On May 13, Bill 96, An Act respecting French, the official and common language of Quebec (hereinafter "Bill 96") was tabled to the National Assembly. Overall, Bill 96 clarifies and reinforces the previous rules and their application by the Office québécois de la langue française ("OQLF"). It also adds a few new concepts. We summarized below the main elements impacting employers.
In a nutshell, Bill 96 is based on the following goals:
- Ensuring that the workers' right to carry on their activities in French is respected;
- The right to a work environment free of discrimination or harassment related to the use of French or to claiming a right arising from the Charter of the French language;
- Taking all reasonable means to avoid requiring a person to have knowledge of a language other than French to obtain or keep a position;
- Strengthening the use of French as the language of commerce and business, in particular as it concerns signs and posters and the drafting of certain documents, such as contracts relating to certain sales of immovable property;
- Extending francization to enterprises employing 25 or more persons (as opposed to the previous 50 or more employees rule);
- Introducing provisions relating to the establishment of French language learning services within enterprises.
Employer's Obligations in Hiring: Bill 96 provides a framework for the requirement of knowledge of a language other than French in hiring. The obligation of employers to respect the workers' right to carry on their activities in French is not modified by the Bill. However, Bill 96 provides for the addition of specifications to this general obligation by proposing that all offers of employment, transfers or promotions be made in French, and all employment contracts, written communications and documentation related to employment be drafted in French. Under the current regime, only official communications and offers of employment or promotion must be in French.
Bill 96 also provides that an employer advertising a job offer in a language other than French must ensure that such non-French job offer is advertised simultaneously with the French offer, using transmission means of the same nature, and that such job offer reaches a target public of a proportionally comparable size.
Employers' Obligations Regarding Discrimination and Harassment : Employees will have the right to a work environment free from discrimination or harassment associated with their lack of capabilities or limitations in language(s) other than French, their choices to express themselves in French, or their demands associated with the respect of a right arising from the Charter. Employers will only be permitted to require that an employee have a certain knowledge of a language other than French if such knowledge is required for the performance of the job. Even then, the employer must have taken all reasonable steps to avoid imposing such a requirement.
Bill 96 does not modify the rules providing that an employer be prohibited from dismissing, laying off, demoting, displacing, taking reprisals against or imposing any other penalty on a staff member for the sole reason that the member is exclusively French-speaking or does not have sufficient knowledge of a given language other than the official language. However, it adds several reasons that cannot be used to justify such measures by an employer, such as : the fact that a staff member has demanded that a right arising from the Charter of the French Language be respected; to deter a staff member from exercising such a right; or because a staff member does not have knowledge or a specific level of knowledge of a language other than the official language, where the performance of the duty does not require it.
If an employer fails to comply with its obligations regarding the use of French, any employee may file a complaint with the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST).
Application of the Charter of the French Language to Enterprises with 25 to 49 Employees and Enterprises Under Federal Jurisdiction : Businesses with 25 to 49 employees and businesses under federal jurisdiction in Quebec will be subject to francization rules and will thus have to generalize the use of the French language throughout the workplace. These businesses will have a three-year period to obtain a francization certificate and will also be required to provide French services and information and may be investigated by the OQLF in the event of a complaint. Currently, the francization requirements apply only to enterprises with 50 employees or more.
Francization Services for Businesses With 5 or Fewer Employees : Under Bill 96, the OQLF may, on its own initiative, require businesses employing between 25 and 100 people to form francization committees.
An administrative unit called "Francisation Québec" will be established, and will be responsible for providing French language learning services to persons who are unable to communicate in French and who are employed by a business with fewer than five employees.
Conducting Business in Quebec: Enterprises will have heightened requirements with respect to their communications in French with consumers as well as non-consumers and the Quebec government. For more information about how Bill 96 will affect your business operations in the province, please read our blog post here.
Bill 96 provides that a consumer may complain if a merchant refuses or fails to serve them in French.
Bill 96 proposes drastic amendments with regards to non-compliance of the requirements under the Charter. Currently, the Charter only provides for administrative fines and the potential suspension or withdrawal of the francization certificate, if applicable.
- The amendments would allow people who feel their language rights are violated under the Charter to bring a civil right of action against the offender.
- Repeated contraventions of the Charter may result in suspension or revocation of government permits or authorizations.
- The fines for non-compliance with the Charter will increase to $3,000 to $30,000 for businesses. It provides for the doubling of fines for a second offence and tripling for a subsequent offence, and considers each day an offence persists as a separate offence.
Among all the changes proposed in this lengthy Bill, it should be noted that the government plans to use the "notwithstanding clause" as soon as the legislation is passed in order to shelter it from certain constitutional challenges before the courts.
As the process of adopting the Bill is still in its early stages, there will certainly be many debates and consultations in the coming months. This Bill may be modified over time and may be adopted in a different form than currently presented. McCarthy Tétrault is closely monitoring the progression of the Bill and will provide further updates.
For more information on Bill 96, please do not hesitate to contact a member of our National Labour & Employment Group.
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