Artwork for podcast Perspectives – Legal Voices on Business
En français s’il vous plaît: Amendments to the Charter of the French Language
Episode 6 • 10th May 2022 • Perspectives – Legal Voices on Business • Fasken
00:00:00 00:20:21

Share Episode

Transcripts

Antoine Aylwin:

:

Our principal amendments to the Quebec Charter of the French language.

Antoine Aylwin:

:

Hello and welcome to another episode of Perspectives.

Antoine Aylwin:

:

Fasken's Business Law Podcast.

Antoine Aylwin:

:

My name is Antoine Aylwin and I'm a Partner at the Montreal office.

Antoine Aylwin:

:

Today I'm joined with my colleague Iara Griffith.

Iara Griffith:

:

Hi Antoine.

Antoine Aylwin:

:

We'll talk today about the latest changes to the charter of French language in Quebec.

Antoine Aylwin:

:

We are at the time of the recording, just after the commission work, so we're pretty

Antoine Aylwin:

:

much have a good idea on the final text of the law.

Antoine Aylwin:

:

But it's not adopted yet.

Antoine Aylwin:

:

We should be able to issue that podcast at the time where the bill will be sanctioned so

Antoine Aylwin:

:

that you will have a good idea of what's going on and how you need to adapt your

Antoine Aylwin:

:

business to comply with the changes.

Antoine Aylwin:

:

Everybody that does business in Quebec that is involved in Quebec knows that French

Antoine Aylwin:

:

language is a big component of what Quebec is, the identity of the Quebecers, and that

Antoine Aylwin:

:

also French language legislation is a hot topic in Quebec.

Antoine Aylwin:

:

Since the 70's, there were several waves of of debates regarding French language.

Antoine Aylwin:

:

And the latest modification brings the same level of discussion where in one corner you

Antoine Aylwin:

:

have people advocating that the reform is going too far and in the other corner group

Antoine Aylwin:

:

that says that it doesn't go far enough.

Antoine Aylwin:

:

So we'll leave you to make your own assessment of the situation after we review

Antoine Aylwin:

:

the main changes and the Bill-96, as we will call it today, the latest reform of the

Antoine Aylwin:

:

French language.

Antoine Aylwin:

:

So let's start first by trying to delineate what's the scope of the application of this

Antoine Aylwin:

:

legislation. So can you tell us who should be concerned about these changes to the

Antoine Aylwin:

:

French language charter in Quebec?

Iara Griffith:

:

So in the 70's, Quebec made French the official language.

Iara Griffith:

:

This change went beyond government and courts.

Iara Griffith:

:

French became the language of work instruction, communication, commerce and

Iara Griffith:

:

business. The charter thus has important impacts for businesses doing or looking to do

Iara Griffith:

:

business in Quebec's province.

Iara Griffith:

:

But currently the general understanding is that the charter applies to companies doing

Iara Griffith:

:

business in Quebec that have a place of business here.

Iara Griffith:

:

But it doesn't give much detail as to whether it applies to federally regulated

Iara Griffith:

:

businesses. And without mentioning federal businesses, Bill-96 specifies that the

Iara Griffith:

:

charter will apply to any enterprise or employer carrying on activities in Quebec.

Iara Griffith:

:

Now, during the detailed study of Bill-96 before the Institutions Committee, Simon

Iara Griffith:

:

Jolin-Barrette, the Minister who introduced the bill specified that under this provision,

Iara Griffith:

:

all businesses, whether federally regulated or not, will be subject to the charter.

Iara Griffith:

:

He also stated that the Quebec government would exercise its jurisdiction to the full

Iara Griffith:

:

extent. Now Bill C-13 was recently introduced at the federal level and among

Iara Griffith:

:

other things, it intends to mandate the use of French in certain federally regulated

Iara Griffith:

:

companies. Federal companies can opt out and choose to be subject to the Quebec charter,

Iara Griffith:

:

which is more stringent.

Iara Griffith:

:

So we have two opposing regimes, and if Bill C-13 is passed as currently drafted, maybe we

Iara Griffith:

:

should anticipate a constitutional debate.

