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BILL 96 – TOP 10 IMPACTS OF THE REVISED CHARTER OF THE FRENCH LANGUAGE ON YOUR
BUSINESS AND WHEN TO EXPECT IMPLEMENTATION OF SUCH REVISIONS

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* BILL 96 – Top 10 Impacts of the Revised Charter of the...

BILL 96 – TOP 10 IMPACTS OF THE REVISED CHARTER OF THE FRENCH LANGUAGE ON YOUR
BUSINESS AND WHEN TO EXPECT IMPLEMENTATION OF SUCH REVISIONS

May 19, 2021 Business Law Bulletin 11 minute read
Enda Wong, Émile Catimel-Marchand, Jonathan Kalles, Nicholas Yanakis

Changes to the Charter of the French Language are coming. It is not a question
of “if” but “when”- Although not yet adopted, the proposed reform to Québec’s
language laws is sure to impact the day-to-day operations for many companies
doing business in Québec or otherwise, interacting with Québec counterparties.
Here is a curated top ten list of such potential impacts, followed by McMillan
Vantage’s perspective on the likely timeline and process of adoption.

On May 13, 2021, Québec’s CAQ Government tabled An Act respecting French, the
official and common language of Québec (“Bill 96”), a proposed reform of the
Charter of the French Language (the “CFL”, also commonly known as Bill 101. In
this bulletin, we refer to the CFL, as amended by Bill 96, as the “MCFL”) and
other legislation dealing with the use of the French language in the province.
Bill 96 seeks, among other things, to re-emphasize the formal recognition of
French as the only official language of Québec and promote the presence of the
French language in Québec, including in the fields of education, public
administration, and business. Businesses should most particularly be aware of
the following:

Impact when dealing with the public and the Government

1. Your public signs need to include (much) more French content

There is currently a requirement for French to be markedly predominant on public
signs, posters and in commercial advertising.[1] Despite this requirement and
following a few years of litigation,[2] companies were allowed to publicly
display content in another language, such as their name, where such content was
a recognized trademark and was accompanied by “sufficient” French content.[3]
This was typically done by including a French descriptor to accompany the name
of the storefront (e.g. café XYZ, électronique ABC, etc.)

The MCFL now specifies that this French presence is not enough on its own, but
also needs to be “markedly predominant” when a trademark appears in a language
other than French and is visible from outside a business’ premises. The
expression “markedly predominant” is defined by regulation and typically means
twice as large or otherwise carrying more of a visual impact.[4]

2. Your customers’ rights to be served in French now comes with teeth

Although the CFL always provided for a consumer’s “right to be informed and
served in French,”[5] the MCFL now also states that companies must inform and
serve their non-consumer clients in French as well.[6]

In order to enforce this, any aggrieved party could notably seek injunctive
relief (except against companies with 5 employees or less).[7] The OQLF (the
regulatory authority in Québec authorized to oversee compliance with the CFL)
would also be put in charge of a complaint mechanism to address any failure to
comply with the provisions of the MCFL, including the above. In some cases, the
OQLF has been given the right to open a complaint record, notify the complainant
accordingly and, at the complainant’s request, inform him of the processing of
the complaint and, if applicable, of the compliance measures to be taken.

3. Your Company’s Pleadings before Québec Courts should now be in French or be
translated into French

Any legal person that finds itself a party to legal proceedings should now
either draft their pleadings in French or accompany them with a certified
translation (at their own cost).[8] International Businesses engaged in
litigation in Québec might have to increasingly rely on their Québec counsel’s
French draft of the pleading without being able to directly review and comment
on the pleading, or even review for accuracy to ensure minimization of
miscommunications, or bear the cost of a translation. As currently drafted, Bill
96 does not provide for any exception to this rule, even where all parties to a
proceeding would prefer to proceed in English.

In addition, whereas any party can currently request that any judgment rendered
by a court of law (or decision rendered by a body exercising quasi-judicial
functions) be translated into French or English,[9] any judgment rendered in
English by a court of law will now be automatically translated, where that
judgment concludes a proceeding or where it is of public interest. Any other
judgment rendered in English is also translated into French at the request of
any person. Any other judgment rendered in French can also be translated into
English at the request of a party.[10] The cost of translating such judgments
will be borne by the State.

4. You will need French-speaking staff (or counsel) when interacting with or
acting as service provider for the Government or its agencies

Bill 96 introduces a renewed drive for the Government and its various arms to
“use the French language, promote its quality, ensure its development in Québec
and protect it in an exemplary manner.”[11] This generally means a greater
emphasis on using only French within the Government and in contractual dealings
with the Government.

