Language of commerce and business: your obligations following the adoption of Bill 96 amending the Charter of the French language
On May 24, the Quebec government adopted the Act respecting French, the official and common language of Quebec (the “Act”). The Act received royal assent on June 1st, 2022 and can now be found in Chapter 14 of the 2022 Annual Volume of the Statutes of Quebec (SQ 2022, c. 14).
The Act introduces a broad reform of the Charter of the French language (the “Charter”) and will have many impacts on business and commerce in Quebec, particularly with regard to:
- Communications with customers;
- Contracts and other commercial documents exchanged between private parties;
- Product markings and labeling;
- Public display and commercial advertising.
Businesses will have to adapt to new requirements and could face relatively stiff penalties for non-compliance.
The government’s intention, which is materialized in particular with the amendments made during the study of the draft bill and from statements made by the Minister of Justice, is that the Charter henceforth applies to all companies carrying out activities in the Quebec, including businesses under federal jurisdiction. That said, the application of the Charter to the latter could be the subject of a constitutional challenge.
Communications with customers
The Charter already provides for the right of a consumer of goods or services to be informed and served in French.1 With the amendments, there is now an explicit requirement for companies offering goods and services to respect this right and to inform and serve all customers, not just consumers, in French.2 A failure to comply with this requirement may give rise to an order from the Office québécois de la langue française (the “OQLF“)3 and, potentially, a fine.4 In addition, any consumer may seek to put an end to a violation of their right to be informed and served in French, unless the violation is committed by a company with less than five (5) employees.5
These amendments came into force on the date of assent, June 1st, 2022.
Language of contracts and other commercial documents between private parties
The reform of the Charter modifies the framework applicable to contracts of adhesion, contracts containing standard clauses, consumer contracts and several other documents used in the context of commercial exchanges between private parties.
Contracts of adhesion
The Charter already stipulates that contracts of adhesion must be drawn up in French. However, the Act modified the framework applicable to these types of contracts. The Charter now specifies that if they are drawn up in any language other than French they will only be binding if the adhering party has given its express consent to be bound by the other-language version and only after the French version has been provided to the adhering party.6
The legislator has, however, provided for a series of exceptions to this rule. In addition to employment contracts, certain contracts of adhesion listed in the Charter will be exempted (the “exempt contracts of adhesion”). Essentially, these are contracts concluded in the financial sector or which have extraneous elements. These contracts may be drawn up in exclusively in a language other than French provided that the parties expressly agree to same. This is also true for contracts which contain standard clauses, but which are not contracts of adhesion.
No party may require from the other any costs whatsoever relating to the drawing up of a French version of a contract of adhesion or of a document relating thereto, seeing as this other party is entitled to the French version of this contract or document.
The Consumer Protection Act (“CPA”) is amended to provide that the parties can no longer validly consent to a consumer contract being drawn up in any language other than French unless a French version of the contract has been provided to the consumer beforehand7. No fees may be charged to the consumer for the drawing up of the French version of the consumer contract.
Purchase orders and other documents used in trade
With respect to other documents that may be used in commercial transactions, the Charter already provided that catalogues, brochures, folders and commercial directories were to be written in French. Purchase orders and any other document of the same nature available to the public are now added to this list.8 The Charter also specifies that it is prohibited to make such a document available to the public in a language other than French when its French version is not available on terms which are at least as favorable.
Previously, the Charter provided that invoices, receipts and acquittances had to be drawn up in French. This list is no longer exhaustive since the Charter now specifies that it also includes all other documents of the same nature.9 In addition, it is now prohibited to send such documents in a language other than French if the French version is not available to the recipient on terms which are at least as favorable.
Summary of requirements for contracts and business documents
We have prepared a table which summarizes the changes that have been made, or will be made, to the rules relating to the language of contracts and other commercial documents between private parties, to the penalties for a violation of these rules and the date of their entry into force, respectively.
Product markings and labeling
The Charter provided, up until now, that the inscriptions on products, their containers or wrapping, as well as the documents or the objects supplied with them (e.g., instructions for use, certificate of guarantee, etc.) had to be written in French, but that they could be accompanied by one or more translations. The Charter now specifies that the inscription written in any language other than French must not be accessible on more favorable terms than the one written in French.10
A new provision is also added to the Charter to regulate the use of trademarks on product markings. Two conditions must be met in order for a trademark written in a language other than French to appear on a product, its container, its packaging, or on the accompanying documents:
- The trademark must be registered within the meaning of the Trademarks Act; and
- No corresponding French version of the trademark could be found in the register kept under that Act11.
In addition, if a generic term or a description of the product is included in the trademark, it must appear in French on the product or on a medium which is permanently attached to it.
The exact scope of this new provision remains ambiguous, in particular because of the lack of precision as to the scope of the expression a generic term or a description of the product.
A failure to comply with these new requirements in the Charter may give rise to an order from the OQLF12 and, potentially, a fine.13 The OQLF could order the author of the failure to comply with or cease violating the Charter, notably by ordering a company to stop selling or distributing the product in question.
The OQLF’s order may be issued to anyone who sells, distributes, rents, offers or holds the product that is concerned by the breach. The OQLF’s order may also target companies allowing contracts to be made to obtain products that do not comply with the Charter, and whose distributor, seller, lessor, offeror or holder does not have an establishment in Quebec.14
A notice prior to an order may have to be issued in writing by the OQLF.15
The amendment to specify that inscriptions on a product in a language other than French cannot be made available on more favourable terms came into force on the date of Royal Assent, June 1st, 2022. As for the provision concerning the use of trademarks in inscriptions on products, it will come into force on June 1st, 2025.
Commercial advertising and public signage
The existing rule which provides that while public signage and commercial advertising must be in French, it can also be in both French and in another language as long as the French version appears in a markedly predominant way,16 remains unchanged. However, the Act adds provisions that establish a new framework appliable to public signage that is visible from outside premises, as well for the use of trademarks in public signage and commercial advertising.17
Public signage and commercial advertising can only use a trademark that is exclusively in a language other than French under two conditions:
- The trademark is registered within the meaning of the Trademarks Act; and
- No corresponding French version appears in the register kept under that Act.
As for public signage visible from outside premises, French must be markedly predominantly in two circumstances:
- When the sign shows the name of a business including an expression taken from a language other than French; and
- When there is a trademark drawn up in a language other than French.
These two additions to the Charter will come into force on June 1st, 2025. To learn more about this, see our post on this topic. For more information on some of the other changes provided for by the Act, see the following publications:
1 Art. 5 of the Charter.
2 Art. 50.2 of the Charter (added by art. 41 of the Act).
3 Art. 177 of the Charter (added by art. 113 of the Act).
4 Art. 205 of the Charter (added by art. 114 of the Act).
5 Art. 204.16 of the Charter (added by art. 114 of the Act).
6 Art. 55 of the Charter (amended by art. 44 of the Act).
7 Art. 26 of the CPA (amended by art. 151 of the Act).
8 Art. 52 of the Charter (amended by art. 43 of the Act).
9 Art. 57 of the Charter (amended by art. 46 of the Act).
10 Art. 51 of the Charter (amended by art. 42 of the Act).
11 Art. 51.1 of the Charter (added by art. 42.1 of the Act).
12 Art. 177 of the Charter (added by art. 113 of the Act).
13 Art. 205 of the Charter (added by art. 114 of the Act).
14 Art. 177 of the Charter (added by art. 113 of the Act).
15 Art. 177 of the Charter (added by art. 113 of the Act).
16 Art. 58 of the Charter.
17 Arts. 58.1 and 68.1 of the Charter (added, respectively, by arts. 47 and 48 of the Act).