The Québec Charter of the French Language (Charter) has been amended by the adoption of Bill 115, An Act following upon the court decisions on the language of instruction (Act). Although the Act focuses primarily on the rules governing the eligibility of students for instruction in English, it is of interest to readers who advertise or sell their products in Québec as it significantly increases the potential fines for those who contravene the provisions of the Charter or its regulations, including the provisions requiring the use of French in product labels and commercial advertising. The Act also introduces new provisions extending the scope of liability for violations of the Charter to those who assist in the commission of such offences.
Increased Financial Penalties
Effective October 19, 2010, the Act increases the potential fines for contraventions of the Charter or its regulations as follows:
- In the case of a natural person, the minimum fine is increased from $250 to $600, and the maximum fine is increased from $700 to $6,000.
- In the case of a legal person, the minimum fine is increased from $500 to $1,500, and the maximum fine is increased from $1,400 to $20,000.
For subsequent offences, the potential fines for both natural and legal persons are doubled. Corporate advertisers should note that whereas previously the Charter had capped a legal person’s liability for a subsequent offence at $7,000, under the Charter as amended, the upper limit for a legal person’s potential liability for a subsequent conviction is increased to $40,000. In determining the amount of such a fine, the Charter now directs the judge to consider, among other things, the revenues and other benefits the offender derived from the offence as well as any damages or socio-economic consequences that resulted from it.
The Act also creates an additional, discretionary fine which may be imposed by the judge, on an application made by the prosecutor and submitted with the statement of offence. This additional fine is to be equal to the financial gain the offender realized or derived from the offence and may be imposed in addition to the maximum fine noted above.
New Liability for “Assisting,” “Advising” or “Encouraging” an Offence
The Act also expands the scope of liability for an offence to those who, by their actions or omissions, assist a person in committing an offence under the Charter or its regulations, or advise, encourage or incite a person to commit such an offence.
The amendments further create a presumption that an offence is committed by a party upon proof that the offence was committed by their agent, mandatary or employee. However, this presumption is rebuttable where the party can establish that it exercised “due diligence” and “took all the necessary precautions to ensure compliance” with the Charter and its regulations.
Following this principle, corporations conducting business in Québec may find themselves liable for the acts or omissions of their agents, mandataries and employees where they breach the provisions of the Charter or its regulations. Such liability may have significant financial consequences due to the increase in the amount of potential fines under the Charter and its regulations. Corporations wishing to rebut the presumption that they committed an offence committed by their agent, mandatary or employee bear the burden of demonstrating they exercised due diligence and took appropriate precautionary measures.
Finally, the amendments provide that penal proceedings for offences under the Charter or its regulations will be statute-barred if they are instituted more than two years after the date on which the offence was committed.
In light of the recent amendments increasing the monetary fines and expanding the scope of potential liability under the Charter, corporations that conduct business in Québec are advised to review their compliance with the newly amended Charter so as to avoid potential liability. Corporations should further ensure that any employees, mandataries or agents in positions to affect their compliance with the Charter are well informed of its applicable provisions.
All advertisers and marketers conducting business in Québec should exercise due diligence and implement adequate precautionary measures so as to protect themselves from liability under the newly amended Charter and its regulations.