Reform of the Charter of the French language: what impact on municipalities?

As agencies of the civil administration, all municipalities, municipal boroughs, metropolitan communities, agglomeration councils, intermunicipal boards and municipal housing bureaus are subject to the new provisions of the Charter of the French Language[i] enacted by the Act respecting French, the official and common language of Québec[ii].

The amendments have already generated a lot of attention, both in the media and in the courts. In all likelihood we can expect further comment as several provisions are not yet in force such as the prohibition against contracting with certain businesses and the provisions concerning the language required in relation to contracts with the civil administration or to which they are a party.

There are significant consequences for contravening these provisions. The rule of general application is that a contract containing clauses that contravene the Charter may be nullified on application by the person adversely affected by the clauses[iii]. If civil administration is a party to the contract and the contravention specifically involves the use of a language other than French, the entire contract would be deemed an absolutely nullity, irrespective of whether anyone is adversely affected[iv]. The offending provisions may not be invoked by the author of the document; they can only be invoked against the author[v]. Moreover, if a municipal body fails to comply with any provisions of the Charter, the Minister of the French Language could withhold any subsidy granted to it by the Minister until it remedies its failure[vi].

As of June 1, 2023, the civil administration will be prohibited from entering into contracts with businesses that are not in compliance with the Charter and from granting them subsidies. Charter requirements will vary depending on whether the business has five or more or 50 or more employees in Québec[i].

A business that has 50 or more employees must register with the Office québécois de la langue française and, within three months of such registration, must submit an analysis of its linguistic situation to the Office. The Office shall either issue a francization certificate or require the business to adopt a francisation program. If the program has been approved and implemented to the satisfaction of the Office, it will issue a francisation certificate.

An agency of the civil administration is therefore prohibited from entering into a contract with, or granting a subsidy to a business with 50 employees or more that does not provide the agency with a certificate of registration, does not submit, within the prescribed time limit, an analysis of its linguistic situation, does not have an attestation of implementation of a francization program, does not have a francization certificate, or its name is on the list published by the Office of businesses in respect of which the Office has refused to issue an attestation, or whose attestation or certificate has been suspended or cancelled by the Office [ii].

The Office may offer French language learning services provided by Francisation Québec to a business with five employees or more that is subject to the Act respecting the legal publicity of enterprises[iii]. If the business refuses the offer, no agency of the civil administration may enter into contracts with it or grant it any subsidies until the business agrees to implement the French language learnings services provided by Francisation Québec[iv]. However, if the business accepts the offer, but fails to comply with the terms agreed upon with Francisation Québec, it will be subject to the prohibitions mentioned above[v].

It should be noted that there are no exceptions to the prohibitions. Whether enforcement will be problematic in practice is a matter of conjecture at this point. Although municipalities can obtain some information regarding compliance by consulting the lists published on the Office website (list of certified companies, list of special agreements in effect and list of companies not in compliance with the francization process[vi]) whether this will suffice remains to be seen.

Information could also be obtained by requiring that it be provided in informal quotes or public calls for tender. Thus, the number of employees a business has in Québec and whether it has or requires a francization certificate can be verified. What would happen in the case of a contract of relatively low value entered into with a business that has exceeded the 50-employee threshold for just over six months but has not yet started the registration process ? Even the Office could be unaware at that stage that the business is in contravention of the Charter. What happens with a contract entered into on the day the contravention occurs? If knowledge of the contravention is not required under the Charter, how then can it be required of agencies of the civil administration to prohibit them from contracting? If a contract is concluded in contravention to the Charter, what will it be worth? As of June 1, 2023, the prohibition is likely to prove very burdensome for the agencies of the civil administration.

Since June 1, 2022, the civil administration has been required to use French in an exemplary manner[i]. Exemplary use of the French language currently requires the civil administration to refrain from systematically using a language other than French, i.e., in cases where it is permissible to use another language, the civil administration must nevertheless use French exclusively. However, as of June 1, 2023, the obligation to use exemplary French requires that the civil administration use French exclusively in all its written documents and in its verbal communications, subject to the Charter’s numerous exceptions[ii] which can be challenging to navigate through.

For example, representatives of the civil administration may communicate with a person in a language other than French in order to obtain the information necessary to determine whether an exception regarding the language of communication applies[iii]. However, the representative of the civil administration must use French as soon as possible.

The first paragraph of section 21 of the Charter governs contractual matters and reads as follows: “Contracts entered into by the civil administration, including the related sub-contracts, shall be drawn up in the official language”. The rule also applies to the written documents related to such contract[iv].

The above rule is subject to exceptions depending on the identity of the contracting party and the nature of the contract. The exception also applies to the written documents that relate to the contract or agreement[v]. It should be noted that additional exceptions may be adopted by government regulation.

The Charter lists the kinds of agreements and contracts that must be drawn up in in French, but also provides that a version in another language may be attached to them, for example an intergovernmental agreement[vi] or a contract entered into with a natural person who does not reside in Québec or a legal person that is not required to be registered in Québec and whose head office is “in a State where French is not an official language”[vii].

Certain contracts may be drafted in both French and another language, i.e., loan agreements, financial instruments and contracts whose purpose is to manage financial risk, such as currency exchange or interest rate exchange agreements, contracts for the purchase or sale of options, and futures contracts [viii].

Contracts entered into outside Quebec and other types of documents[ix].

Even where an exception exists, the relevant agency of the civil administration will be required to make available a French version of any part of a contract or written document drawn up only another language to members of its staff who must examine it as part of their job[x].

In all cases, products obtained by an agency of the civil administration must comply with the provisions of the Charter, particularly with regard to inscriptions, instructions for use and guarantees, unless it is impossible to obtain a conforming product in due time and there is no equivalent product that complies with the Charter[xi]. Similarly, services provided to an agency by a legal person or business must be provided in French unless it is not possible to provide them in French. However, services intended for the public must always be provided under the same Charter conditions as if the agency were to provide them itself[xii].

Lastly, it should be noted that the obligation to use French in an exemplary manner does not apply to bodies and establishments that have “bilingual status” i.e., those recognized by the Office québécois de la langue française pursuant to s. 29.1 of the Charter, including a municipality of which more than half the residents in its territory have English as their mother tongue and which has submitted a request for recognition[xiii].

As of June 1, 2023, municipalities are required to use French in their written and verbal communications. This rule applies to agreements and contracts and all communications for the purposes thereof or relating thereto unless the identity of the other contracting party or the nature of the contract allows for the use of another language.

As the legislation is silent as to whether the value of contract is also a relevant factor, there would be no exception to the rule in that regard. The Minister of the French Language is required to develop the language policy of the State and submit it to the Government for approval. The purpose of the policy is to guide agencies of the civil administration in the performance of their obligations[1]. Agencies of the civil administration to which the policy applies will then have three months to issue a directive specifying the nature of the situations in which they intend to use a language other than French in the cases where it is permissible to do so[2].

We are hopeful that the government’s language policy will clarify matters and untangle the rules and the many exceptions in contractual matters, and that they will do so in comprehensible French.