Bill 96: Impacts on the Real Estate and Financial Services Sectors

On May 24, 2022, the National Assembly of Quebec passed Bill 96, An Act respecting French, the official and common language of Québec (Act), which sets out to confirm the status of French as the official language and the common language of Quebec. The Act amends the Charter of the French Language (Charter) as well as several other Quebec laws, by requiring the civil administration to use the French language and ensure its protection in an exemplary manner.

Several provisions of the Act have come into force since its assent on June 1, 2022, notably in the labor and employment sector. For further information on the matter, please refer to our May 2022 Blakes Bulletin: New French Language Requirements for Employers: Are You Ready?
In this bulletin, we provide an overview of the provisions of the Act that pertain more specifically to the real estate and financial services sectors, as well as some of their operational impacts, to understand how businesses and professionals working in these sectors will have to adapt their practices to comply with the Act.

LANGUAGE OF COMMERCE AND BUSINESS

Since June 1, 2022, businesses offering goods or services to consumers are required to respect the consumer’s right to be informed and served in French. While the right for consumers to demand service in French has been guaranteed under the Charter for many years, the Act now introduces a similar obligation for businesses and creates the possibility for a civil action to be brought directly against them should they fail to meet this obligation.
 
Similarly, businesses that offer goods and services to a public other than consumers must inform and serve the public in French. These amendments to the Charter impose the use of French as the language of commerce and business, thereby transforming the interactions between businesses and their customers, whether they are individuals or other businesses.
 
Various penalties may apply for breaches of these new obligations, including fines, which have increased since the Act came into force. Fines now range from C$3,000 to C$30,000 for legal persons (up from a range of C$1,500 to C$20,000) and are now to be doubled for a second offence and tripled for any subsequent offence. Moreover, the minister may even suspend or revoke a permit or other authorization of the same nature if the business repeatedly contravenes the provisions of the Charter.
 
Other amendments to the Charter are closely related to the imposition of French as the language of commerce, such as the obligation to provide all commercial communications (such as brochures, leaflets, catalogues, purchase orders, invoices, receipts, instructions for use, guarantee documents and acquittances) in French, regardless of the medium. This obligation has been in force since June 1, 2022. It should be noted that such communications may be made in a language other than French if the French version is available on terms that are at least as favourable. Moreover, certain amendments pertaining to the language of commerce are to come into force at a later date. For example, the obligation for French to be markedly predominant on the exterior signage of businesses is set to come into force on June 1, 2025.

RESIDENTIAL REAL ESTATE AND CO-OWNERSHIP

Since June 1, 2022, contracts of sale or exchange involving mainly residential properties with fewer than five dwellings or a fractional ownership in a mainly residential property held in co-ownership are to be written in French. This new obligation also applies to promises to enter such contracts, as well as to preliminary contracts and memoranda for residential properties, existing or planned, that are sold by the builder or a developer within the meaning of the Civil Code of Québec (Civil Code).

Such contracts and other documents may be drafted in a language other than French, provided that this is the express wish of the parties involved. However, if these documents are to be published in the Land Register, they must, as of September 1, 2022, be drawn up in French or translated into French if they are in English.

Similarly, since June 1, 2022, declarations of co-ownership, as well as amendments to acts constituting co-ownerships and to descriptions of the fractions of a co-ownership, must be presented exclusively in French in the Land Register. However, an exception is provided for documents that amend or correct a declaration or act that was published exclusively in a language other than French prior to June 1, 2022.

A contract or any other document that is drafted in a language other than French in contravention of the new rules will be declared null. However, this nullity is relative; the party invoking the nullity of such contract or other document is required to prove that it has suffered injury because the document in question was not drawn up in French. Alternatively, a party to a contract may apply for a reduction of its equivalent obligation rather than the annulment of the contract. For published documents, there also exists the possibility of refusing or challenging the publication.

It should also be noted that as of June 1, 2023, contracts referred to above that are contracts of adhesion (agreements to be bound) will also have to comply with new requirements aiming to protect the right of the adhering party to do business in French, as discussed further below.

PUBLICATION OF RIGHTS

As of September 1, 2022, applications for registration with the Land Registry Office (Land Registry), for immovable rights and property, and with Quebec's register of personal and movable real rights, the Registre des droits personnels et réels mobiliers (RDPRM), for movable rights, must be drawn up exclusively in French. Furthermore, all documents that are to be provided with an application for registration and that are written in a language other than French must be accompanied by a translation authenticated in Quebec.

Notwithstanding the above, and as noted in the previous section of this bulletin, an act amending or correcting a document (or act) submitted prior to June 1, 2022, and its accompanying documents, may be submitted to the Land Registry in a language other than French, if the original document was also submitted in a language other than French. However, this exception applies only to registrations in the Land Register. While what constitutes an "act amending or correcting" remains to be clarified, it would be prudent in any case to opt for a restrictive interpretation of the acts included within the scope of this exception.

