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New French Language Requirements for Employers: Are You Ready?

New French Language Requirements for Employers: Are You Ready?
By  Catherine Gagné, Francis Laperrière Racine and Philippe Berthiaume (Articling Student)
May 25, 2022

On May 24, 2022, Bill 96, An Act respecting French, the official and common language of Québec (Bill 96), which amends the Charter of the French Language (Charter), was adopted by Quebec’s National Assembly. Tabled a year ago by Quebec’s Minister Responsible for the French Language, Simon Jolin-Barrette, Bill 96 aims to promote the French language and affirm its status as Quebec’s only official language.

This bulletin provides an overview of the main amendments to the Charter that pertain to employers’ obligations in Quebec; it does not address all amendments made to the Charter by Bill 96.

As mentioned in our May 2021 Blakes Bulletin: French Language Charter Reforms: Increased Requirements for Businesses in Québec, Bill 96 sets out new requirements and, in some cases, increases existing requirements for employers in Quebec pursuant to the Charter. It also aims to impose new obligations on employers in Quebec that are to take effect on the date of Bill 96’s assent (unless otherwise stated hereafter). Here are a few of those obligations:

  • Employers will be required to draw up in French their written communications (e.g., newsletters, communications with a union, disciplinary notices) to their staff (or a part thereof), an individual employee or an association of workers, unless an employee explicitly requests that their employer communicate with them in a language other than French.

  • Employers will be required to make sure that any individual employment contract they enter into in writing is drawn up in French. However, the parties to an individual employment contract that is a contract of adhesion (i.e., a contract whose essential provisions may not be negotiated by the employee) will be bound only by its version in a language other than French if, after examining its French version, such is their express wish. In all other cases, an individual employment contract may be drawn up exclusively in a language other than French at the express wish of the parties. This exception applies to contracts by mutual agreement (i.e., agreements that are freely negotiated between parties), which usually include contracts for senior executives.

  • Employers will be required to draw up 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 in French.

  • Employers will have to 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. An employer will be deemed to have taken all reasonable means to avoid this requirement 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.

However, this should not be interpreted as imposing upon employers an unreasonable reorganization of their business. In addition, employers requiring that a person have knowledge, or a specific level of knowledge, of a language other than French to obtain a position must indicate the reasons therefor in the offer of employment for that position.

  • Employers will be required to take all reasonable means to prevent any type of discrimination or harassment against a person who has little or no command of a language other than French and, if such conduct is brought to their attention, to make it cease.

  • Barring individual employment contracts governed by the requirements set out above, contracts of adhesion, with some exceptions, and related documents will have to be drawn up in French. The parties to such a contract may decide to be bound only by its version in a language other than French (e.g., in English), but only once the French version has been handed to the adhering party. In other words, it will no longer be possible to execute most contracts of adhesion in English without making a French version available prior to signing. A contract containing standard clauses without being a contract of adhesion will not be subject to this requirement but will nevertheless have to be drawn up in French unless the parties explicitly consent otherwise. Failure to comply with these new obligations may lead to the contract being declared void without the adhering party having to prove that they suffered injury as a result of this failure. These new requirements will come into force one year after the date of Bill 96’s assent. For existing individual contracts of employment drawn up in a language other than French, an employee may request that their contract be translated into French within the year after the date of Bill 96’s assent; following such a request, the translation will have to be completed as soon as possible and at the employer’s expense.

  • In addition to the above conditions pertaining to contracts of adhesion, Bill 96 also provides that, for the purposes of article 1435 of the Civil Code of Québec (Civil Code), the adhering party will be presumed not to know of an external clause drawn up in a language other than French, unless the contract was drawn up in that other language at the adhering party’s express request. Furthermore, for the purposes of article 1436 of the Civil Code, a clause drawn up in a language other than French will be deemed to be incomprehensible, unless the contract was drawn up in that other language at the express request of the adhering party.

Bill 96 also sets out various measures that are of interest to employers, including the following:

  • In their declaration of registration, businesses that have between five and 24 employees will be required to disclose the number of employees whose workplace is located in Quebec, as well as the proportion of those employees who are unable to communicate in French. This continuous disclosure obligation will allow the Office québécois de la langue française (OQLF) to offer French language learning services to the companies it targets. While these francization services will not be mandatory, a business that refuses an offer made by the OQLF for these services will be subsequently barred from entering into a contract with the civil administration or obtaining a government subsidy.

  • Francization requirements will apply to businesses of 25 employees or more (as opposed to businesses of 50 employees or more, as was previously set out in the Charter). This will come into force three years after the date of Bill 96’s assent.

  • The OQLF will have the power to order a business with fewer than 100 employees to create a francization committee.

  • Employers will be prohibited from carrying out reprisals against a person exercising a right pursuant to the Charter.

  • When a business commits an offence under the Charter, it becomes liable to a fine ranging 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.

  • An employer carrying out reprisals, or threatening to do so, is guilty of an offence and liable to a fine of C$2,000 to C$20,000 in the case of a natural person, and a fine of C$10,000 to C$250,000 in all other cases.

In light of the above-mentioned changes, employers may need to make significant changes to their existing practices and policies. They should therefore review their internal operations to ensure their compliance with these new legal obligations.

For more information, please contact:

Catherine Gagné        514-982-4085
Francis L. Racine         514-982-4149

or another member of our Employment & Labour group.