Québec’s Bill 96 Amending French Language Legislation Has Been Adopted: How Is Your Business Affected?
Note: On June 1, 2022, Bill 96 received royal assent. Some of its provisions are therefore now in force.
On May 24, 2022, Bill 96, An Act Respecting French, the Official and Common Language of Québec (“Bill 96”) was adopted in Québec’s National Assembly. Its adoption follows a year-long legislative process that saw many amendments made to the first draft initially introduced on May 13, 2021. We expect Bill 96 to receive royal assent in the coming days, with some amendments coming into force immediately upon assent.
Bill 96 aims to further promote the use of French language in Québec and reiterate the formal recognition of French as the only official language in Québec. It clarifies and reinforces the measures currently in force through the Charter of the French Language (the “Charter”), introduces new requirements and restrictions, and strengthens the role of the Office québécois de la langue française (the “Office”), the governmental body responsible for ensuring compliance with the Charter.
Below are some of the ways in which Bill 96 may impact your commercial activities within or with Québec. While the new rules will come into force within varying delays (from immediately upon assent to 3 years from assent), unless otherwise indicated, new rules come into force on the date of assent.
Offering goods and services in French: Bill 96 introduces an explicit requirement for businesses to offer goods and services to consumers, non-consumers, and agencies of civil administration in French. Before Bill 96, only consumers had the right to be informed and served in French and the right was not enforced separately from the other provisions of the Charter that imposed specific obligations on businesses interacting with consumers. Given the general enforcement approach taken by Bill 96, we can expect that this new requirement may be used to fill in the gaps between the existing requirements and enforced as a standalone obligation.
The Language of Contracts and Other Documents
- Before Bill 96, parties to a contract of adhesion (non-negotiable contracts that are pre-determined by one party) could insert a standard language clause stipulating that the parties agreed to enter into an agreement drafted exclusively in the English language (i.e. for which no French version existed). Under the new regime, the insertion of a language clause in contracts of adhesion will no longer be sufficient.
- The new rule, which will come into force one year after assent, is that all contracts of adhesion will need to be drawn up in French, with limited exceptions. Businesses must present a French version of such contracts before an adhering counterparty may express a wish to be bound by a version in another language. This new requirement clarifies a prior interpretation debate as to whether the existence of a French version was required prior to the decision of the parties to enter into an agreement in the English language. Once an adhering counterparty has been presented with a French version of the contract and expresses a wish to be bound by a version written in another language, in addition to the contract itself, the documents attached to such contract can also be exclusively written in that other language. The limited exceptions to the rule include contracts used in extra-provincial relations, loan contracts and financial instruments, among others.
- This requirement does not extend to contracts containing some standard clauses but which are otherwise negotiated between the parties.
- In general, external clauses referred to in French contracts of adhesion will not be binding on an adhering party unless such clauses are in French. If a contract of adhesion has been drafted in English at the express request of the adhering party, the external clause may be in English.
- Contracts entered into with the Québec civil administration will have to be drawn up exclusively in French with few limited exceptions, regardless of whether the other party is operating in Québec or not. Several other written documents sent to the civil administration will also need to be exclusively in French, such as documents sent in order to enter into a contract and all documents relating to a French contract.
Websites and Marketing Materials
- Bill 96 confirms the prior interpretation of the existing rule that websites, social media, newsletters, catalogues, brochures and other documents of the same nature need to be in French, and that versions of such media in languages other than French may be provided but not on more favourable terms than the French version.
- Historically this requirement was only enforced against businesses that have an establishment in the province of Québec, pursuant to a fact-specific analysis. While we do not currently have any indication that this approach will change, the new remedies available in respect of a breach of the Charter obligations discussed below may put some businesses at greater risk.
Packaging & Labelling
- The Charter already provided that inscriptions on products, their containers, their wrapping, and on documents and objects supplied with them must be in French. The French inscriptions may be accompanied with inscriptions in other languages, but no inscription in another language may be given greater prominence than its equivalent in French. This does not change with Bill 96.
- Bill 96 does clarify that this requirement means that inscriptions in languages other than French may not be provided on more favourable terms than the French inscriptions. We do not anticipate that this will incite any change in practice, as the Charter rule is already interpreted this way in practice.
- Bill 96 also provides that if a trademark that appears on the packaging or labelling in a language other than French is being used pursuant to the trademark exception and contains a generic term or description of the product itself, such a generic term or description will also need to be indicated in French in a permanent manner.
For Public Signs and Commercial Advertising
- Under current Charter rules, commercial advertising and public signs and posters must be in French. They may also be in French and in another language, provided that the French is “markedly predominant” as any other language. “Markedly predominant” means that the French text must be twice as large than texts in other languages or otherwise carry more of a visual impact.
