Canada Update: The bill to amend the Charter of the French Language: expected impacts for employers in Quebec – Part 1

On May 13, 2021, the Quebec government tabled Bill 96, An Act respecting French, the official and common language of Quebec,¹ which proposes various amendments to the Charter of the French Language.²

Once adopted and in force, this bill will impact several areas. We will focus here on the main changes affecting employers and their employees or potential employees in Quebec.

In light of the proposed changes, employers would be well advised to follow the debates on this bill and potentially reassess their compliance with the new version of the Charter.

The language of the workplace

The Charter already regulates the language of the workplace to a large extent. However, Bill 96 clarifies the definitions of terms used in the Charter in this regard, notably by specifying what is meant by the terms “employee” and “worker.”³

Bill 96 also proposes some more substantial amendments to the Charter’s language of work provisions. Indeed, Bill 96 expressly states that employers must respect the workers’ right to carry out their activities in French. Among other things, the employer must:⁴

• Ensure that any offer of employment, transfer or promotion it publishes is in French;
• Ensure that any individual employment contract it concludes in writing is drafted in French:
• It should be noted here that the parties to an individual employment contract that is a contract of adhesion or that contains standard clauses may only be bound by its version in a language other than French if, after having reviewed its French version, this is the express wish of the parties. In other cases, an individual employment contract may be drawn up exclusively in a language other than French if this is the express wish of the parties;
• Use French in all written communications, even those following the end of the employment relationship, to its staff, part of its staff, an individual worker or an association of workers representing its staff or part of its staff:
• Again, it should be noted here that an employer may communicate with a worker in writing exclusively in a language other than French if the latter requests it;
• Make job application forms, documents regarding working conditions and staff training materials available in French.

With respect to the amendments to the Charter provisions on reprisals and prohibited practices in the context of language requirements, Bill 96 specifically prohibits employers from imposing any sanction whatsoever on a member of their staff for any of the following reasons:⁵

• Because the individual demanded respect of a right arising from the provisions of the chapter of the Charter dealing with the language of work;
• To dissuade the individual from exercising such a right;
• Because the individual does not know or have a specific level of knowledge of a language other than the official language, when the performance of the individual’s duties does not require such knowledge;
• Because the individual has participated in meetings of, or performed work for, a francization committee established under the Charter or one of its subcommittees;
• To persuade the individual to endorse a document that requires approval by the francization committee, or to dissuade the individual from doing so;
• Because the individual has, in good faith, communicated information to the Office under the new whistle-blowing provisions or cooperated in an investigation carried out as a result of such communication.

As for prohibited practices, Bill 96 states that it is a prohibited practice for an employer to require a person to have knowledge or a specific level of knowledge of a language other than the official language in order to remain in a position or to gain access to it, in particular through recruitment, hiring, transfer or promotion, unless the employer demonstrates that the performance of the duties of the position requires such knowledge and that the employer has already taken all reasonable measures to avoid imposing such a requirement.

Demonstrating that reasonable measures have been taken is quite complex and involves the following elements:

• The employer has assessed the actual language needs associated with the duties to be performed;
• The employer has ascertained that the language skills already required of other staff members are insufficient for the performance of these 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 the official language.⁶

Also with respect to language requirements, an employee who believes that he or she has been the victim of reprisals or who believes that he or she has been unlawfully required to have specific knowledge of a language other than French will now have recourse directly to the CNESST to assert his or her rights.⁷ The time limit for filing such a complaint has also been increased from thirty (30) to forty-five (45) days.

Furthermore, with Bill 96, the Quebec government wants to clearly establish that employers must take reasonable measures to ensure that all their employees have the right to a work environment that is free from any form of discrimination or harassment, whether because they have limited or no command of a language other than the official language; because they claim the possibility to express themselves in the official language; or because they have demanded the respect of a right arising from the provisions of the chapter of the Charter dealing with the language of work.

Finally, and specifically with regard to collective labour relations, Bill 96 provides that arbitration awards rendered in English must henceforth be accompanied by a French version without delay (and not only at the request of a party),⁸ the translation being at the expense of each party. 

The francization of certain companies

The Charter already provides for a francization process for companies.

In its current form, the Charter provides that any company employing fifty (50) or more people for a period of six (6) months must register with the Office québécois de la langue française,⁹ which then issues a registration certificate. Within six (6) months of the issuance of the registration certificate, the company must send the OQLF an analysis of its language situation.

If the OQLF considers that the use of French is widespread, a francization certificate is issued to the company. After that, the company must submit a progress report to the OQLF every three (3) years regarding the use of French in the company.

Upon reviewing the analysis of the language situation provided by the company, the OQLF may determine that the use of French is not widespread. In that case, the company must develop a francization program and submit it to the OQLF within six (6) months. Once approved by the OQLF, the company is responsible for implementing the francization program and must report to the OQLF every 24 months if it employs fewer than one hundred (100) people or every twelve (12) months if it employs one hundred (100) people or more.

The following table summarizes the major changes proposed by Bill 96 in this respect:

Certain provisions regarding francization committees also deserve attention. For example, Bill 96 proposes that such a committee must meet at least every six (6) months.¹⁰ It also specifies that a company registered with the OQLF must be represented by a member of senior management as well as by a representative of the francization committee.¹¹ 

Other proposed changes worth noting

It should be noted that the new provisions would mean that government departments would not be able to enter into a contract with a company to which the provisions of the Charter apply, nor grant it a subsidy, if the company does not have a certificate of registration with the OQLF.¹² In addition, the penalties for non-compliance with the provisions of the Charter have been increased for both individuals and legal entities.¹³

Conclusion

We will soon publish a more detailed update addressing all the issues arising from this important bill, over and above its impact on employment relationships.

Please do not hesitate to contact a member of our team if you have any questions about this article.

¹ Hereinafter: “Bill 96.” See online: http://m.assnat.qc.ca/fr/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html.
² CQLR, c. C-11, hereinafter: the “Charter.”
³ See Art. 28 of Bill 96, which adds Art. 40.3 to the Charter.
⁴ See Art. 29 of Bill 96, which amends Art. 41 of the Charter.
⁵ See Art. 33 of Bill 96, which amends Art. 45 of the Charter.
⁶ See Arts. 35 and 36 of Bill 96, which amend Art. 46 and add Art. 46.1 to the Charter.
⁷ See Art. 37 of Bill 96, which amends Art. 47 of Bill 101.
⁸ See Art. 32 of Bill 96, which amends Art. 44 of Bill 101.
⁹ Hereinafter “OQLF.”
¹⁰ See Art. 80 of Bill 96, which adds Art. 138.3 to Bill 101.
¹¹ See Art. 81 of Bill 96, which adds Art. 139.1 to Bill 101.
¹² See Art. 93 of Bill 96, which adds Arts. 152 and 152.1 to Bill 101.
¹³ See Arts. 114 and 115 of Bill 96, which replace Arts. 205-208 of Bill 101.

By Langlois, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact canada@transatlanticlaw.com

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