French Language Charter Reforms: Increased Requirements for Businesses in Quebec

On May 13, 2021, Quebec’s Minister Responsible for the French Language, Simon Jolin-Barrette, tabled Bill 96 – An Act respecting French, the official and common language of Québec (Bill 96) before the National Assembly. Bill 96 would amend Quebec’s Charter of the French language (Charter), commonly known as Bill 101, as well as several other statutes in Quebec’s legislative corpus, with the purpose of strengthening the use and presence of French within Quebec.
 
This bulletin provides a summary of Bill 96, which, if passed and assented to, would set out new obligations for businesses operating in Quebec.

LANGUAGE OF WORK

Bill 96 amends the Charter with respect to the language of work within businesses.

Francization Obligations for Businesses of 25 Employees

The Charter currently provides that businesses with 50 or more employees are subject to francization obligations, which consist of achieving and maintaining the generalized use of French at all levels. Bill 96 proposes to lower the threshold for the required number of employees from 50 to 25.
 
Bill 96 makes no substantial change to the francization process and maintains the principle that a business with 100 or more employees must establish a francization committee. However, under Bill 96, the Office québécois de la langue française (OQLF) would have the power to order a business with fewer than 100 employees to create a francization committee. Bill 96 also provides for mechanisms ensuring that francization committee members play an active role in obtaining and maintaining a business’s francization certificate. Furthermore, it imposes a duty on the committee to inform the business’s management and the OQLF of its work. For example, Bill 96 proposes that the francization committee’s work be documented by way of the committee’s meeting minutes, to be signed by each committee member and forwarded to the business’s management and the OQLF.

French Language Learning Services for certain Businesses of Five Employees

Under Bill 96, the OQLF would have the authority to select businesses with five to 24 employees to offer French language learning services. An offer made by the OQLF in this regard will be subject to a deadline by which the business must accept the terms thereof and the services to be provided. The business will then be required to provide these learning services to its employees who are unable to communicate in French. A business that rejects an offer made by the OQLF will be prohibited from entering into any contract with, or receiving any subsidies from, the Quebec Government, its departments, various government agencies, as well as municipal and school bodies. 

Work-Related Documents

Employers are already required to publish job postings, including with respect to transfers and promotions, in French. However, Bill 96 provides that if such postings are to be published in another language, they must also be published simultaneously in French, using transmission means of the same nature and reaching a target public of a proportionally comparable size as that of the posting in the other language.
 
While many employers already draft various employment-related documents in French, Bill 96 sets out to amend the Charter by specifying an employer’s obligations in this regard and provides for the following, among other things:

• An individual contract of employment that constitutes a contract of adhesion (e.g., a contract drawn up by the employer in respect of which an employee cannot negotiate the essential terms and conditions) or contains standard clauses may be drawn up in a language other than French at the express wish of the parties and only after the candidate has examined the French version of the document. If an individual contract of employment does not constitute a contract of adhesion or contain standard clauses, then the contract may be drawn up exclusively in a language other than French at the express wish of the parties.

• Employers must use French in their written communications to all or part of their staff, a specific worker or an association of workers.

• Employment application forms, documents relating to employment conditions (e.g., employee manuals, psychological harassment policies or any other employer policy) and training documents for staff must be in French. If these documents are available in English, they must also be made available in French on terms that are at least as favourable as those for the documents in English.

Finally, where participants in a group covered by a group insurance or group annuity contract are all workers having an employment relationship with one or more employers, the insurer will be required, among other things, to issue a copy of the policy drawn up in French to the participant; the same applies to insurance certificates to be distributed to these workers.

Language Requirements

The Charter currently prohibits employers from making the knowledge of a language other than French a specific condition for employment, unless such knowledge is required to carry out the duties of that employment. Bill 96 imposes an additional burden on employers in that they must first take all reasonable means to avoid requiring the knowledge, or a specific level of knowledge, of a language other than French for a person to keep or obtain a position, including through recruitment, hiring, transfer or promotion.
 
Bill 96 sets out that an employer will be deemed to have taken all reasonable means to avoid requiring knowledge or a specific level of knowledge of a language other than French if the following three conditions are met:

• The employer has assessed the actual language needs associated with the duties to be performed

• The employer has made sure that the language knowledge already required from other staff members was insufficient for the performance of those duties

• The employer has restricted as much as possible the number of positions involving duties whose performance requires knowledge or a specific level of knowledge of a language other than French

Protection against Discrimination relating to Language of Work

Other than protections afforded by the Charter of human rights and freedoms against language-based discrimination, Bill 96 provides that every employee is entitled to a work environment free of discrimination or harassment where the employee has no or little command of a language other than French, claims the possibility to express himself in French, or had demanded that a right arising from obligations pertaining to language of work be respected. Employers must therefore take reasonable means to prevent such discrimination or harassment and, if such conduct is brought to their attention, make it cease.
 
