Bill 96 And The Charter Of The French Language Table Of Amendments May 30, 2022 (English)

1 Last updated: May 30, 2022 Québec French-language Requirements Affecting your Commercial Activities: Before and After Bill 96 1 SUBJECT MATTER BEFORE BILL 96 2 AFTER BILL 96 IN FORCE Conducting Business 1. Quebecers’ right to be informed and served in French Consumers have the right to be informed and served in French. Both consumers and non-consumers have the right to be informed and served in French. Businesses have an explicit obligation to respect such right and to offer goods and services to consumers, non-consumers, and agencies of the civil administration in French. On the day of assent. 3 2. The language of contracts Contracts pre-determined by one party, contracts containing standard clauses, and the related documents, must be drawn up in French. Before Bill 96, parties could execute English-only agreements as long as they contained a language clause whereby the parties agreed that only an English version would be drafted and executed. All contracts of adhesion (non-negotiable contracts that are pre-determined by one party) will need to be drawn up in French. 4 Businesses will be required to present a French version of such contracts before an adhering counterparty may express a wish to be bound by a version in another language. The insertion of a language clause in contracts of adhesion will therefore no longer be sufficient. External clauses referred to in French contracts of adhesion will not be binding on an adhering party unless they are in French. 5 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 In 2023, one year following the day of assent. 1 Note that this document does not cover Québec employment-related French-language obligations under the Charter of the French Language (the “Charter”) 2 Note that the existing Regulation respecting the language of commerce and business contains several exceptions to the rules of the Charter of the French Language and we do not yet know to what extent those provisions will be amended/replaced under Bill 96. 3 The day of assent will likely be in the days following May 26, 2022, which is the day that Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), was adopted in Québec’s National Assembly. 4 A limited number of contracts are exempt from this rule, including contracts used in extra-provincial relations, loan contracts and financial instruments. 5 The language requirement in respect of external clauses comes into force on the day of assent. 2 Last updated: May 30, 2022 SUBJECT MATTER BEFORE BILL 96 2 AFTER BILL 96 IN FORCE documents attached to such contract can also be exclusively written in that other language. The Charter no longer imposes a language requirement in respect of contracts containing standard clauses. 6 3. Written communications with civil administration The civil administration shall use French in its written communications with legal persons established in Quebec. In addition to using French, it may also use another language. This rule will also apply to the civil administration’s written communications with individual enterprise operators. Services given by enterprises to an organization that is part of the Quebec civil administration must be rendered in French. In 2023, one year following the day of assent. 4. Entering into agreements with Quebec civil administration Contracts entered into by Quebec civil administration, including related sub-contracts, may be drawn up in a language other than French when such contract is entered into with a party outside Quebec. Contracts entered into with Quebec civil administration including related sub-contracts will have to be drawn up exclusively in French with few limited exceptions, regardless of whether the other party is operating in Quebec or not. Several other written documents sent to 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 language contract. In 2023, one year following the day of assent. 5. Applications to government bodies The Charter was silent in respect of documents relating to government applications. In practice, these documents could be sent in English, and English versions of various government forms were available for such purpose. Written documents sent to government agencies and to agencies of the civil administration by businesses in order to obtain a permit, authorization of the same nature, subsidy, or financial assistance must be drawn up exclusively in French. Even before Bill 96 was adopted, various government agencies removed the English versions of government forms used by businesses from their websites. In 2023, one year following the day of assent. 6 Note, however, that all contracts entered into with Québec consumers must be drawn up in French pursuant to Québec’s Consumer Protection Act. 3 Last updated: May 30, 2022 SUBJECT MATTER BEFORE BILL 96 2 AFTER BILL 96 IN FORCE Labelling, Marketing, Public Signs and Advertising 6. Websites, marketing and communications Catalogues, brochures, folders, commercial directories and any similar publications must be drawn up in French. This rule was interpreted broadly to apply regardless of the medium used and to other documents of the same nature. For example, the rule applied to websites, email newsletters and social media (with specific administrative guidance regarding social media). In practice, this requirement applied only to businesses that have a physical establishment in Québec. 7 Bill 96 confirms past interpretations as to scope and clarifies that versions of such media in languages other than French may not be provided on more favourable terms than the French version. On the day of assent. 7. Packaging and labelling requirements 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. Bill 96 only clarifies 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 this rule was already interpreted this way before Bill 96. On the day of assent. 8. The trademark exception Trademarks recognized under Canadian trademark legislation may appear on packaging, labelling, public signs and posters exclusively in a language other than French, unless a French version has been registered. “Recognized” trademarks was interpreted as including “common law” trademarks, including trademarks for which an application was pending (i.e. up to its registration). The trademark exception can no longer be relied upon in respect of unregistered trademarks and trademarks pending registration. It can only be relied upon in connection with registered trademarks, provided that no corresponding French version appears in the Canadian Trademarks Database (which would include pending trademark applications). Packaging and labelling. If the trademark being used contains a generic term or description of the product In 2025, three years following the day of assent. 7 Companies that do not have a brick-and-mortar location in the province may nevertheless be deemed to have a “physical establishment” in Québec pursuant to a fact-specific analysis. For example, having employees in Québec may be sufficient to trigger the application of this rule. 4 Last updated: May 30, 2022 SUBJECT MATTER BEFORE BILL 96 2 AFTER BILL 96 IN FORCE For public signs and posters visible from outside of a building, a sufficient presence of French was required. 8 itself, such generic term or description must also be indicated in French in a permanent manner. Public signs and posters. Where a trademark in a language other than French is displayed on a public sign or poster that is visible from outside, the presence of French must be “markedly predominant” over the trademark that is in another language. 9 Potential Risks and Consequences of Non-Compliance 9. Consequences of non-compliance The Charter only provides for administrative fines (from $1,500 to $20,000, doubled for a second offence) and the potential suspension or withdrawal of the francization certificate, if applicable. 10 There is a risk of reputational damage in Québec relating to non-compliance with the province’s French language obligations. Bill 96 increases current fines and introduces additional potential risks and consequences of non- compliance, including:  Fines for non-compliance. The fines for non- compliance with the Charter will increase to $3,000 to $30,000 for businesses. Fines will be continue to be doubled for second offences, but also tripled for subsequent offences. Each day an offence persists is a separate offence.  Director liability. Directors are assumed liable for any Charter offense 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 injury by contravening the provisions of the Charter may be annulled on the application of the person who suffers the injury. 11 The Generally on the day of assent. 8 This requirement was generally met by adding a generic or descriptive French word to qualify the trademark, such as “café” or “boutique”. 9 “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. 10 Which suspension/withdrawal could impact a supplier’s ability to supply to the government of Quebec. 11 In certain instances, contracts of adhesion that were not presented in French first may be declared absolutely null even if they do not cause any injury. 5 Last updated: May 30, 2022 SUBJECT MATTER BEFORE BILL 96 2 AFTER BILL 96 IN FORCE injured party may also opt for requesting a reduction in its obligations in proportion to the damages that such party 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 québécois de la langue française (the governmental body responsible for ensuring Charter compliance) 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.