Specific new contexts where French must exclusively be used include in respect
of (i) any application by a legal person to obtain a permit or other
authorization, including the accompanying documentation,[12] and (ii) the
request and rendering of services by a legal person to the Government.[13]

Furthermore, repeated contravention of the MCFL could result in suspension or
revocation of a permit or other authorization issued by the Government.

Impact on your contracts and transactions

5. Your choice of language provisions will no longer be sufficient in many
cases

Under current legislation, there is an obligation to draft certain contracts in
French, particularly those imposed by one party or containing standard clauses.
Counterparties could however expressly elect to draft them in another language,
instead of French.[14] This has resulted in a practise whereby some companies
never produce a French version of their contracts, but rely instead on a “choice
of language” provision, stating that both parties expressly chose English.

This will no longer be possible, as the choice of a language other than French
will now only be valid where the signatory was presented with a French version
and given the opportunity to examine it, but nonetheless chose another language.
Where a party chose the French version, it is also prohibited to send such party
a document related to the contract in a language other than French.[15] It will
not be permitted to charge a party for the French version of the contracts
either.

Similar obligations for contracts to be drafted in French will also apply in a
consumer context[16] and regarding certain real estate contracts.[17]

Finally, where previous contravention to such French availability rules could
only result in a fine, the MCFL now includes specific rights to have the
contract voided for infractions to the above. The aggrieved party may also elect
to maintain the contract but seek damages.[18] If this change is adopted,
Businesses will need to be particularly careful to adhere to the above rules, as
there is a significant risk that their contracts may be deemed unenforceable
otherwise.

6. You will have to register security in French and enforce it in the same
language

Bill 96 contains proposed changes to the Civil Code of Québec, such that parties
seeking to register security on movable (personal) property in Québec or enforce
such security would have to use French.[19]

Indeed, under Québec law, security (typically in the form of a hypothec) must be
registered in certain public registries in order to become valid (opposable
against third parties). In the case of movable (personal) property, this
registry is the Register of Personal and Movable Real Rights (“RPMRR”). Contrary
to the Personal Property Security Registries existing in Canada’s other
provinces, registration at the RPMRR is done via a form requiring a full
description of the assets to be charged in order to be valid, as opposed to
checking a box with a general description of the category of assets being
charged. This description is typically taken directly from the security
document. As it is currently drafted, Bill 96 would require such forms (and the
resulting registrations) to be drawn up in French only.

Québec entities operating in more than one jurisdiction, or multinationals
operating in Québec, and seeking to obtain financing will typically negotiate
such financing documents in English, including a mutually agreed upon
description of the assets on which they grant security. The new requirements
under Bill 96, if adopted might cause additional delays and costs to Québec
entities seeking to access the world’s financing market. Extra care will have to
be taken to ensure that nothing is “lost in translation”, to avoid exposing
creditors to any potential risk of a miss-match between their financing
documents and their registration.

Finally, any documents that must accompany the registration forms discussed
above must also be drawn up in French or accompanied by a translation. This
could notably include hypothecary notices required in order to enforce security
(or appoint a receiver in Québec).[20]

Impact on your labor relations

7. You will now be required to provide (much) more employment related
documentation in French and (much) less emphasis on knowledge of a language
other than French as a requirement for employment

Under its current terms, the CFL[21] already provides that written
communications with staff are to be in French, specifically, those related to
the employee’s employment conditions. The MCFL will broaden the scope of this
requirement to include training documents as well as employment application
forms.

With respect to job offers, the MCFL requires employers who intend to post a job
offering to do so in French, and, to the extent that this advertisement is
published in another language, to ensure that it uses the same means of
transmission and reaches the same public target of a proportionally comparable
size. In contrast, the CFL[22] only provides that employers publishing
advertisements in a daily newspaper in a language other than French had to
simultaneously publish those advertisements in a daily newspaper in French, with
at least equivalent display.

Regarding knowledge of a language other than French as a requirement for
employment, the MCFL provides, as does the CFL, that employers cannot rely on
knowledge of a language other than French in hiring employees, unless the nature
of the duties requires such knowledge. Where the MCFL breaks new ground is in
the reasonable means that an employer will have to justify knowledge of another
language as a hiring criterion. The MCFL[23] will require every employer to
demonstrate that it has assessed the actual language needs associated with the
duties to be performed for a certain position, ensured that the language
knowledge already required from other staff members was insufficient for the
performance of those duties; or restricted to the maximum extent, the number of
positions involving duties whose performance requires knowledge or a specific
level of knowledge of a language other than French.

