Bill 96, now officially An Act respecting French, the official and common language of Québec (“Bill 96”),1 was presented as a major reform of the Charter of the French Language2 (the “Charter”). It has received considerable attention since it was passed in May of this year and is already being challenged before the courts.
On Friday, August 12, 2022, the Superior Court of Quebec3 ordered the temporary suspension of two clauses of the Charter.
Those clauses, namely sections 5 and 119 of Bill 96 amending the Charter by adding sections 9 and 208.6, which were to come into force on September 1, 20224 provide that in order for pleadings that emanate from a legal person and drawn up in English to be filed at a court office, a French translation certified by a certified translator must be attached to it and the legal person shall bear the translation costs.
The decision in brief
The plaintiffs have challenged the constitutionality of the above provisions and are asking the Superior Court of Quebec to invalidate them. The hearing on the merits could take place as early as this fall.
In the meantime, the plaintiffs have also asked that the Superior Court suspend the contested provisions pending the hearing.
On August 12, 2022, the Superior Court found that the requirements for obtaining a stay had been met:
- There is a serious issue to be tried: a possible violation of section 133 of the Constitution Act, 1867,5 which provides for access to the courts of Quebec in both French and English;6
- The plaintiffs have demonstrated irreparable harm should the contested provisions come into force pending the hearing: the provisions may deny effective access to justice, particularly in the case of urgent or accelerated proceedings, for reasons that include (i) the additional costs of translation throughout each stage of preparing a case, (ii) the additional time required, and (iii) the availability and actual number of qualified translators in Quebec to translate pleadings quickly and efficiently;7
- The balance of convenience favours the plaintiffs: given that the contested provisions would compromise access to the courts, the plaintiffs have successfully rebutted the presumption that implementing these provisions during the proceedings would better serve the public interest than suspending them.8
Consequently, the Superior Court of Quebec has temporarily suspended sections 9 and 208.6 of the Charter regarding the translation of pleadings, which were to come into force on September 1, notwithstanding an appeal.
The impacts of this decision
It is still possible for any legal person to file pleadings in English only. The new requirements of Bill 96 – that pleadings issued by a legal person drawn up in English must be accompanied by a certified French version prepared by a certified translator at the expense of the party – have been temporarily suspended until a final judgment on the constitutionality of these provisions is rendered by the Superior Court of Quebec.
We are closely following the developments surrounding this debate and will obviously remain on the lookout for legal challenges and judicial interpretations of the recent amendments introduced by Bill 96.
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1 An Act respecting French, the official and common language of Quebec, R.S.Q. 2022, c. C-11.
2 Charter of the French Language, R.S.Q. 1977, c. C-11.
3 Mitchell v. Procureur général du Québec, 2022 QCCS 2983.
4 Clause 180 of Bill 96.
5 Constitution Act, 1867, 30 & 31 Vict., c. 3.
6 Mitchell v. Procureur général du Québec, 2022 QCCS 2983, at paras. 16-23.
7 Ibid., at paras. 38-53.
8 Ibid., at paras. 65-77.
