, individuals who do not have the language skills to hear pleadings or witnesses in English may be appointed judges. It remains to be seen how, in practice, this will impact the rights of parties wishing to conduct a trial or examine witnesses in English¹³.

With regards to Court rulings, Bill 96 provides that any English-language judgment that "terminates a proceeding or is of public interest" must be "immediately and without delay" accompanied by a French translation. In practice, this additional requirement may cause additional delays in the release of court judgments, and may have an impact especially in the case of injunctive or other time-sensitive matters¹⁴.

This will come into force on December 1, 2022 (six months after Bill 96 received assent).

7. Businesses will have to use much more French in employment-related documents & will have more difficulty requiring proficiency in English as a language of employment

Bill 96 drastically amends the requirements of a business vis-à-vis its current and potential employees. While these new requirements will be addressed in detail by Gowling WLG's Labour and Employment Law Practice Group, the key impacts on employers includes the following:

• The number of employment-related documents that will have to be in French will increase, and will include, notably: offers of employment, transfer, or promotion; individual employment agreements (subject to some exceptions); and any communications, including those after termination of the employment relationship, with all or part of the staff, an individual worker, or an association of workers representing all or part of the staff.
• Any employer who posts a job offer in a language other than French must simultaneously post it in French, by means of the same medium and reaching a target audience of a similar size.
• An employer will not be permitted to require a person to have knowledge (or a specific level of knowledge) of a language other than French to keep or to obtain a position, in particular through recruitment, hiring, transfer or promotion, unless the role requires this knowledge and the employer took all reasonable means to avoid imposing such a requirement.

These requirements came into force on June 1, 2022 (immediately upon assent of Bill 96).

Businesses in Québec must therefore immediately review their hiring and internal communication policies and make adjustments as required.

8. Businesses with 25 employees or more will now be subject to francisation requirements, and francisation committees will be subject to additional requirements

Currently, businesses employing 50 or more people in Québec during a six month period must comply with the Charter's requirements governing francisation of enterprises. Under Bill 96, this requirement is extended to businesses with 25 or more employees in the province.

This requirement comes into force three years after the Bill 96 received assent.

Bill 96 also modifies the timelines for various steps of the francisation process - which modifications will apply to all businesses subject to francisation requirements.

In addition, Bill 96 imposes additional requirements on the francisation committees of businesses operating in the province. Notably, the Bill provides that:

• A business must consult the OQLF before determining how committee members will be elected;
• Minutes must be taken at each committee meeting, and subsequently circulated to all committee members; and
• The list of committee members must be circulated to the employees of the business.

9. Businesses that enter into adhesion contracts will have to modify their choice of language provisions

The Charter currently requires that "[c]ontracts pre-determined by one party, contracts containing printed standard clauses, and the related documents" be in French¹⁵. It does not explicitly state that the parties thereto may elect to draw up these documents in another language.

Bill 96 modifies the above, providing instead that "contracts of adhesion and related documents" must be in French. Furthermore, the parties to such a contract may only be bound by a non-French version if, after being provided with a French version of the agreement, it is their express wish to do so. In such cases, documents related to the contract may be exclusively in such other language¹⁶. The Bill does however provide for limited exceptions to these new requirements.

Consequently, having the parties simply sign a non-French version of an adhesion contract containing a language selection clause will no longer suffice. Instead and for such a choice of language clause to be valid, customers choosing to enter into an English version of such a contract must be presented with a French version thereof. As such, sufficient record keeping systems will be essential to ensure businesses retain records of having communicated a French version of the agreement for each consumer who ultimately elects to proceed in English. The Bill does however provide for some exceptions to this rule.

A contract drawn up in violation of the above rule will be null¹⁷.

These requirements come into force on June 1, 2023 (one year after Bill 96 received assent).

10. Security will have to be registered in French

In Québec, various property rights must be registered with provincial authorities in order to be enforceable against third parties. With regards to movable property, rights are registered in the Register of Personal and Movable Real Rights. Such security rights include, for example, those of the party financing or leasing an automobile, those of the lessor under certain types of long-term leases, and other hypothec-type agreements. Rights on immovable property are registered in the Land register.

Bill 96 provides that applications for registration of rights on movable and immovable property must be in French. Documents accompanying these applications must be in French, or accompanied by a translation authenticated in Québec.