- In addition, trademarks in a language other than French are permitted to appear on public signs and posters visible from outside as long as there is a “sufficient presence of French”. This requirement is generally met by adding a generic or descriptive French word to qualify the trademark, such as “café” or “boutique”.
- Under Bill 96, where a trademark in a language other than French is displayed on a public sign or poster that is visible from outside, such presence of French will need to be “markedly predominant” over the trademark that is in another language.
The Trademark Exception
- Historically, the Regulation respecting the language of commerce and business under the Charter provided for exceptions to the rules above for English-only trademarks, commonly referred to as the “trademark exception”. Currently, a trademark “recognized” under Canadian trademark legislation (generally interpreted as including registered, pending and unregistered or “common law” trademarks) could appear on packaging, labelling, public signs and posters exclusively in a language other than French, with some additional requirements in respect of public signs and posters displayed outside (as indicated above). This trademark exception was relied upon by many national and international businesses to ensure branding consistency.
- Bill 96 narrows the existing exception, and provides that businesses will no longer be able to rely on this trademark exception in respect of unregistered trademarks and trademarks pending registration. Starting in three years, the trademark exception may only be relied upon in connection with registered trademarks, provided that no corresponding French version appears in the Canadian Trademarks Database. Any business currently relying on or contemplating to rely on this exception in doing business in Québec should ensure its trademarks are registered or that applications are filed, to ensure that such applications have matured to registered before the new rule comes into force.
Applications to government bodies: Written documents sent to government agencies by businesses in order to obtain a permit, authorization, subsidy, or financial assistance will need to be drawn up exclusively in French.
Registering personal property rights in French: Before Bill 96, applications for registrations of security interests and other rights at the Register of Personal and Movable Real Rights (RPMRR) for the Province of Québec could be filed in French or in English. Starting three months after Bill 96 receives assent, all registrations at the RPMRR will need to be exclusively in French, including the description of the relevant collateral being charged by the security, and including any amendments to existing registrations filed prior to the coming into force of Bill 96 (even if initially registered in English).
Applications to the land register in French: Before Bill 96, applications for registration, declarations and amendments filed at the Land Registry Office could be in French or in English. Starting three months after Bill 96 receives assent, all applications for registration submitted to the Land Registry Office must be in French, but amendments to existing land registry registrations that were effected in a language other than French before the coming into force of Bill 96 may be registered in that other language. As of the day Bill 96 receives assent, all co-ownership declarations and any amendments to an act constituting a co-ownership or the description of the co-ownership fractions must be filed exclusively in French at the Land Registry Office.
Potential Risks and Consequences of Non-Compliance: Bill 96 introduces new potential risks and consequences for businesses that are not in compliance with the Charter. Prior to Bill 96, the Charter provided for administrative fines (from $1,500 to $20,000, doubled for a second offence) and the potential suspension or withdrawal of a business’s francization certificate, if applicable. In addition, there was always a risk of reputational damage in Québec relating to non-compliance with the province’s French language obligations.
- Fines will increase: The fines for non-compliance with certain provisions of the Charter will increase to $3,000 to $30,000 for businesses. Fines will be doubled for a second offence and tripled for subsequent offences. Each day an offence persists is a separate offence.
- Director liability: Directors are assumed liable for any Charter offence committed by the legal person unless they can show they exercised due diligence by taking all necessary measures to prevent its perpetration.
- Civil rights of action: People who feel their language rights are violated under the Charter may bring a civil right of action against the alleged offender.
- Contracts: The provisions of a contract that cause prejudice by contravening the provisions of the Charter may be annulled on the application of the person who suffers the prejudice. Such person may also opt for requesting a reduction in its obligations in proportion to the prejudice that such person would have been justified to claim.
- Government permits and authorizations: Repeated contraventions of the Charter may result in suspension or revocation of government permits or authorizations.
- Injunctions: The Office gains the ability to (a) order businesses that are not compliant with the Charter to cease the non-compliant activity/make changes to be compliant, and (b) go directly to the courts to request an injunction to force compliance or a court order for the removal or destruction of posters, signs or advertisements that contravene the Charter, at the expense of the offending business.
How Can We Help?
Bill 96 will have several ramifications on our clients’ businesses requiring them to change certain of their business processes, rethink their marketing, and create French language materials.
We are here to help and advise on how to think through the implementation of the necessary changes within your business in order to ensure compliance with Québec French language requirements.
In respect of new requirements to translate some of your existing documentation, MT>Version, a division of McCarthy Tétrault, offers high quality legal translation services by leveraging highly qualified in-house resources and utilizing innovative solutions, including proprietary machine translation technology, to meet your business translation objectives and timelines. MT>Version will work with you to provide clear benefits in terms of cost and deadlines, all while delivering peace of mind.
 Note that this blog post does not cover Québec employment-related French-language obligations under the Charter as well as obligations affecting judicial procedures. Check back soon for our blog posts on employment matters and on amendments to judicial procedure.