Antoine Aylwin:

:

Just to be precise, what is a federal business or what we call a federal

Antoine Aylwin:

:

undertaking in the legal context?

Iara Griffith:

:

So what we mean by federally regulated businesses is that some industries are

Iara Griffith:

:

regulated by the federal government because of the Constitution Act.

Iara Griffith:

:

And we can think of industries like banks, airports, airlines, pipelines, telephone,

Iara Griffith:

:

cable systems, radio.

Iara Griffith:

:

There are quite a few.

Antoine Aylwin:

:

Just to show the importance of the minister's intent regarding French language, one should

Antoine Aylwin:

:

consider as well that the Bill-96 modifies the Canadian Constitution to add French as

Antoine Aylwin:

:

being the official language of Quebec and the Quebec Charter of Human Rights.

Antoine Aylwin:

:

So the right to live in French in Quebec is brought to a higher level by amending the

Antoine Aylwin:

:

charter. But once we've discussed this issue of principle, let's delve into the details of

Antoine Aylwin:

:

the reform. And let's start with the language of work.

Antoine Aylwin:

:

The first aspect of modifications in Bill-96 regards to the documentation with employees.

Antoine Aylwin:

:

Can you tell us more about it with.

Iara Griffith:

:

Respect to language of work and work related documentation, Bill-96 broadens the list of

Iara Griffith:

:

documents that an employer is required to provide in French.

Iara Griffith:

:

Right now, the list currently includes offers of employment, of promotions and written

Iara Griffith:

:

communications. But Bill-96 adds the following documents to the list.

Iara Griffith:

:

Offers of transfer, individual employment contracts, employment application forms,

Iara Griffith:

:

documents relating to conditions of employment, training materials and about

Iara Griffith:

:

written communications.

Iara Griffith:

:

Bill-96 specifies that this applies to communications even after termination of

Iara Griffith:

:

employment and with all or part of staff.

Iara Griffith:

:

Regarding individual employment contracts, there are two exceptions.

Iara Griffith:

:

First, if it's a predetermined contract also known as; A contract of adhesion.

Iara Griffith:

:

It can be drafted in another language in French if the adhering party generally the

Iara Griffith:

:

employee has been provided with a French version and the parties choose this other

Iara Griffith:

:

language anyway.

Iara Griffith:

:

And second, if the contract was negotiated freely, then it can be drafted in another

Iara Griffith:

:

language at the express wish of both parties.

Antoine Aylwin:

:

So we get more details about the documentation with employees.

Antoine Aylwin:

:

But I think one of the main change is when can we require another language in French

Antoine Aylwin:

:

from a potential employee?

Iara Griffith:

:

Right. Because currently it's possible to exceptionally require that an employee have

Iara Griffith:

:

knowledge of or speak another language than French.

Iara Griffith:

:

But Bill-96 brings about a new contextual approach.

Iara Griffith:

:

And before imposing such a requirement, the employer will need to take all reasonable

Iara Griffith:

:

means to avoid doing so.

Iara Griffith:

:

So this requires the employer to assess the actual language needs associated with the

Iara Griffith:

:

duties to be performed by the potential candidate.

Iara Griffith:

:

The employer will need to make sure that other staff have an insufficient language

Iara Griffith:

:

knowledge in regard to the performance of such duties, and the employer will need to

Iara Griffith:

:

restrict as much as possible the number of positions involving duties whose performance

Iara Griffith:

:

requires knowledge of another language.

Iara Griffith:

:

Now, failure to respect any of these conditions will mean that the employer will

Iara Griffith:

:

be presumed not having taken all reasonable means.

Iara Griffith:

:

However, during the detailed study of Bill -96, an amendment was adopted, and it adds

Iara Griffith:

:

that the employer's assessment of reasonable means should not be interpreted in a way that

Iara Griffith:

:

would impose an unreasonable burden.

Antoine Aylwin:

:

On one end. It was softened, but on the other end you have a new obligation.

Antoine Aylwin:

:

When you post a new position.

Antoine Aylwin:

:

What is it?