These amendments to the Civil Code introduced by the Act have far-reaching consequences; on the one hand, these new requirements raise issues with regard to the choice of the language of a contract by the parties involved. On the other hand, an application for registration which is not submitted in French may be refused by the Land Registry Office and the RDPRM. Nevertheless, the fact that an application for registration is accepted by the registrar does not constitute indisputable proof of its validity or compliance with the applicable laws and, ultimately, the enforceability of the published rights against third parties. It is therefore the responsibility of the grantors and beneficiaries of the published rights to ensure that registration applications comply with the requirements of the Act. It should be noted that, prior to the passing of the Act, several issues pertaining to the application of the new requirements of the Act to registrations that are intended to correct or amend rights already published in the RDPRM in a language other than French were brought to light; it is regrettable that the legislator chose to limit this exception only to registrations in the Land Register.

Should matters involving these new provisions come before the courts, it is hoped that the application of the new provisions and the consequences of possible infringements on the rights published in the various registers will be weighed carefully against the very purpose of the publication of rights, which is to enable persons to set up their rights against third persons and to determine their rank.

PLEADINGS

The Act also provides that as of September 1, 2022, a French translation certified by a certified translator must accompany any pleading drawn up in English that emanates from a legal person. Without such translation, a pleading may not be filed.

However, the provisions of the Act pertaining to the certified translation of pleadings filed in a language other than French have been the subject of an application for judicial review. On August 12, 2022, the Superior Court of Quebec (Court) issued a decision on the application for suspension, which was granted. Consequently, these provisions are suspended until the Court renders its final judgment on the matter, which is expected in November.

CONTRACTS WITH THE CIVIL ADMINISTRATION

As of June 1, 2023, contracts entered into with the civil administration are to be drawn up exclusively in French. The Charter provides a broad definition of "civil administration" that includes, among other things, the Government of Quebec and its departments, government bodies, bodies whose personnel is appointed under the Public Service Act, bodies to which the Government of Quebec appoints the majority of members or directors, municipal bodies, public transit authorities, school bodies, as well as bodies in the health and social services network.

The Act sets out certain exceptions, such as for when the civil administration enters into a contract outside Quebec, or for certain contracts that may be drafted in both French and another language, such as loan contracts, financial instruments and contracts whose object is the management of financial risks, contracts for the purchase or sale of options and futures contracts.

The penalty applicable to a contract entered into with the civil administration that is not drafted exclusively in French (unless an exception applies thereto) is unequivocal: it will be absolutely null, whether or not the contravention causes injury.

It should also be noted that as of June 1, 2023, certain communications with the civil administration, including written documents sent to an agency of the civil administration by a legal person or enterprise to obtain a permit or other authorization of the same nature, or a subsidy or other form of financial assistance, must be drawn up exclusively in French. Similarly, any service rendered to the civil administration by a legal person or an enterprise must be in French. The Minister may, after obtaining the opinion of the Office québécois de la langue française, suspend or revoke a permit or other similar authorization provided to an enterprise found to have repeated contraventions.

CONTRACTS OF ADHESION

As of June 1, 2023, contracts of adhesion (agreements to be bound) and all related documents will also have to be drawn up in French. Certain exceptions apply, notably for contracts used in relations with persons outside Quebec. Moreover, in general, the parties to a contract of adhesion may be bound only by its version in a language other than French if, once the French version has been handed to the adhering party, such is their express wish. In practice, to avoid any ambiguity, it will be essential to put in place new measures to demonstrate that the French version of the contract has indeed been handed to the adhering party and that the latter has nevertheless opted for the English version.

Consequently, a mere language clause in a contract of adhesion drafted in English will no longer suffice to comply with the provisions of the Charter. Failure to comply with these new requirements may result in the contract being declared null or in the reduction of its equivalent obligation. It should be noted that the adhering party invoking the nullity of a contract will not be required to prove that the contravention causes them injury.

CONCLUSION

Bill 96 brings significant amendments to the Charter and other key legislation in Quebec, many of which have already had, or will soon have, concrete impacts on the real estate and financial services sectors. As several of these amendments are already in force, it will be interesting to see how all these changes interact as they come into effect. More importantly, it will be essential to see how the real estate and financial services sectors adapt to this new reality. For example, will professionals choose to draft bilingual documents and contracts? Or will they instead draw up documents and contracts in French, accompanied by certified translations?

Given that every sector will be affected by these changes, businesses should review their internal practices to ensure their compliance with these new legal obligations.

For further information, please contact:

Jenny Ross                                 514-982-4112
Viorelia Guzun                           514-982-4087

or any other member of our Commercial Real Estate or Financial Services groups.