Employment, Labour & Equalities Law Webinar Series | Bill 96: Impact on Québec employers

ELISA SCALI: OK, good morning. I think we're going to get started. My name is Elisa Scali. I'm a partner with Gowling WLG, practicing in the Employment, Labor and Equalities Group. I'm based in Ottawa.

Because we are meeting virtually today, and we are all based in different cities and provinces across Canada, we are located in different traditional Indigenous territories, some of which are covered by treaties. I encourage all of us to take a moment to reflect upon and acknowledge the land upon which we are living. If there are Indigenous people attending this webinar, please feel welcome to share your home community in the Q&A so that we may also recognize you.

On behalf of the ELE group, I'd like to welcome you to our first webinar of our 2023 webinar series. Today we'll discuss the impact of the new French language laws on employers having employees working in Quebec. As you may know, this is a fairly new law, so there's not an abundance of guidance from the courts or other authorities on their interpretation of this new law.

So I'm very pleased to have with us today two of our colleagues from our Gowling WLG Montreal office, Olivier Lamoureux and Cedric Marsan-Lafond. They're going to help us navigate through this new law and what it means for employers that have employees working in Quebec. We've been fortunate to have Olivier and Cedric speak at our webinars in the past, so you may already know that both Cedric and Olivier are part of our ELE team practicing exclusively in the area of employment law, providing advice to employers in Quebec.

But what you may not know about these two is that Olivier has always had a passion for writing. He truly believed that he'd become a writer when he was younger, but he never thought he'd end up drafting legal procedures. And before Cedric embarked on his law career, he was touring the streets of Boston and New York as a tour guide. So if anyone needs any advice on where to go and what to see in Boston and New York in addition to some employment law advice, Cedric is going to be your guide for that.

So before we begin our program, a few housekeeping items. The PowerPoint will be sent to you after the webinar today. So don't fret about that. You will have access to that following the webinar. The webinar is also being recorded.

So again, you'll be able to access the recorded seminar session following the webinar today. We will post it on our web page. The link to our web page, you can find in the Q&A. And if you would like to see our previous webinars, all of those recorded sessions can also be found on our web page along with an abundance of employment-related content that you might find useful and informative.

Finally, if you have any questions throughout the presentation, please feel free to add them to the Q&A. Olivier and Cedric will review all of your questions, and they will address them. But not in the session today. They'll prepare written responses and will provide you with that following the webinar today when we send you the PowerPoint. So let's get started. I'd like to pass things over to Olivier.

OLIVIER LAMOUREUX: Thank you, Elisa. And thanks for joining us today. I know this is a very popular topic. So we'll do our best to cover all the angles. Today, our game plan is fairly simple. We will start by talking about the recent modifications to the Charter of the French Language. So we will talk about also the impact of the Charter on remote workers.

So if you have people working remotely from Quebec, this new piece of legislation will have an impact on your operations. We will then proceed to talk about the translation process itself. So how and when you have to register with the OQLF. And just for reference, the OQLF stands for Quebec Office of the French Language. I will refer to it as the Office simply.

And we will finally talk about the consequences of non-compliance both from a penal and administrative standpoint. So about the recent modifications to the Charter of the French Language, just to give you some context. Thank you. So the origins of Bill 96, you might know about Bill 101, which was the original Charter of the French Language in Quebec and led to much press coverage since its adoption in 1977.

I wasn't there to you to witness that, but I was told allegedly that [CHUCKLES] it was a very important topic back in the days. So Bill 96 is the first major amendment to the original Charter of the French language. It was passed by the National Assembly of Quebec in June 2022, so it's been nearly a year now. And at the time you had 78 members of parliament who voted for that Bill and 29 against.

And interesting fact is that the Parti Québécois voted against this Charter. And you would think that a separatist party would be delighted to have this kind of act passed at the National Assembly. But they thought at the time that the act was not going far enough. So they wanted something more stringent at the time.

So when we talk about Bill 96, the goal of the legislators regarding that bill is simply to increase the use of French language in Quebec workplaces, and in particular by clarifying the requirements for written documentations and communications with employees. So before Bill 96, we just had very general provisions saying that, well, the language of work in Quebec is French, but we didn't have much details onto how this was articulated on a day-to-day basis. Now, we have a much clearer picture.

So next slide, please. Thank you. As I was saying, Bill 96, of course, is going to have a huge impact on workplaces. But also in many other territories, including public display and commercial advertising, trademarks registration, customer services. Of course, if you do business in Quebec, registration of security interests and also litigation.