Iara Griffith:

:

Exactly. So when advertising a job offer which requires knowledge of another language,

Iara Griffith:

:

the employer will need to state the reasons for that requirement.

Antoine Aylwin:

:

And the last modification of importance in the language of work is the prohibited

Antoine Aylwin:

:

practices. Now, Bill-96 will provide new recourses for staff members in order to raise

Antoine Aylwin:

:

that they were discriminated because they want to exercise their right to speak French

Antoine Aylwin:

:

or their rights under the charter.

Antoine Aylwin:

:

So they are new recourse.

Antoine Aylwin:

:

Whether it is unionised environment or not, the employee will have recourses if he feels

Antoine Aylwin:

:

that he was subject of repercussions because he didn't want to speak another language than

Antoine Aylwin:

:

French. So this will empower employees or staff members to make their rights applicable

Antoine Aylwin:

:

under the Charter.

Antoine Aylwin:

:

For all businesses doing business in Quebec.

Antoine Aylwin:

:

There's a question about do I need to register with the Office of French Language?

Antoine Aylwin:

:

Can you tell us more about the changes under Bill-96?

Iara Griffith:

:

So the requirement to register with the office is set forth in the section on

Iara Griffith:

:

Francization of businesses.

Iara Griffith:

:

So currently businesses with 50 employees and more are required to register with the

Iara Griffith:

:

office and are subject to Francization rules.

Iara Griffith:

:

Bill-96 provides that businesses with 25 to 49 employees will also be subject to the

Iara Griffith:

:

Francization rules.

Iara Griffith:

:

This means that they will have to generalise the use of French across all levels of their

Iara Griffith:

:

enterprise.

Antoine Aylwin:

:

And they have to register, they have to do a self-assessment and the office has a power to

Antoine Aylwin:

:

impose the creation of a Francization committee, which is standard for enterprises

Antoine Aylwin:

:

of 100 employees or more.

Antoine Aylwin:

:

But under 100, they could, after the assessment, request a committee if they feel

Antoine Aylwin:

:

that there's work to be done for the French to be used in the workplace.

Antoine Aylwin:

:

For those who are doing business in Quebec, one of the important theme under the charter

Antoine Aylwin:

:

is the language of commerce.

Antoine Aylwin:

:

What do you need to apply in your business relationships in Quebec?

Antoine Aylwin:

:

And there's a few modifications under this team this year under Bill-96.

Antoine Aylwin:

:

Can you tell us what they are?

Iara Griffith:

:

Bill-96 reinforces the obligation of businesses offering goods and services to

Iara Griffith:

:

consumers to respect their right to be served in French.

Iara Griffith:

:

Bill-96 also provides that businesses offering goods and services to a public other

Iara Griffith:

:

than consumers will be required to inform and serve the public in French by default.

Iara Griffith:

:

This is consistent with the office's interpretation that the charter not only

Iara Griffith:

:

applies B2C so business to consumers, but also in business to business relationships.

Iara Griffith:

:

Bill-96 also modifies or broadens the scope of the prominence rule.

Iara Griffith:

:

So right now the charter provides that an inscription on a product can be in another

Iara Griffith:

:

language but cannot be given greater prominence than the version in French.

Iara Griffith:

:

Bill-96 adds that the inscription in another language cannot be made available in more

Iara Griffith:

:

favourable terms than the version in French.

Iara Griffith:

:

This is also consistent with the interpretation of the office that, for

Iara Griffith:

:

instance, an inscription cannot be available in French online where it's in the box of the

Iara Griffith:

:

product in English.

Antoine Aylwin:

:

One of the main changes is about contracts and predetermined contracts.

Antoine Aylwin:

:

Can you tell us about what is changing and will probably have big consequences on people

Antoine Aylwin:

:

listening to us today.

Iara Griffith:

:

Right now, a lot of people are drafting their predetermined contracts with the clause

Iara Griffith:

:

saying that the parties have expressed their wish that the contract be drafted in another

Iara Griffith:

:

language like English.

