How the Act Respecting French, the Official Language of Quebec, Affects Businesses

​June 1 will mark the first anniversary of An Act Respecting French, the Official and Common Language of Quebec (the "Official and Common Language Act"), better known as Bill 96. On that date, new provisions amending the Charter of the French Language (the "Charter") will take effect, resulting in new requirements for employers operating in Quebec.

To help Quebec employers understand how the changes could affect them, this article reviews the main requirements in effect since June 1, 2022, before providing an overview of the upcoming measures. Perspectives on the main issues related to the Charter that Quebec employers have raised to date also are shared.

Requirements in Effect Since June 1, 2022

Since the first amendments to the Charter took effect, the right of employees to carry on their activities in French has been strengthened and clarified. Employers are now required to use the French language when drawing up or using documents such as employment offers, transfer and promotion letters, employment contracts and collective agreements, written communications with workers or their associations, employment application forms, documents relating to conditions of employment and training documents produced for the staff. In the case of the latter three document types, if a version is available in another language, the French version must be available on terms that are at least as favorable.

The right of workers to carry on their activities in French was also strengthened by the prohibition for employers to take reprisals for the use of French or the exercise of a right conferred by the law. Furthermore, employers must take reasonable means to prevent and put a stop to harassment and discrimination based on an insufficient proficiency in a language other than French, a demand to express oneself in French or the claiming of a right arising from the Charter.

Restrictions on requirements to be able to communicate in a language other than French at the time of hiring or promotion were also significantly strengthened. Employers must now demonstrate that certain criteria are met. In addition, employers may no longer require the knowledge of such a language if it is not truly required for the company's activities and if they have not taken reasonable efforts to avoid this requirement.

Going forward, job postings must be published in French only. If required, they may also be published in another language, so long as the publications are simultaneous and use equivalent transmission methods.

The reform has given the Charter more teeth to ensure that all new and existing requirements are respected. Fines for businesses in violation of the act have also been substantially increased, and government institutions may no longer award contracts or grant subsidies to enterprises that fail to comply with their obligations.

We previously have provided a more detailed look at the requirements for employers that have been in effect since June 1, 2022.

It is noteworthy that the Superior Court of Quebec suspended two sections of the Charter until a final judgment on their validity. Under the two affected provisions, which were to take effect Sept. 1, 2022, pleadings drawn up in English emanating from legal persons would have to be accompanied by a certified French translation produced at the legal person's expense to be validly filed with the court.

Requirements Starting June 1 and After

With regard to the requirements mentioned above, employment contracts, when requested by an employee, as well as collective agreements, employment application forms, documents relating to conditions of employment and employee training documents drafted in a language other than French must be translated into French by June 1. In the case of employment contracts and collective agreements, this requirement is only applicable if they will continue to be in effect after June 1, 2024.

In addition, for the business sectors of its choosing, the Office québécois de la langue française (the "Office") will determine the enterprises with five to 24 employees to which it will offer to implement French language learning services provided by Francisation Québec, the agency established for this purpose by the Official and Common Language Act. Any designated business that refuses to implement these services or breaches the terms of the contract will become ineligible to contract with government institutions and to receive government subsidies.

One year later, that is, as of June 1, 2024, all arbitration awards in grievance and dispute cases related to collective agreements will have to be accompanied by a French version. Any translation, if required, must be certified and will be at the parties' expense.

Lastly, as of June 1, 2025, under the Official and Common Language Act, all enterprises with 25 to 49 employees will become subject to the same francization process set out in the Charter that was previously limited to enterprises with 50 or more employees. They must therefore be registered with the Office for that purpose prior to that date. After registering, enterprises must analyze their linguistic situation. If they can show that the use of French is generalized at all levels, they will receive a francization certificate from the Office. If they cannot, they will have to adopt and comply with a francization program to generalize the use of French at all levels and receive the certificate.

Perspectives on Issues Raised to Date

The adoption of the Official and Common Language Act certainly kept employers busy translating documents from employment contracts to internal policies, termination letters and pension and incentive plans.

Faced with the need to adapt, many employers took great care to comply with the newly enacted rules and avoid disciplinary investigations, reputational risk, complaints filed against them with the Office, and negative impacts on matters unrelated to the Charter that have the potential of ending up in court.

That said, despite being specified in several respects in the Official and Common Language Act, an employer's general obligation to respect the right of employees to carry on their activities in French remains open to interpretation in a number of workplace situations. It will be interesting to see whether jurisprudence develops to further clarify this general obligation, which, in reality, the Charter succinctly set out even before the adoption of the Official and Common Language Act.

Conclusion

Even with Charter reform well underway, Quebec employers should nonetheless consider quickly achieving compliance with these new changes if they want to avoid having complaints filed against them and paying costly fines.

Over the coming months, they should also stay current on the potential court challenges of these new provisions and monitor the evolution of the above-mentioned court decision that suspended a number of Charter provisions.

Eliab Taïrou and Manuel Cȏté are attorneys with Langlois Lawyers LLP in Montreal. © 2023 Langlois Lawyers LLP. All rights reserved. Reposted with permission of Lexology.