If you are entering into a legal dispute in Quebec, this Bill 96 will have an impact on how proceedings must be drafted. And it should be noted that just a few weeks after the coming into force of Bill 96, the Superior Court of Quebec suspended the application of two provisions requiring that legal proceedings in Quebec needed to be translated by certified translator in order to be deemed receivable.

So we can imagine what kind of burden that represented for parties who were initiating or involved in a dispute from outside Quebec. So right now these provisions are still suspended, and we are waiting to get a hearing on the merits. So now, I will pass on to my colleague, Cedric, to talk about the main changes arising from this Bill 96.

CEDRIC MARSAN-LAFOND: Thank you, Olivier. And as you mentioned, the adoption of Bill 96 is pretty recent. We're talking about June 2022. And lot of the modification to employment and labor were effective immediately upon adoption. So the topics that we're going to cover today with some exception are already in force. And there are additional requirements that will enter into force in the following years, June 2023 and June 2025.

There's a lot of modifications that have been adopted with Bill 90. And just to give you a brief overview, and we'll go over every point in detail in this presentation. But we're talking about a broader scope of the documents and computation that must be provided in French by the employer. The publication modalities of job posting or job offers is what mentioned in the PowerPoint. But we're talking about job postings here in the Charter.

The prohibited practice is related to the use of French by employees. These are new prohibited practice that have been introduced in the Charter. It's also new recourses that have been granted to the employees that can now file complaints with the CNESST, which is Quebec's Labor Board.

What are the reasonable means that an employer must implement before imposing the knowledge of another language than French and the prohibited discrimination related to French and the use of another language? So we'll go over all those points.

Since the adoption of Bill 96, there's a much broader scope of documents that an employer must make available in French. Before the adoption Bill 96, the rule was that every communication to the staff of the employer needed to be in English and needed to be in French. That has been interpreted by the regulator, which is the [INAUDIBLE] and the tribunals as meaning every communication to all employees related to conditions of employment.

So if you had a broad communication to all your employees or [INAUDIBLE] a salary, to pension fund insurance, that needed to be in French. Now, the rule has been extended, and there are several categories of documents that need to be provided in French, including offers of employment, transfer, promotion. When we're talking about that category, we can talk about job postings. And there are additional rules about job postings, so we'll go back to that category. But every offer basically to employ somebody.

Employment agreement is another part of the law that changed after the adoption of Bill 96. Because you might remember that before Bill 96 and your employment agreements, you most likely had the provision stating that the party has agreed to conclude the agreement in English. And that no longer works in many scenarios. Because now, there's a difference for employment agreements, whether they are adhesion employment agreements or non-adhesion employment agreement.

An adhesion employment agreement is an agreement for which one party stated that essential stipulation, and there were no possibility to negotiate from the other party. That's the case of most employment agreements, because oftentimes, the employer will dictate the conditions. There might be a slight negotiation on the salary or the number of weeks of vacation. And then the employee must find the conditions and the employment agreement is adopted. In that scenario, it's an adhesion employment agreement.

If you only negotiate the salary, it's most likely unsufficient to make a qualification that the employment agreement is not a negotiable contract. You will need some form of substantial negotiation. We're talking about a high executive that would come in with his own counsel, modify clauses and employment agreement. That would be a situation where it's not an employment agreement that is an adhesion contract.

So the rule now is, if you have an adhesion contract, which is an employment agreement, it needs to be provided in French and English at the moment of concluding the contract. And then the parties can agree to sign whichever version they want. So if they want to sign an English version, both version needs to be provided to the employee, and then the party has to agree that they're going to sign the English version of the agreement.

The rule's a bit different if you're in the other situation. If it is not an adhesion contract, then the parties can agree to sign an English version of an employment agreement without having to provide both versions. It's going to be important to provide those both version, and we'll come at it in the sanctioned part. But you want the enforceability of those contract.

So it's going to be important to respect that rule. And if your employment agreements are not already translated, I would recommend that you translate those employment agreements, or that you reach out to outside counsel to help you with that task. Also, the language, you might want to update the language related to the language requirement in the agreement, just stating that you agreed to sign English version would not be accurate.

We're recommending drafting a clause that provides that both version have been provided. And as such, the parties now agree to sign it in this version. So this will need to be updated in your agreements also.

Another category is that written communication. That's very broad, because it targets every communication, even after termination of employment with all or part of the staff, a worker in particular or an association of worker representing all or part of the staff. So basically, we're targeting here every communication coming from the employer.

What is a communication coming from the employer? So if we're talking about communication from headquarters, from employees, it is targeted by this disposition and will need to be provided in French or in French and English, which French being available in similar conditions.

