On October 19, 2010, the Québec National Assembly adopted Bill No. 115, An Act following upon the court decisions on the language of instruction (“Bill 115”). While most of the local attention generated by Bill 115 has been related to its provisions further limiting access to subsidized English schools, all businesses operating in the province should be made aware of certain amendments relating to the Charter of the French Language (the “Charter”) penal provisions.

As illustrated herein, individuals and businesses found to have violated the provisions of the Charter (or its regulations) are now exposed to significantly higher fines than previously imposed. Moreover, Bill 115 expands the scope of the Charter, and creates certain procedural mechanisms strengthening the position of the Office québecois de la langue française (the “Office”), the government agency responsible for the enforcement of the Charter and its regulations, in any penal proceedings.

 Substantial Fines To Be Levied

Up substantially from amounts levied prior to the adoption of Bill 115, companies are now subject to fines between $1,500 and $20,000 for a first offence and double that amount for any subsequent offences. As for individuals, they are now subject to fines between $600 and $6,000 for a first offence, with any subsequent offences also subject to doubled amounts.

Loss Of Financial Benefits

Also of significant note in Bill 115 is the establishment of criteria to be considered in imposing fines under the Charter, namely the “revenues and other benefits the offender derived from the offence and any damages and any socio-economic consequences that resulted from the offence”. Moreover, judges have newfound discretion to impose additional fines equivalent to “the financial gain the offender realized or derived from the offence, even if the maximum fine has been imposed”. Presumably, such additional fines could therefore annul any financial gain or cost avoidance associated with a contravention of the Charter, whether voluntary or not.

Directors And Officers Beware

Of particular interest to those advising companies, Bill 115 also creates a distinct offence targeting those who assist, advise, encourage or incite an individual or company to commit an offence under the Charter or its regulations. Individuals or companies found to have offended this new provision will be deemed to have committed the offence themselves, and will thus be subject to the same penalties discussed above.

 Do You Know What Your Representatives Are Up To?

Furthermore, Bill 115 creates a presumption whereby proof that an offence was committed by various representatives, including agents or employees of an entity is sufficient to establish that it was committed by the entity itself. Therefore, if a representative, agent or employee were to breach the provisions of the Charter, the employer is presumed to have committed the offence itself, unless it can establish that it exercised due diligence and took all the necessary precautions to ensure compliance with the Charter and its regulations. On this basis, failure to duly inform representatives of the Charter’s exigencies could expose the company itself to liability.

Finally, Bill 115 extends the statutory timebar on penal proceedings from one year to two years, thereby extending the period within which entities can be pursued by the Office after the offence was actually committed.