Bill 96, key legislation that will amend Québec’s Charter of the French Language (the “Charter”) and affect many businesses, has just been passed in the Québec National Assembly. It will not have force of law until assent (which follows adoption by the National Assembly) and which we anticipate will follow shortly. The version of Bill 96 that was introduced in 2021 (the subject of our previous post) was modified when the National Assembly adopted the report (the “Report”) of the Commission de la culture et de l’éducation (the “Commission”) on May 12, 2022 (with minor modifications). The changes to Bill 96 as recommended by the Commission and as adopted by the National Assembly are reflected in our summary below although we do not yet have a consolidated final version of Bill 96, as amended.

A number of the changes to the Charter made by Bill 96 will come into force immediately upon assent while others will take effect later, pursuant to certain transitional provisions. This post highlights the main business-related changes that Bill 96 will make to the Charter, including the amendments originating in the Report. Please note that additional changes related to employer French-language obligations and francization requirements (government certification that the use of French is generalized in a workplace) will be covered in a separate blog post from our Employment Group.

1. Main Aspects of Business Affected by the Changes

Bill 96 amends the Charter to add additional French-language requirements on businesses operating in Québec. These changes will affect many aspects of business operations, including:

• Communications with customers and clients;
• Contracts between private parties and related documents;
• External signage and commercial publicity;
• Inscriptions on products;
• Contracts with the Québec civil administration;
• Court pleadings.

The Charter rules set out when French must be used by a business in its relations with Québec entities and individuals and when “a language other than French” may be used. Below we will use English as an example of “a language other than French”.

The Office québécois de la langue française (“OQLF”) is the body responsible for enforcement of Charter compliance.

2. Communications with Customers and Clients

Businesses which offer goods or services in Québec must inform and serve their clientele, both consumers and business clients, in French. Bill 96 makes this principle an express obligation which, if contravened, is an offence punishable by fines. This new obligation was not amended in Commission.

3. Contracts between Private Parties (non-Government) and Related Documents

The new language rules for standard-form contracts (now called adhesion contracts) and contracts with standard-form clauses proposed by Bill 96 were the subject of extended debate in Commission, resulting in significant changes to these provisions.

Given the relative complexity of these new rules and exceptions, we will only briefly summarize below certain of the main impacts of the changes made to Bill 96.

New rules and exceptions

In brief, for adhesion contracts (other than employment contracts):

• Adhesion contracts are contracts whose main clauses have been stipulated by one party, i.e., that could not be negotiated. Sometimes it is difficult to determine whether a partially negotiated contract is an adhesion contract.
• Examples of adhesion contracts from the site of the OQLF include employment contracts, collective agreements, insurance contracts, leases and co-ownership declarations.
• Even if the adhering party wants to sign an adhesion contract in English only, businesses (the party which has drawn up the contract) must (i) have a French version of the adhesion contract to be used in Québec and (ii) provide a French version to the adhering party unless the contract is exempted as set out below.
• The following adhesion contracts are exempted from the above rule if the adhering party has expressly asked that the contract be in English only:
  1. Loan contracts, financial instruments and contracts whose object is the management of financial risks, including currency exchange or interest rate exchange agreements, contracts for the purchase or sale of options, or futures contracts;
  2. Contracts entered into with a person or company that carries on the activities of a clearing house;
  3. Contracts entered into on a platform for trading a derivative instrument referred to in the Derivatives Act (Quebec), a security referred to in the Securities Act (Québec) or other movable property, provided, in the latter case, that it is not a consumer contract;
  4. An insurance policy if there is no French-language equivalent in Québec and it meets one of the following conditions: (a) it originates outside Québec; or (b) its use is not widespread in Québec; and
  5. A contract used in relations outside Québec.
     (together, “exempted adhesion contracts”)

The exception for a contract used in relations outside Québec will likely be very important for certain businesses involved in cross-border transactions. However, pending any further guidance from the legislator, its exact scope is unclear.

• If the parties then choose to enter into the adhesion contract exclusively in English, the related documents, such as invoices, receipts, acquittances (releases), may be exclusively in English as well. Otherwise, there must be a French version of these related documents.
• A party may not require that the other party pay for a French version of an adhesion contract, a contract with standard clauses or their related documents if that party is entitled to a French version.
• Like exempted adhesion contracts, contracts with standard clauses may be entered into in English only if the parties have expressed their wish to do so (which is similar to the pre-Bill 96 regime).

