There has been a great extent of discussion in various media and venues regarding the recent Bill 96 that came into effect on June 1st 2022. There are many areas of confusion in the business world as to the impact of the new and upgraded law; specifically, how to modify business processes to meet the reformed requirements. In this blog, I will provide a general run down of Bill 96 which is meant for a quick read only. I highly encourage anyone who is interested to learn more about this topic to seek professional legal advice from a trusted party of choice. In addition, I am always here to assist with the linguistic aspect of being compliant with Bill 96 through the services I provide. For example, content translation, contracts, marketing materials, website, and over the phone interpretations. In summary, my services are able to aid all areas of language related communication to assist your business in compliance with the new language requirement in the province of Quebec.
Let’s dive in! After a year-long legislative process, ‘Bill 96’, an Act respecting the official and common language of Quebec, French, was finally passed by the Quebec National Assembly on May 24, 2022. It happened after a long process in which significant amendments were made to the first draft of Quebec’s Charter of the French Language, introduced on May 13, 2021. The bill then received royal assent on June 1, 2022.
Bill 96 is aimed to further promote the use of the French language and to reiterate its formal recognition as Quebec’s official language. The purpose is to clarify and strengthen the existing enforced measures through the Charter of the French language in 2021 and to add new conditions and provisions to it. Moreover, it is to reinforce the role of the Office Québécois de la Langue Française (OQLF) which is the government body to ensure compliance with the Charter.
It imposes, among other things, new obligations regarding the language of work, commerce and business, contracts, signage, communications between government and businesses, educational institutions and courts.
Thus, businesses and lawyers must prepare for the impact Bill 96 will have on the Quebec judicial system and its procedures. Although the new rules come into force at varying times (ranging from immediate sanction to 3 years after sanction), several rules are already in force. Here are some ways your business activities may be affected by Bill 96 in Quebec.
Businesses Must Offer Goods and Services in French
An explicit obligation introduced by Bill 96 for businesses is to offer goods and services in French to consumers, non-consumers, and civil administration bodies. Before Bill 96, this right was not implemented separately from the Charter’s provisions imposing specific obligations on businesses to interact with consumers. Only the consumers had the right to be informed and served in French. We can expect the broad enforcement approach brought by Bill 96 to be enforced as a free-standing obligation and fill the gaps between existing requirements.
Impact of Bill 96 on Contracts and other Documents in Business
Under Bill 96, parties are required to draw all contracts of adhesion (non-negotiable contracts that are pre-determined by one party) exclusively in French, with limited exceptions. Prior to this new regime, parties to a contract of adhesion could put a standard clause about the contract language and decide on an agreement drafted exclusively in the English language (i.e., without a French version).
Bill 96, which came after a year of assent date, requires companies to present a French version of all the contracts before a party can express the wish to be bound by another language version.
This new provision answers the ongoing interpretative debate on the existing requirements as to whether a French version of contracts is required before the parties agree on the English language.
If a subscribing counter-party expresses the wish to be bound by another language version, upon receiving a French version of the contract, in addition to the contract itself, the contract documents may also be drafted in that other language. Although, this new rule has some limited exceptions: loan contracts, extra-provincial relations contracts, and financial instruments. This new requirement does not extend to contracts with specific standard terms that the parties would negotiate otherwise.
In general, an adhering party will not be bound by the external clauses mentioned in French adhesion contracts if not drafted in French. If an adhering party requests for the adhesion contract to be in English, the external clause may be in English.
Quebec civil administration contracts, whether the parties carry out their activities in Quebec or not, must be drafted exclusively in French, with a few exceptions. Other civil administration documents must also be drafted exclusively in French, including the documents transmitted with a view to the conclusion of a contract and all French contract-related documents.
Websites and Marketing Materials
The previous interpretation of the existing rule was confirmed by Bill 96, according to which social media, websites, newsletters, brochures, catalogues, and other manuscripts must be in French. It also confirms the requirement of providing versions of these media in languages other than French, but not under more favourable conditions than the version in French.
In the past, only businesses with a physical establishment in Quebec were required to comply with this rule, based on an analysis of the specific facts. Since this new approach does not seem to change, businesses may be at greater risk with the new remedies in place concerning the breaches of Charter obligations.
Packaging and Labelling
It was already provided in the Charter that the products and their containers and packaging must have inscriptions in French. Entries in other languages may accompany French entries, but none of them shall prevail over the French one.
Bill 96 maintains this provision and clarifies that listings provided in other languages cannot be on more favourable terms than listings in French. Since the Charter rule is already practiced this way, we cannot expect a change in practice.
Regarding trademarks, Bill 96 provides that if a trademark in a language other than French appearing on packaging or labelling is used under the trademark exception and has a generic term or product description, it must also be indicated in French permanently.