Iara Griffith:

:

But under Bill-96, predetermined contracts will need to be drafted in French by default,

Iara Griffith:

:

and the French version will need to be provided to the adhering party in order for

Iara Griffith:

:

that party to express that they truly want the contract to be drafted in another

Iara Griffith:

:

language.

Antoine Aylwin:

:

So that people understand what is a predetermined contract, is a contract that is

Antoine Aylwin:

:

drafted by a party and is asked to to another party to adhere to.

Antoine Aylwin:

:

So it's very often the case in the B2C relationship where the company would have a

Antoine Aylwin:

:

typical contract that they would submit to consumers and that the consumer doesn't have

Antoine Aylwin:

:

the ability to negotiated the terms of the contract.

Antoine Aylwin:

:

You take it or you leave it.

Antoine Aylwin:

:

So these are the contracts that are aimed by these provisions.

Antoine Aylwin:

:

And can you tell us more about what are the consequences if we don't follow the rules?

Antoine Aylwin:

:

And it's the same that you explained to us regarding employment contracts.

Antoine Aylwin:

:

So let's say you have a predetermined contract that was not provided in French at

Antoine Aylwin:

:

the time of the signature and sign in another language.

Antoine Aylwin:

:

What are the consequences?

Iara Griffith:

:

One of the most important consequences for not complying with that requirement is the

Iara Griffith:

:

nullity of the contract.

Iara Griffith:

:

And in this particular situation, there's a reverse burden of proof, meaning that the

Iara Griffith:

:

person who is subject to the infringing contract does not have to demonstrate an

Iara Griffith:

:

injury. It must only demonstrate that the other party, the person or the the company

Iara Griffith:

:

who drafted the contract, did not provide a French version.

Antoine Aylwin:

:

One of the changes that will have probably more resonance in the retail industry are the

Antoine Aylwin:

:

changes regarding the public signage and advertising.

Antoine Aylwin:

:

The signage that we see in the streets will probably be revised under the new provision

Antoine Aylwin:

:

because many of them do not comply with the new provisions.

Antoine Aylwin:

:

Can you tell us what are these changes that are coming up with Bill-96?

Iara Griffith:

:

Bill-96 really broadens the scope of rules applicable to public signs.

Iara Griffith:

:

So on public signs and posters that are visible from outside premises, French will

Iara Griffith:

:

have to be markedly predominant if the name of that business is is either in another

Iara Griffith:

:

language or includes an expression taken from another language than French.

Antoine Aylwin:

:

But there was an exception decided by the Court of Appeal in Quebec regarding the use

Antoine Aylwin:

:

of trademark in another language that could be done in Quebec.

Antoine Aylwin:

:

What's the impact of Bill-96 on that exemption?

Iara Griffith:

:

Under Bill-96, trademarks are included in that.

Iara Griffith:

:

They may be drawn up in another language.

Iara Griffith:

:

However, French must be markedly predominant where that trademark appears in another

Iara Griffith:

:

language.

Antoine Aylwin:

:

So you can still use your trademark, but you will have to add a French component that

Antoine Aylwin:

:

explains what is your business.

Antoine Aylwin:

:

That will be twice the size of the trademark that is in another language.

Antoine Aylwin:

:

Another modification in the Bill-96 is everything that has a relationship with the

Antoine Aylwin:

:

administration, and this covers, in fact, all the public offices.

Antoine Aylwin:

:

What are these modifications that will govern private businesses relationship with

Antoine Aylwin:

:

the administration?

Iara Griffith:

:

The requirements are drafted towards the civil administration in the law or in Bill

Iara Griffith:

:

-96, but they will have an impact on businesses because businesses will be

Iara Griffith:

:

required to communicate with the government in French and contracts with the government

Iara Griffith:

:

will need to be drafted in French.

Iara Griffith:

:

We know that the government often uses its own templates, but this will have a

Iara Griffith:

:

significant impact nonetheless.

Antoine Aylwin:

:

Because we're talking about permits, subsidies, authorisation, financial grants or

Antoine Aylwin:

:

assistance. So everything that is requested from the government will have to be in

Antoine Aylwin:

:

French. As a matter of fact, yes, exactly.