Sanctions for non-compliance

• Exempted adhesion contracts and contracts with standard clauses: non-compliance (such as sending an exempted adhesion contract or contract with standard clauses in English-only to a party without that party having asked that it be in English only) may lead to a fine and/or order for compliance.
• Other adhesion contracts: if the non-compliance of the contract with the Charter (e.g. no French version when required) causes prejudice to the adhering party (which is assumed without further proof if there is non-compliance), the contract may be declared null and void at the request of the person who suffers the prejudice or the person may claim damages instead.
• New transitional rule: the new rules for adhesion contracts and contracts with standard clauses come into force one year after assent.

4. External Signage and Commercial Publicity

New rule and exceptions

The general rule is that French is to be markedly predominant on signage and in commercial publicity. The current regulations under the Charter include an exemption for recognized non-French trademarks.

As detailed in a previous post, the rules for external signage were changed in 2016 to permit the use of recognized non-French trademarks on external signage as long as there was sufficient French in the same visual field. There was no requirement that the “sufficient French” be equal in size to that of the non-French trademark.

The exemption for recognized non-French trademarks on external signage and in commercial publicity will now be limited to marks that are registered under the federal Trademarks Act. Further, French must be markedly predominant (as defined in a regulation under the Charter) on exterior signage and posters visible from the outside if they include

• a non-French trademark or
• the name of business which includes an expression taken from a language other than French.

These changes come into force three years after assent of Bill 96.

Sanctions for non-compliance

The OQLF may, among other things, ask for an injunction to order the removal of signage which contravenes the Charter at the expense of the offending party.

5. “Inscriptions” on products: labels, warranties, directions for use and other documents accompanying product

New rule and exceptions

As with signage, the current exemption permitting recognized English trademarks to be used on labels and on documents supplied with a product will now be limited to trademarks that are registered under the federal Trademarks Act. Further, if a non-French generic or a description of the product is included in the trademark, these words must also appear in French on the product or on a medium that is permanently attached to it. The changes in the trademark exemption for inscriptions come into force three years after assent of Bill 96, as with signage.

In addition, the non-French inscription cannot “be available on more favourable terms” than the inscription in French. This requirement comes into force on assent.

Sanctions for non-compliance

The OQLF may order a party which contravenes the Charter requirements for inscriptions to comply with the Charter or stop selling the product with the contravening inscription. Notice must be given in certain cases.

6. Contracts with the Québec “civil administration”

“Civil administration” is defined in Schedule I of the Charter to include the Government of Québec, Québec government agencies, corporations fully owned by the Government, most municipalities, school bodies, and bodies in the health and social services network, among others.

Contracts with the Québec civil administration

The new language rules for contracts with the Québec civil administration, particularly the sanction for non-compliance, were modified in Commission.

The basic rule remains the same: contracts must be in French subject only to limited exceptions including:

• Contracts may be in English only when the Québec civil administration is contracting with a party outside Québec.
• Certain contracts may be in French and English including loan contracts, financial instruments and contracts whose object is the management of financial risks, certain international and intergovernmental agreements and agreements with First Nations.

Sanction for non-compliance

A non-compliant contract or instrument (e.g. English-only when it should be in French) with the Québec civil administration may be held to be absolutely null, whether or not the contravention causes any prejudice, if the following three elements are all present:

1. An agency of the Québec civil administration is a party to the contract;
2. The provisions of the contract contravene any of sections 21 to 21.2 (the Charter rules on the language of contracts with the Québec civil administration); and
3. The contract has no foreign element.

Therefore, contracts with the Québec civil administration which have a foreign element should not be declared absolutely null for contravention of Charter language rules although fines may be imposed for non-compliance. The term “foreign element” is also used in article 3111 (choice of law governing a contract) of the Civil Code of Québec and interpretation by the courts in that context (looking to the residence or domicile of the parties, place where contract is concluded, etc.) should be useful in determining the scope of (iii).

If a contract is compliant with the Charter but the performance of the contract leads to a failure to comply, the Government of Québec may apply to a court for the “resolution, resiliation [termination] or suspension” of the contract. The court shall grant the Government’s request if the Government is able to show that this would be in the interest of maintaining the status of the French language in Québec although the court will also take into account the public interest in maintaining the contract.

7. Court pleadings

Court pleadings in English filed by legal persons, such as corporations, must include a certified French translation prepared at the legal person’s expense. The translation must be done by a licensed translator.