8. You will now be subject to Francization obligations where you have 25
employees or more (down from 50) and sometimes as few as 5 employees

Francization is an existing process imposed on Businesses with the aim of
ensuring sufficient French presence in the workplace. It notably requires
certain actions such as administrative and management processes, committees and
reports to ensure such presence in many spheres, like internal communications,
work tools, hiring, etc. Enterprises with 25 to 49 employees will now be subject
to Francization obligations under the MCFL and will be required to have a
Francization Certificate at the same level as companies with 50 to 99 employees
(as is currently the case under the CFL).[24]

The OQLF may also identify Businesses with as few as 5 employees in certain key
sectors, to which it would offer French language learning services provided by
Francisation Québec.[25]

These measures will result in a stricter framework for the hiring and training
of employees so that it is more focused on the use of the French language in the
workplace. Employees will therefore have to comply with these measures not only
to obtain a position within a company, but also to maintain it.

It should also be noted that enterprises under federal jurisdiction, such as
banks, airports, and marine and rail transportation companies, would be subject
to the application of Bill 96. Although Québec’s constitutional authority to
impose this is uncertain, the federal government has showed some openness to the
proposal.

Other Impacts

9. You will be subject to increased penalties for non-compliance

Fines for legal persons who commit infractions to the MCFL have been amplified
as follows.[26]

CFL MCFL First offence $1,500 – 20,000 $3,000 – 30,000 Second Offence $3,000 –
40,000 $6,000 – 60,000 Subsequent Offences $9,000 – 90,000

In addition, where an offence under the MCFL continues for more than one day, it
constitutes a separate offence for each day it continues.[27] Directors are
also presumed to have knowledge of the offence and could incur personal
liability accordingly.

10. If you were looking for guidance in the MCFL regarding language obligations
in respect of websites, social media and other 21st Century innovations, you
will be sorely disappointed

Given the nearly 100 pages occupied by Bill 96, and given that this is the first
major update of the CFL in nearly two decades, one would think that the
opportunity to modernize the legislation and clarify obligations with respect to
21st century innovations and technology would be of some relevance, however, the
MCFL largely fails to provide any further clarifications with respect to French
language requirements in respect to these aspects. Rather, Bill 96 enshrines the
previous “medium agnostic” approach currently in use.[28] For example, (i)
websites must have French versions because they are considered to be similar to
catalogues under the CFL (despite the limitations of such an analogy), and (ii)
advertising on social media is still considered as advertising and must be in
French. Nowhere in the MCFL is this made explicit; however and as such, the
status quo of using the OQLF’s guidelines to “read into” the legislation
remains.

With that said, you are likely wondering, when will the MCFL come into force and
what will be the scope of amendments made prior to adoption?

The McMillan Vantage Perspective

The Legislative Process

Bill 96 is currently in its initial phase and will next be referred to a
parliamentary committee for consultation, where witnesses will be invited. The
parties will negotiate the number and types of witnesses to call. Following
conclusion, the Government will move to the “Passage in Principle”, or the
second reading, where Members of the National Assembly of Québec (“MNA”) will
debate the spirit and principle of Bill 96 before the National Assembly. This
will be followed by the “Committee Stage”, where the bill is studied by the
committee, who will examine each clause of Bill 96. At this point, Government or
opposition MNAs will propose amendments to Bill 96, which are voted on by
committee members. Finally, the updated and amended bill will be returned to the
National Assembly, which votes on the committee’s report and moves to pass the
bill.

Political Analysis

It is possible but unlikely that committee hearings will begin before the end of
the session (June 11, 2021). More likely, we expect hearings in the fall, with
Bill 96 becoming law sometime before the end of the year. The CAQ has a majority
in the National Assembly and there is no question on whether Bill 96 will pass.
All three opposition parties will offer a number of amendments; the Government
may be open to negotiating on some specific articles but the main components of
Bill 96 are likely to remain substantially the same.

The opposition Québec Liberal Party (LPQ) and its new leader Dominique Anglade
are struggling with francophone voters, especially outside of Montreal, and will
need to demonstrate support for the strengthening of the French language. Look
for them to try to make constructive proposals and amendments while also trying
to reassure their Anglophone voter-base. Québec Solidaire can be expected to try
to find ways to support the spirit of Bill 96 and work to improve certain
elements. The Parti Québécois is in the most precarious position; they have
always seen themselves as the only true defenders of the French language, and
they will try to demonstrate that the CAQ’s bill is too weak to protect the
Québec’s French majority. However, they currently sit 4th in the polls and their
leader Paul St-Pierre Plamondon has 4% support for best future Premier.

