Canada’s Intellectual Property Law Firm

On May 13, 2021, the government of Québec introduced Bill 96 with an intent to “strengthen” the provisions in the Charter of the French language (the French Charter). We do not know whether Bill 96 will be adopted and, if so, whether it will be passed in its current form. An amendment to the Regulation respecting the language of commerce and business (the Regulation) is also expected. In the meantime, the current texts of the French Charter and Regulation continue to apply.

This article provides an overview of some of the changes proposed by Bill 96, notably those related to the language of commerce and business, the handling of complaints by the Office québécois de la langue française (OQLF) and its powers, and the sanctions for violating the French Charter. Though Bill 96 may significantly influence the French language laws in Québec, we will only be able to evaluate the true impact of this reform when the Bill and the anticipated changes to the Regulation are adopted in their final form.

Language of commerce and business

Contracts of adhesion and contracts containing standard clauses1

Bill 96 provides for civil penalties in case of non-compliance with the language of contracts, including the cancellation of the contract or the reduction of the obligation of the person who suffers harm2, as a result of the non-compliance with this new provision.

Also, in any contract of adhesion or consumer contract, it is necessary for the adherent or the consumer to have expressly requested for the contract to be in a language other than French. Otherwise, any clause in a language other than French is deemed incomprehensible, which may cause the clause to be void and of no effect.3

The provisions relating to this requirement would come into effect on the day Bill 96 receives approval.4

Public signage and commercial advertising5

Currently, the “recognized trademark” exception allows, among other things, the display of a trademark in a language other than French so long as the trademark is registered in Canada or the owner of the trademark has common law rights in said trademark, and a French version of the trademark is not registered in Canada.6  Under Bill 96, this exception becomes restricted to registered marks. In other words, the owner of a common law trademark can no longer rely on the “recognized trademark” exception and is forced to translate in French the unregistered trademark which appears in its public display.

For any public display of a registered trademark, which appears in a language other than French, the “sufficient presence of French”7 requirement is replaced by the markedly predominant requirement.8  In practice, this would mean that when a registered trademark is displayed on the exterior of a building, it must be accompanied by inscriptions in French that have a greater visual impact than the trademark in question. The same requirement applies to a business name displayed outside a building, which includes a portion in a language other than French.9

All the above would come into effect 3 years after Bill 96 receives approval.10

Complaints, OQLF’s powers and sanctions

Handling of complaints

Bill 96 formalizes the way the OQLF handles complaints and imposes certain obligations in this area.11 Notably, the OQLF must report to the complainants, informing them of the processing of their complaint and the measures that the OQLF intends on taking against the defaulting party.

The effective date for these changes would be the date on which the first French language Commissioner is appointed.12

Powers of the OQLF

Bill 96 extends and amplifies the powers of the OQLF. It grants the OQLF the power to issue orders in the event of a breach of the French Charter’s provisions or to ask the Superior Court to issue injunctions.13 Bill 96 allows the OQLF to order the removal of products that do not comply with the provisions pertaining to inscriptions on products or to ask the Court to issue an injunction to that effect.

The OQLF may also ask the Court to order the removal or destruction of posters, advertisements, billboards and illuminated signs that contravene the French Charter.14

The effective date of these changes would be the day Bill 96 receives approval.15

Sanctions in case of violation

Under Bill 96 sanctions for violations are more severe and diversified. For example, a business may have its government-issued license suspended or revoked if it repeatedly violates the French Charter.16

The fines for a natural person (an individual) range from $700 to $7,000 (under the French Charter, the current fines range from $600 to $6,000), and for a legal person the fines range from $3,000 to $30,000 (the current fines range from $1,500 to $20,000). 17

The increase in fines may not seem significant at first glance, but Bill 96 also contains the following additional provisions that notably increase the amount of the fines:

  • The amount doubles for a second violation and triples for any subsequent violations;18
  • If the offense is committed by an executive or an administrator of legal person, the minimal and maximum fines double for the natural persons;19
  • If the violation continues for more than one day, each day is considered as a distinct violation, which multiplies the amount of the fines.20

At this time, we do not know if, or when, Bill 96 will come into force. However, the government of Québec holds Bill 96 in priority with all political parties in Québec wishing to move that matter forward rapidly. Please subscribe to our IP Updates for up-to-date news and announcements regarding Bill 96.

For more information on Bill 96 and the proposed changes to the French Charter and Regulation, please contact a member of our Trademarks & Brand Protection group for further guidance and assistance.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

References

1. French Charter, section 55 and Bill 96, section 44.

2. Bill 96, section 114 (204.19).

3. Bill 96, section 114 (204.25) and  Civil Code of Québec, section 1436.

4. Bill 96, section 201.

5. Bill 96, section 47.

9. Bill 96, section 48.

10. Bill 96, section 201 para. 5.

11. Bill 96, section 107.

12. Bill 96, section 201 para. 7.

13. Bill 96, section 113 (184).

14. Bill 96, section 113 (184).

15. Bill 96, section 201.

16. Bill 96, section 114 (204.27).

17. Bill 96, section 114 (205).

18. Bill 96, section 114 (206).

19. Bill 96, section 114 (207).

20. Bill 96, section 114 (208).