This requirement will come into force on September 1, 2022 (three months Bill 96 received assent).

11. The OQLF will have much broader powers

The Office québécois de la langue française (the "OQLF"), the regulatory body tasked with applying and enforcing the Charter, will see its powers increase significantly under Bill 96.

The Charter currently affords the OQLF the right to conduct investigations to verify Charter compliance. Under Bill 96, however, the OQLF's powers during an investigation will be significantly expanded. Notably, the OQLF will be permitted to¹⁸:

• Enter, at any reasonable time, any place (other than a dwelling house) where an activity governed by the Charter is conducted or any other place where records or other property to which the Charter applies may be held;
• Take photographs of the place where the inspection is being conducted and the goods located thereon;
• Require that any person present at the time of the inspection who has access to any computer, material or other equipment on the premises to use it to access data relevant to the administration of the Charter contained in an electronic device, computer system or other medium or to verify, examine, process, copy or print such data; and
• Require any information relating to the administration of the Charter or its regulations, including that any document relating thereto, be communicated to it for examination or reproduction purposes - which includes requiring that any person who has custody, possession or control of such a document provide same to the person conducting an inspection and facilitate the inspector's examination thereof.

In addition, the OQLF will be permitted to apply to a judge of the Superior Court of Québec for an injunction relating to the Charter¹⁹.

These powers took effect on June 1, 2022 (immediately upon assent of Bill 96).

12. Noncompliant businesses will face much stricter penalties

Bill 96 drastically increases the fines for non-compliance. The Charter currently provides for fines of $1,500 to $20,000 in the case of a legal person, and $600 to $6,000 in the case of a natural person. Under Bill 96, these will be increased to $3,000 to $30,000 for legal persons and to $700 to $7,000 for natural persons. Moreover, fines will be doubled for second offences and tripled for subsequent offences²⁰.

For the purposes of calculating these fines, if an offence continues for more than one day, each day shall constitute a separate offence²¹. Businesses that are noncompliant for several days at a time could therefore quickly accumulate significant fines.

In addition to fines, noncompliance with Charter requirements could result in the suspension or revocation of a permit issued by the provincial government²². A court will also be permitted to order the removal or destruction, within eight days, of any poster, sign, advertisement, billboard or illuminated sign that contravenes the Charter (s. 114 Bill 96, s. 184 Charter).

In light of the significant impact on businesses operating in Québec, we recommend consulting your Gowling WLG Advertising, Marketing and Product Regulatory counsel to discuss the concrete steps to be taken to mitigate risks and ensure compliance.

Gowling WLG is monitoring the developments of Bill 96 (including any potential constitutional or other legal challenges) and will provide further updates as these become available.

Footnotes

1. Section 47 of Bill 96, introducing section 58.1 of the Charter.

2. Section 42.1 of Bill 96, introducing section 51.1 of the Charter. Note that the wording of this provision is not yet available in English.

3. Section 14 of Bill 96, introducing section 21.10 of the Charter.

4. Section 14 of Bill 96, introducing section 21.11 of the Charter.

5. Section 14 of Bill 96, introducing section 21.12 of the Charter.

6. Section 14 of Bill 96, introducing section 21.9 of the Charter.

7. Section 13 of Bill 96, amending section 21 of the Charter.

8. Section 114 of Bill 96, introducing section 204.17 of the Charter.

9. Section 5 of the Charter.

10. Section 41 of Bill 96, introducing section 50.2 of the Charter.

11. Section 114 of Bill 96, introducing. 204.16 of the Charter.

12. Section 5 of Bill 96, amending section 9 of the Charter.

13. Section 5 of Bill 96, amending section 12 of the Charter.

14. Section 5 of Bill 96, amending section 10 of the Charter.

15. Section 55 of the Charter.

16. Section 44 of Bill 96, amending section 55 of the Charter.

17. Section 114 of Bill 96, introducing section 204.20 of the Charter.

18. Sections 111 and 112 of Bill 96, amending sections 174 and 175 of the Charter.

19. Section 112 of Bill 96, amending section 183 of the Charter.

20. Section 114 of Bill 96, amending sections 205 and 206 of the Charter.

21. Section 114 of Bill 96, amending section 208 of the Charter.

22. Section 114 of Bill 96, introducing section 204.27 of the Charter.

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