On May 13, 2021, the government of Québec introduced Bill
96 with an intent to "strengthen" the provisions in the
Charter of the French
language (the French Charter). We do not know whether Bill
96 will be adopted and, if so, whether it will be passed in its
current form. An amendment to the Regulation respecting
the language of commerce and business (the Regulation) is
also expected. In the meantime, the current texts of the French
Charter and Regulation continue to apply.
This article provides an overview of some of the changes
proposed by Bill 96, notably those related to the language of
commerce and business, the handling of complaints by the Office
québécois de la langue française (OQLF)
and its powers, and the sanctions for violating the French Charter.
Though Bill 96 may significantly influence the French language laws
in Québec, we will only be able to evaluate the true impact
of this reform when the Bill and the anticipated changes to the
Regulation are adopted in their final form.
Language of commerce and business
Contracts of adhesion and contracts containing standard clauses1
Bill 96 provides for civil penalties in case of non-compliance
with the language of contracts, including the cancellation of the
contract or the reduction of the obligation of the person who
suffers harm2, as a result of the
non-compliance with this new provision.
Also, in any contract of adhesion or consumer contract, it is
necessary for the adherent or the consumer to have expressly
requested for the contract to be in a language other than French.
Otherwise, any clause in a language other than French is deemed
incomprehensible, which may cause the clause to be void and of no
effect.3
The provisions relating to this requirement would come into
effect on the day Bill 96 receives approval.4
Public signage and commercial advertising5
Currently, the "recognized trademark" exception
allows, among other things, the display of a trademark in a
language other than French so long as the trademark is registered
in Canada or the owner of the trademark has common law rights in
said trademark, and a French version of the trademark is not
registered in Canada.6 Under
Bill 96, this exception becomes restricted to registered
marks. In other words, the owner of a common law trademark
can no longer rely on the "recognized trademark"
exception and is forced to translate in French the unregistered
trademark which appears in its public display.
For any public display of a registered trademark, which appears
in a language other than French, the "sufficient presence of
French"7 requirement is replaced by
the markedly predominant requirement.8 In practice, this
would mean that when a registered trademark is displayed on the
exterior of a building, it must be accompanied by inscriptions in
French that have a greater visual impact than the trademark in
question. The same requirement applies to a business name displayed
outside a building, which includes a portion in a language other
than French.9
All the above would come into effect 3 years after Bill 96
receives approval.10
Complaints, OQLF's powers and sanctions
Handling of complaints
Bill 96 formalizes the way the OQLF handles complaints and
imposes certain obligations in this area.11 Notably, the OQLF must
report to the complainants, informing them of the processing of
their complaint and the measures that the OQLF intends on taking
against the defaulting party.
The effective date for these changes would be the date on which
the first French language Commissioner is appointed.12
Powers of the OQLF
Bill 96 extends and amplifies the powers of the OQLF. It grants
the OQLF the power to issue orders in the event of a breach of the
French Charter's provisions or to ask the Superior Court to
issue injunctions.13 Bill 96
allows the OQLF to order the removal of products that do not comply
with the provisions pertaining to inscriptions on products or to
ask the Court to issue an injunction to that effect.
The OQLF may also ask the Court to order the removal or
destruction of posters, advertisements, billboards and illuminated
signs that contravene the French Charter.14
The effective date of these changes would be the day Bill 96
receives approval.15
Sanctions in case of violation
Under Bill 96 sanctions for violations are more severe and
diversified. For example, a business may have its government-issued
license suspended or revoked if it repeatedly violates the French
Charter.16
The fines for a natural person (an individual) range from $700
to $7,000 (under the French Charter, the current fines range from
$600 to $6,000), and for a legal person the fines range from $3,000
to $30,000 (the current fines range from $1,500 to $20,000). 17
The increase in fines may not seem significant at first glance, but Bill 96 also contains the following additional provisions that notably increase the amount of the fines:
- The amount doubles for a second violation and triples for any subsequent violations;18
- If the offense is committed by an executive or an administrator of legal person, the minimal and maximum fines double for the natural persons;19
- If the violation continues for more than one day, each day is considered as a distinct violation, which multiplies the amount of the fines.20
At this time, we do not know if, or when, Bill 96 will come into
force. However, the government of Québec holds Bill 96 in
priority with all political parties in Québec wishing to
move that matter forward rapidly. Please subscribe to our IP
Updates for up-to-date news and announcements regarding
Bill 96.
For more information on Bill 96 and the proposed changes to the
French Charter and Regulation, please contact a member of our
Trademarks & Brand Protection group for further guidance and
assistance.
Footnotes
1. French Charter, section 55 and Bill 96, section 44.
2. Bill 96, section 114 (204.19).
3. Bill 96, section 114 (204.25) and Civil Code of Québec, section 1436.
4. Bill 96, section 201.
5. Bill 96, section 47.
6. See our article " French language requirements in Québec: Part 5 - The 'recognized trademark' exception".
7. See our article " French language requirements in Québec: Part 6 - A 'recognized trademark' displayed outside a building".
8. See our article "French language requirements in Québec: Part 4 - Public signs, posters and commercial advertising".
9. Bill 96, section 48.
10. Bill 96, section 201 para. 5.
11. Bill 96, section 107.
12. Bill 96, section 201 para. 7.
13. Bill 96, section 113 (184).
14. Bill 96, section 113 (184).
15. Bill 96, section 201.
16. Bill 96, section 114 (204.27).
17. Bill 96, section 114 (205).
18. Bill 96, section 114 (206).
19. Bill 96, section 114 (207).
20. Bill 96, section 114 (208).
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