The CAQ is currently leading by more than double on their closest opponents, the
QLP, in the most recent polling, with an election less than 18 months away.
Their objective is to strengthen the perception of them as the party most able
to secure Québec identity, and much as they did with Bill 21 on religious
symbols, they have proposed measures that place them between the Liberals and
the Parti Québécois. With a positive employment and economic forecast coming out
of the pandemic and public finances in relatively stable position (a return to a
balanced budget should not be far away), the CAQ is hoping to put these issues
behind them and plan for an election campaign with a number of successes on its
resumé.

[1] CFL, s. 58.
[2] Magasins Best Buy ltée v. Québec (Procureur général), 2015 QCCA 747
[3] Regulation respecting the language of commerce and business, CQLR c C-11, r
9, s. 25 ff.
[4] Regulation defining the scope of the expression “markedly predominant” for
the purposes of the Charter of the French language, CQLR c C-11, r 11
[5] CFL, s. 5.
[6] MCFL, s. 50.2.
[7] MFCL, s. 204.16
[8] MCFL, s. 9.
[9] CFL, s. 9.
[10] MCFL, s. 10.
[11] MCFL, s. 13.1
[12] MCFL, s. 21.9.
[13] MCFL, s. 21.11
[14] CFL, s. 55
[15] MCFL, s. 55.
[16] Bill 96, s. 151
[17] MCFL, s. 55.1
[18] MCFL, ss. 204.15 ff.
[19] Bill 96, ss 125-126.
[20] Hypothecary Notices
[21] MCFL, s. 41
[22] CFL, s. 42
[23] MCFL, s.46.1
[24] MCFL, ss. 136 ff.
[25] MCFL, s. 149.
[26] CFL, s. 205 and MCFL, ss. 205-206
[27] MCFL, s. 208
[28] MCFL, s.52

by Enda Wong, Emile Catimel-Marchand, Jonathan Kalles and Nicholas Yanakis.

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice.
Readers are cautioned against making any decisions based on this material alone.
Rather, specific legal advice should be obtained.

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Accessibility Statement
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Accessibility StatementCompliance status

We firmly believe that the internet should be available and accessible to anyone
and are committed to providing a website that is accessible to the broadest
possible audience, regardless of ability.

To fulfill this, we aim to adhere as strictly as possible to the World Wide Web
Consortium’s (W3C) Web Content Accessibility Guidelines 2.1 (WCAG 2.1) at the AA
level. These guidelines explain how to make web content accessible to people
with a wide array of disabilities. Complying with those guidelines helps us
ensure that the website is accessible to blind people, people with motor
impairments, visual impairment, cognitive disabilities, and more.

This website utilizes various technologies that are meant to make it as
accessible as possible at all times. We utilize an accessibility interface that
allows persons with specific disabilities to adjust the website’s UI (user
interface) and design it to their personal needs.

Additionally, the website utilizes an AI-based application that runs in the
background and optimizes its accessibility level constantly. This application
remediates the website’s HTML, adapts its functionality and behavior for
screen-readers used by blind users, and for keyboard functions used by
individuals with motor impairments.

If you wish to contact the website’s owner please use the website's form

Screen-reader and keyboard navigation

Our website implements the ARIA attributes (Accessible Rich Internet
Applications) technique, alongside various behavioral changes, to ensure blind
users visiting with screen-readers can read, comprehend, and enjoy the website’s
functions. As soon as a user with a screen-reader enters your site, they
immediately receive a prompt to enter the Screen-Reader Profile so they can
browse and operate your site effectively. Here’s how our website covers some of
the most important screen-reader requirements:

1. Screen-reader optimization: we run a process that learns the website’s
components from top to bottom, to ensure ongoing compliance even when
updating the website. In this process, we provide screen-readers with
meaningful data using the ARIA set of attributes. For example, we provide
accurate form labels; descriptions for actionable icons (social media icons,
search icons, cart icons, etc.); validation guidance for form inputs;
element roles such as buttons, menus, modal dialogues (popups), and others.