It most likely does not include communication between colleagues. Doesn't mean that every communication in the workplace must now be in French. So if I'm talking with a colleague about the project, it is not included in the scope of written communication from the employer.

What is more of a gray zone here is communication coming from supervisor to which I report. If those communication are in the sense of a link from the employer, if we're talking about conditions of employment, salary remuneration, directive from headquarters, those will most likely need to be translated. But there's a difference here if we're talking about the more operational basis.

If we're talking about day-to-day operations, project, management of a team about the tasks that need to be completed, that could be argued that it would not fall in the scope of that disposition. So every situation must be assessed on a case by case basis. But the supervisor situation is more of a gray zone right now. And there's not a lot of guidance that has been issued.

This bill has passed in June 2022. We don't have any case law yet, and there's no official guidance that has been issued by the regulator. So these are all interpretation of the act that could be modified in the future, depending on what is the guidance and the case that's going to be published.

OLIVIER LAMOUREUX: Just a quick note to what Cedric said about the employment agreements. You don't need both versions to be signed. So that is a question that we are being asked quite often. Only if you want to sign the English version, you just want to-- you have to make sure actually that the French version is presented prior to signature.

That's it. So this is your obligation. And as Cedric correctly mentioned, take for granted that 95%25 of your employment contracts are probably contracts obligation, in my experience at least. So, yeah.

CEDRIC MARSAN-LAFOND: And then other point, there's a transition disposition in the act about existing employment agreements before June 2022. And the rule was that the employee could ask for the translation of his employment agreement free of charge in the year following the adoption. This window is coming to an end, because it started in June 2022, and it will end in June 2023. So those are for your existing employment agreements signed prior to June 2022.

There's also a new category of documents that must be available in French. And if available in another language than French, must be available in the same conditions in French. We're talking about employment application forms, documents related to the conditions of employment, and training documents produced for the staff.

When we're talking about documents relative to the conditions of employment, it's a very broad category. Basically, it includes policies that would apply to an employee, could include handbooks with disposition that applies to Quebec employees, everything related to compensation, so as increase of salary letters, insurance, pension funds. Basically anything related to the employment of the employee and his conditions will be included in that [INAUDIBLE] and it's very broad.

Training documents for the staff is also a new category. So we're talking here about every written documents related to training, could be a PowerPoint could be a booklet. But this disposition-- and it's valid for every point that was previously mentioned-- does not target verbal communication.

So before we talked about written communication coming from the employer, does not mean that the employer must communicate in French verbally with his employees. It does not mean that there's no specific disposition stating that any verbal training must be in French. It's the broader and more general scope of the Charter that will apply for those verbal communication basically.

So every employee is entitled in Quebec to work in French. And then you cannot discriminate against an employee because he's exclusively French-speaking, or he doesn't understand another language than French. And you cannot require-- and we'll get back to this rule later. But you cannot require the knowledge of another language in French from an employee if it's not required by the position, and if it's not justifying the new test that was developed by the Charter.

So we have to keep those general rules in mind. But there's no specific rules stating that every verbal communication or verbal training must be in French. So that's a bit of a difference. Section 41 of the Charter [INAUDIBLE] is targeting written communication, written documents.

OLIVIER LAMOUREUX: Just an additional note regarding training documents. Because we've been asked that question. If you have an instruction manual, for instance. If you are working in a very technical business. If the document comes from a third party, external third party, and is in English, well, the OQLF told us in their guidelines that this needs to be translated in French as well. So it's not because it's external and made by a third party and that you don't have any available French version that you are exempted from this obligation.

CEDRIC MARSAN-LAFOND: Moving on to the next category of document, which is job offers. This is the official translation that was in the chart of the French [INAUDIBLE]. Might be a bad translation on the part of the legislator, because we're more referring to job posting here. So if you're making a job posting, must be available in French. If made in another language than French, there's additional rules that applies.

You have to ensure that the job posting is posted at the same time in French and in English by means that can reach a similar target audience of comparable size. So if you're using a website to post your job offers, for example, Indeed, Monster, et cetera, you need to post both version and should be accessible with the translation button or switching back with the French and English version.

Similar rules would apply for newspapers. So if you're posting in an English newspaper reaching a target audience of 10,000 people, you should try to reach-- you must publish that job offer in a French newspaper that would reach a similar audience. It's all about posting at the same time in French and in English.