For Public Signs and Commercial Advertising
The current Charter rules required all commercial advertising and public signs to be in French. They may also be in a language other than French, provided that French is “clearly predominant” over the other language. The term “definitely predominant” means that the font size of the French text must be double the size of the text in the other language to have a greater visual impact.
In addition, the current Charter allows the marks to appear on public signs and posters in a language other than French, provided that the marks in French have a “sufficient presence.” It is about the marks that are visible from the outside. The companies usually satisfy this requirement by adding a generic or descriptive word in French to qualify the mark, such as “café” or “boutique.”
The Trademark Exception
In the past, the Charter’s Regulation on the language of commerce and business provided the “trademark exception,” which are exceptions to the above rules, for English-only trademarks. The existing rules required that a “recognized” trademark by the Canadian trademark law (generally including the registered, unregistered, and pending trademarks) could appear exclusively in a language other than French on the packaging, labelling, posters, and public signs. This rule has additional requirements for posters and public signs displayed outdoors or visible from the outside. Many businesses, national and international, relied on this exception to ensure consistency in their brand image.
Bill 96 restricts the existent exception and clarifies that companies will no longer be able to invoke this exception for unregistered marks and marks awaiting registration. From the age of three, the trademark exception will only be available for registered trademarks, provided the absence of any corresponding French version in the Trademarks Database Canadian. Any company that relies on this exemption or plans to rely on it to do business in Quebec should ensure that its marks or the applications are filed or registered. This is to ensure that these applications have reached the registration stage before the entry into force of the new rule.
Requests from Government Agencies
Companies must write all written documents exclusively in French that are sent to government agencies to obtain authorization, permit, subsidy, or financial assistance.
Registration of Movable Security/ Personal Property in French
Prior to Bill 96, applicants could write applications for registration of a security or other right in the Register of Personal and Movable Real Rights (RDPRM) for the Province of Quebec in French or in English. As of three months, as Bill 96 receives royal assent, all RDPRM registrations must be written exclusively in French, including the description of the collateral and any modification to an existing registration published before the adoption of Bill 96 (even if it was previously published in English).
Applications for Registration at the Land Registry Office
Prior to Bill 96, applicants could write applications registered with the Land Registry in French or in English for the registration, declarations and amendments, or other rights for the Province of Quebec. As of three months after the assent of Bill 96, all such applications (except in connection with co-ownership) must be written exclusively in French. However, this rule does not apply to an act that modifies or corrects another deed that was published at the Land Registry Office in another language before Bill 96 came into force, and it can be published in a language other than French. Effective on the date of assent to Bill 96, one must file a declaration of co-ownership fractions at the Land Registry Office exclusively in French.
Potential Risks and Consequences of Non-Compliance
Companies that fail to comply with the Charter are introduced with potential risks and consequences by Bill 96. Before Bill 96 came into force, there were administrative fines and the suspension or potential withdrawal of the company’s francization certificate for companies in case they fail to comply with the Charter. This fine amount doubled, from $1,500 to $20,000, in the event of a repeat offence. In addition, businesses failing to comply with Quebec’s obligations related to the use of the French language were always at the risk of reputational damage in the province.
- Fines will increase: With Bill 96, fines will be increased for businesses for their non-compliance with the Charter’s certain provisions. The increase in the fine for businesses is expected to be ten times, i.e., from $3,000 to $30,000. In the case of a second offence, the estimated fine will be doubled, and for subsequent offences, it will be tripled. Each day that an infraction persists constitutes a separate infraction.
- Liability of directors: Directors are presumed liable for the Charter’s violation of any kind a legal person commits unless they can demonstrate that they took all necessary measures and were diligent in preventing such violation.
- Civil action rights: Individuals have the right to bring a civil action against the alleged infringer who violates their language rights under the Charter.
- Contracts: A person who suffers prejudice may request to annul the contract’s provisions causing that prejudice by violating the Charter’s provisions. This person can also choose to ask for a reduction of his obligations in proportion to the prejudice that otherwise would be justified.
- Government Permits and Authorizations: Government authorizations or permits may face suspension or revocation in case of repeated violations of the Charter.
- Injunctions: The Office obtains the possibility of
- (a) ordering companies that fail to comply with the Charter to stop the non-compliant activity or to make modifications to comply with the Charter, and
- (b) seeking an injunction directly addressing the courts to force the companies to comply or seek a court order against the offending company to remove or destroy their signs, posters or advertisements that violate the rule provided by the Charter.
Conclusively, I hope this blog post provided some clarification regarding Bill 96 and the consequences to follow. Once again, if you or your business is affected by Bill 96, do not hesitate to contact professionals to assist in the integration of the new law into your business processes.
Until next time!