Antoine Aylwin:

:

Again, what are the consequences if you have an obligation to contract with the government

Antoine Aylwin:

:

in French and you fail to do so for any reason?

Iara Griffith:

:

If a business fails to comply with such requirements, the contract can be annulled or

Iara Griffith:

:

the government will have to refuse to do business or to grant the requested permits.

Iara Griffith:

:

A subsidy, the grant or the the document that was requested.

Antoine Aylwin:

:

And in fact, there will be kind of a blacklist kept by the office of French

Antoine Aylwin:

:

Language. So if you fail to comply with the requirements for Francization, for example,

Antoine Aylwin:

:

you won't be able to enter into a contract, whether it's a it's a call for tenders or a

Antoine Aylwin:

:

private contract with the government.

Antoine Aylwin:

:

You won't be able to enter a contract if you're on that blacklist as well.

Antoine Aylwin:

:

Regarding compliance with the bill, we saw that, you know, there's an increase in the

Antoine Aylwin:

:

obligation of organisations regarding the use of French.

Antoine Aylwin:

:

What does Bill-96 provide to the office in order to make sure that businesses are

Antoine Aylwin:

:

compliant?

Iara Griffith:

:

It provides teeth.

Antoine Aylwin:

:

Okay.

Iara Griffith:

:

Right now the office can sort of only give a little slap on the wrist.

Iara Griffith:

:

It can send a business, a formal notice and the business can compel it to comply.

Iara Griffith:

:

And if the breach remains uncovered, the office can refer the matter to relevant

Iara Griffith:

:

authority, which can institute a penal lawsuit.

Iara Griffith:

:

Under Bill-96, the office will be granted the power to make orders so it can order a

Iara Griffith:

:

company to comply, and it will also be able to apply for an injunction.

Iara Griffith:

:

An injunction could mean that a company is forced to comply with the law, that it's

Iara Griffith:

:

products be removed from stores, or that its public signs be destroyed.

Antoine Aylwin:

:

Okay Iara. We discuss a lot of topics today regarding Bill-96, which is only a part of

Antoine Aylwin:

:

Bill-96, by the way, The question that probably people listening to us have in mind

Antoine Aylwin:

:

right now is when these provisions are coming into force.

Iara Griffith:

:

Indeed. And to make things simple, the government has decided that Bill-96 will come

Iara Griffith:

:

into force on ten different dates.

Iara Griffith:

:

But note that most of his provisions will come into force on the date of assent, which

Iara Griffith:

:

is right now.

Iara Griffith:

:

And most of the provisions that we discussed today are in force right now.

Antoine Aylwin:

:

So it's time to make sure that everybody knows what their obligations are, what they

Antoine Aylwin:

:

have to change into in their recruitment, in their contracting and their public signage

Antoine Aylwin:

:

and their need for registration.

Antoine Aylwin:

:

We're able to help. That's the good news.

Antoine Aylwin:

:

So do not hesitate to contact anybody of the team, read our publications and do the

Antoine Aylwin:

:

self-assessment tool that we put online.

Antoine Aylwin:

:

We also have a guide that provides more information on the main changes that we

Antoine Aylwin:

:

discussed today. I hope we succeeded in giving you more information and in making you

Antoine Aylwin:

:

aware of the stakes that Bill-96 raises.

Antoine Aylwin:

:

It will be a pleasure to accompany you in your compliance efforts and see what

Antoine Aylwin:

:

adjustments are necessary to integrate the upcoming requirements.

Antoine Aylwin:

:

Thank you, Iara, for your contribution.

Iara Griffith:

:

Thank you, Antoine.

Antoine Aylwin:

:

And thank you for our listeners for tuning in to learn more about the topic.

Antoine Aylwin:

:

We encourage you, as I said, to consult our resources on our website, to subscribe to our

Antoine Aylwin:

:

distribution list, to receive our newsletters and invitations, to attend

Antoine Aylwin:

:

conferences and training sessions on this subject.

Antoine Aylwin:

:

You can also subscribe to our Perspectives podcast, which features various current legal

Antoine Aylwin:

:

topics for the Quebec business community.

Chapters

Video

More from YouTube