In the fall of last year, the Supreme Court of Canada (“SCC”) in Québec v. Nguyen unanimously upheld the Quebec Court of Appeal’s decision to strike down Bill 104 for breaching section 23 of the Canadian Charter of Rights and Freedoms.
Bill 104 (An Act to amend the Charter of the French language) was passed in 2002 by the Parti Québécois government to close a perceived loophole in Bill 101 (the Charter of the French Language (“Charter”)), which enabled children of immigrant (and even francophone) parents to use private unsubsidized English schools (predominately at the Grade 1 and 2 elementary levels) to springboard their children to a public English education.
To gain access to such public English schools, immigrant (and francophone) parents could send their children to an unsubsidized private English school, pay private tuition fees for a year or two, and then transfer/springboard their children to the public English system. As soon as one child qualified for a public English education, their siblings also qualified. Bill 104 stopped this end-run around mandatory French language education by amending Section 73 of the Charter to effectively read that instruction received in a private unsubsidized Quebec English school is to be disregarded when determining a child’s eligibility for public instruction in English.
In striking down Bill 104, the SCC held that its complete disregard for education in a private school system, when considering eligibility for public English schools, was “overly drastic.” By suspending its decision, the SCC gave the Quebec National Assembly one year to draft new legislation. Unfortunately, this does not help those children who are stuck in limbo for a year and are currently languishing in the French system. To be sure, Bill 104 failed and it resulted in many children losing educational opportunities.
Legislating language laws can restrict business opportunities as well. Indeed, Quebec’s French language laws could even keep companies out of doing business in la belle provence. It has been over 30 years since Quebec adopted the Charter (Bill 101) but unless your business has or is planning to expand into Quebec, it is likely that your company has never paid much attention to the Charter’s language obligations imposed on businesses. In light of the SCC decision in Québec v. Nguyen a quick re-visitation of the Charter and its effects on businesses may be in order.
The Charter establishes rights for Quebecers to not only be educated in French but also for consumers to be informed in French. It also imposes obligations on the commercial retail industry to offer its products and related literature in French. Not only do commercial signs and products have to be labelled in French but catalogues, brochures and any other similar publication must also be drafted in French. This does not mean that English (or another language) is prevented from being used in Quebec. However, the French text has to be predominant (which means it must have a greater visual impact) and equal to that of any other language. For example, where both French and English appear on the same sign/poster, the French text ought to be at least twice as large as the English text. This general double-the-size rule is not applicable to advertising in the news media or with respect to religious, political, ideological or humanitarian messages that do not have a commercial motive. There are, of course, other exceptions as well. For example, cultural and educational products such as books, magazines, software etc. can be in another language other than French. Also, products that are from outside Quebec that are merely exhibited at a conference (or similar event) can be exclusively in a language other than French – so long as the particular product has not been introduced to the Quebec market. I should also note that a product from outside Quebec that will be incorporated into a finished product for manufacturing purposes but is not in fact for sale in Quebec need not be in French either. In addition, if the product is from outside of Quebec and has been permanently inscribed thereon, the permanent mark does not have to be in French unless such a permanent inscription deals with safety.
- In consideration of business names, a business does not need a French name if:
- the company operates exclusively outside of Quebec;
- the name concerns origin or denomination of an exotic product, foreign specialty, heraldic motto or any other known commercial model;
- the name is of a place located outside of Quebec;
- the name is derived from a family name;
- the name is a given name or the name of a personality or character or a distinctive name of a cultural nature and of importance; or
- the name is a recognized/registered trade-mark (unless a French version of the trade-mark has also been registered).
Moreover, if one’s business is located in Quebec and comprises more than 50 employees, there is an obligation to register with l’Office québécois de la langue française (“OQLF”) and obtain a certificate of francization. Such a business needs to demonstrate that it is taking measures to ensure that the French language is generally used throughout the business (francization). Before a certificate of francization is received by the enterprise, the OQLF may on its own initiative, or due to a complaint, verify that a business is meeting its obligations pursuant to the Charter. This includes having a French version of the company website and generally using information technology in French. This sometimes comes as a surprise to large companies that, when compared to their overall business operations, barely have a footprint in Quebec.
If currently operating or wanting to expand your enterprise in Quebec, be sure to review your company’s obligations pursuant to the Charter – especially if you have a place of business with 50 employees or more in Quebec.