Additionally, the background process scans all of the website’s images. It
provides an accurate and meaningful image-object-recognition-based
description as an ALT (alternate text) tag for images that are not
described. It will also extract texts embedded within the image using an OCR
(optical character recognition) technology. To turn on screen-reader
adjustments at any time, users need only to press the Alt+1 keyboard
combination. Screen-reader users also get automatic announcements to turn
the Screen-reader mode on as soon as they enter the website.

These adjustments are compatible with popular screen readers such as JAWS,
NVDA, VoiceOver, and TalkBack.

2. Keyboard navigation optimization: The background process also adjusts the
website’s HTML and adds various behaviors using JavaScript code to make the
website operable by the keyboard. This includes the ability to navigate the
website using the Tab and Shift+Tab keys, operate dropdowns with the arrow
keys, close them with Esc, trigger buttons and links using the Enter key,
navigate between radio and checkbox elements using the arrow keys, and fill
them in with the Spacebar or Enter key.

Additionally, keyboard users will find content-skip menus available at any
time by clicking Alt+2, or as the first element of the site while navigating
with the keyboard. The background process also handles triggered popups by
moving the keyboard focus towards them as soon as they appear, not allowing
the focus to drift outside.

Users can also use shortcuts such as “M” (menus), “H” (headings), “F”
(forms), “B” (buttons), and “G” (graphics) to jump to specific elements.

Disability profiles supported on our website
* Epilepsy Safe Profile: this profile enables people with epilepsy to safely
use the website by eliminating the risk of seizures resulting from flashing
or blinking animations and risky color combinations.
* Vision Impaired Profile: this profile adjusts the website so that it is
accessible to the majority of visual impairments such as Degrading Eyesight,
Tunnel Vision, Cataract, Glaucoma, and others.
* Cognitive Disability Profile: this profile provides various assistive
features to help users with cognitive disabilities such as Autism, Dyslexia,
CVA, and others, to focus on the essential elements more easily.
* ADHD Friendly Profile: this profile significantly reduces distractions and
noise to help people with ADHD, and Neurodevelopmental disorders browse,
read, and focus on the essential elements more easily.
* Blind Users Profile (Screen-readers): this profile adjusts the website to be
compatible with screen-readers such as JAWS, NVDA, VoiceOver, and TalkBack. A
screen-reader is installed on the blind user’s computer, and this site is
compatible with it.
* Keyboard Navigation Profile (Motor-Impaired): this profile enables
motor-impaired persons to operate the website using the keyboard Tab,
Shift+Tab, and the Enter keys. Users can also use shortcuts such as “M”
(menus), “H” (headings), “F” (forms), “B” (buttons), and “G” (graphics) to
jump to specific elements.

Additional UI, design, and readability adjustments
1. Font adjustments – users can increase and decrease its size, change its
family (type), adjust the spacing, alignment, line height, and more.
2. Color adjustments – users can select various color contrast profiles such as
light, dark, inverted, and monochrome. Additionally, users can swap color
schemes of titles, texts, and backgrounds with over seven different coloring
options.
3. Animations – epileptic users can stop all running animations with the click
of a button. Animations controlled by the interface include videos, GIFs,
and CSS flashing transitions.
4. Content highlighting – users can choose to emphasize essential elements such
as links and titles. They can also choose to highlight focused or hovered
elements only.
5. Audio muting – users with hearing devices may experience headaches or other
issues due to automatic audio playing. This option lets users mute the
entire website instantly.
6. Cognitive disorders – we utilize a search engine linked to Wikipedia and
Wiktionary, allowing people with cognitive disorders to decipher meanings of
phrases, initials, slang, and others.
7. Additional functions – we allow users to change cursor color and size, use a
printing mode, enable a virtual keyboard, and many other functions.

Assistive technology and browser compatibility

We aim to support as many browsers and assistive technologies as possible, so
our users can choose the best fitting tools for them, with as few limitations as
possible. Therefore, we have worked very hard to be able to support all major
systems that comprise over 95% of the user market share, including Google
Chrome, Mozilla Firefox, Apple Safari, Opera and Microsoft Edge, JAWS, and NVDA
(screen readers), both for Windows and MAC users.

Notes, comments, and feedback

Despite our very best efforts to allow anybody to adjust the website to their
needs, there may still be pages or sections that are not fully accessible, are
in the process of becoming accessible, or are lacking an adequate technological
solution to make them accessible. Still, we are continually improving our
accessibility, adding, updating, improving its options and features, and
developing and adopting new technologies. All this is meant to reach the optimal
level of accessibility following technological advancements. If you wish to
contact the website’s owner, please use the website's form

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GET https://mcmillan.ca/email-subscription/

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