Employees may file a complaint with the CNESST or their union regarding any breach of this obligation within a two-year period following the most recent occurrence of the conduct in question. Complaints may be heard by the Administrative Labour Tribunal, Quebec’s Human Rights Tribunal (if applicable), or a grievance arbitrator if the workplace is unionized.

Remedy Against Prohibited Practices

While the Charter already provides for a remedy against linguistic requirements that are considered unjustified, Bill 96 sets out a prohibited practice with respect to employment, in order to protect employees against reprisals for exercising a right under the Charter. Bill 96 prohibits employers from dismissing, laying off, demoting, or transferring an employee, and from taking reprisals against or imposing any other penalty on an employee, for the sole reason that the employee is exclusively French-speaking or does not have sufficient knowledge of a given language other than French, or for any of the following reasons:

• The employee has demanded that a right arising from the Charter provisions pertaining to the language of work be respected

• To deter the employee from exercising such a right

• Because the employee does not have knowledge or a specific level of knowledge of a language other than French, where the performance of the duty does not require it

Employees may file a complaint regarding any such prohibited practice with the CNESST or, in a unionized workplace, with their union. A complaint must be filed within 45 days of the occurrence of the event in question and will be heard by the Administrative Labour Tribunal, or a grievance arbitrator if the workplace is unionized.

LANGUAGE OF BUSINESS

Requirements pertaining to contracts of adhesion and contracts containing standard clauses

Among other things, Bill 96 amends the rule according to which parties may enter into a contract of adhesion (standard contract) in a language other than French, if that is their express wish. The amendments set out in Bill 96 provide that, prior to consenting to and being bound by a contract of adhesion drafted in a language other than French, and before consenting to receive related documents in that other language, the adhering party must examine the French version of the contract.
 
Under Bill 96, a contracting party would be expressly prohibited from requiring from the adhering party any sum for the preparation of a French version of a contract of adhesion or its related documents.
 
Bill 96 also proposes to allow the adhering party to invoke the nullity of a contract of adhesion if the employer failed in its obligation to bring the French version of the contract to the attention of the adhering party. Furthermore, it provides for the presumption that a failure of this obligation is prejudicial to the adhering party, and that the adhering party may invoke this injury in its action for nullity.
 
Employers in Quebec who employ independent contractors and consultants through service contracts should pay close attention to this amendment, as service contracts may, in some cases, be considered as contracts of adhesion or contracts with standard clauses, and therefore be subject to this new rule.

Trademarks on public signs

Bill 96 proposes a notable change to the rules pertaining to trademarks on outdoor public signs. The standard for assessing whether a trademark in a language other than French on an outdoor public sign is compliant with the Charter would go from the French content on display being “sufficiently present” to being “clearly predominant”. Should the proposed change be adopted, many businesses may have to reassess their outdoor public signs to determine whether they comply with these new rules.

LEGAL PUBLICITY OF ENTERPRISES

Bill 96 sets out amendments to various other statutes, including the Act respecting the legal publicity of enterprises, to impose a new requirement for the disclosure of ongoing information that would enable the OQLF to identify businesses in need of French language learning services. Therefore, a declaration of registration filed by a business that has between five and 24 employees would have to disclose, in addition to the number of employees whose workplace is located in Quebec, the proportion of those employees who are unable to communicate in French.

PENALTIES

Bill 96 proposes a significant increase in the penalties faced by businesses that contravene the Charter, as well as those that apply to directors and officers of contravening businesses.
 
More specifically, Bill 96 provides that if an offence continues for more than one day, it will constitute a separate offence for each subsequent day. In practice, this means that when a business commits an offence under the Charter, it becomes liable to a fine varying from C$3,000 to C$30,000 per day, and its directors and officers are also liable to fines to be determined according to the number of days during which the offence in question was committed. Fines for directors and officers may range from C$1,400 to C$14,000 per day.
 
Furthermore, fines are doubled for a second offence and tripled for all subsequent offences. Bill 96 also limits the application of this rule to a specific period (namely a five-year or two-year period following a conviction for the prior offence according to the fine imposed by the court for the prior offence) and delineates the circumstances of its application.
 
For more information, please contact:
 
Natalie Bussière            514-982-4080
Annick Demers              514-982-4017
Francis L. Racine           514-982-4149
 
or any other member of our Employment & Labour or Marketing & Advertising groups.