If you require the knowledge of another language than French in the job posting, you must now explain in the job posting why you're requiring that knowledge. There's several justifications that could be put forward. What we've seen from clients at this stage is for example this position is in contact with the public, you'll need to serve English customers. Or this position needs contact with headquarters, you'll be in constant communication with English-speaking stakeholders.

So you'll need to provide some form of justification, and each will need to be adapted to each position. And we'll go back later in the presentation on when you can require the knowledge of another language than French for an employee. Because it's not going to be the case for every employee you're going to have. And at this stage, I think we have a fact scenario for you.

OLIVIER LAMOUREUX: Yeah, it's a housemade Q&A session. So we try to come up with questions that you might have and provide you with the answers right away. So let's say we have an employer that has several establishments in Canada, including one in Quebec. And we're talking physical buildings here.

The employer wants to open a new position within the company, and its existing employees will be able to apply for said position. The position in question will be remote, and the incumbent will be able to work in the province of his or her choice, including Quebec. So the question is, what are the Charter of the French Language requirements for that specific job posting?

CEDRIC MARSAN-LAFOND: So you're in a situation here where you already have employees in Quebec. You have an establishment in Quebec. And you're opening a new job position on which Quebec employees will be able to apply. In that situation, the guidance that we received from the OQLF, it's that job posting will be targeted by the disposition of the chart French language. Because Quebec employees will be authorized to apply on the job posting.

In order to be compliant, as I mentioned previously, the job posting will need to be in French and in English, must justify the reason why we're requiring English as one of the conditions of employment, and will need to be published at the same time in French and English in means of a nature reaching a targeted sense of a comparable size. And the situation could be a bit different.

If you don't have existing employees in Quebec, if you don't have any establishment in Quebec, there would be another situation that would need to be assessed on what are your activities, how the company is structured. But in the scenario where you already have employees in Quebec, and you're opening a job posting within the company, it's pretty clear at this stage that the job posting would be encompassed by the Charter if your Quebec employees can apply on it.

There's also prohibited practices, so you cannot dismiss, lay off, demote, transfer somebody because he's a French speaker, or he doesn't have a sufficient knowledge of another language, doesn't understand another language. And the Charter, with this new section 45, added a lot of forbidden prohibited practice that an employer cannot take reprisal on.

For example, to deter a staff member from exercising a right under the Charter of the French Language. Because the staff member does not have the knowledge of another language. Because the staff member is part of a Francization company, and we will get back to what is a Francization company. But once it is established, cannot take reprisal, because somebody is participating in that committee.

You cannot take a reprisal against staff member because he's refusing to endorse documents that needed to be signed by the Francization company, which is a new requirement of the Charter. So if he, in his opinion, he does not want to endorse those documents for xyz reason, not take a reprisal for that. You cannot also take a reprisal against a staff member that is communicating in good faith with the OQLF, the regulator, or is cooperating an investigation. Basically a whistleblower legislation disposition here. So all of those are prohibited practices.

There's also-- and that's a question that we receive often-- when, as an employer, can we require an employee to speak another language than French. Most often, not English. Before, it had to be linked to the performance of the person duties. But now, there's an additional test, which is the employer must take all the reasonable means to avoid imposing such requirement. And what does reasonable means mean?

Well, the Charter has established a test of three criteria. First of all, the employer must assess the actual language needs associated with the duties to be performed. You must make sure that the language knowledge already required from other staff members is insufficient. And he must restrict as much as possible the number of positions involving the duties that require the knowledge of another language than French.

So it's not as easy as saying, well, you're in the position that we feel we would be more comfortable that you speak English. It would be a plus value, thus, you need to speak English. You'll have to ask to the staff, see what are the actual resource that exists within the company who is already speaking English.

How can I restructure my activities to say, well, I might have, for that position, part of my workforce that can speak only French, and for example would serve French customers. And part of my workforce that will speak French and English, and will serve my English facing customers. And it's all of a balance. And if audited by the regulator, establish or demonstrate that you took those reflection, and you pass through those criteria. And after passing through the criteria, you assess that English was a requirement for the position.

There is an additional consideration here, is that the Charter provides that those disposition, this test, must not create an unreasonable reorganization of the company. So you must try to reassess your resources, try to create a position where English is not a requirement of employment. But this does not lead to an unreasonable reorganization of the company.

For example, you would not be required to take somebody in marketing to do a sales position, because that person in marketing is already speaking English. It all needs to be reasonable within your organization. And another question that we receive is that the previous criterion are not-- it's not one or the other. It's you have to answer to all three of those criterias and to establish that you complied with this [INAUDIBLE] and the Charter.

And at this stage, we have a second fact scenario for Olivier. So it's a situation, for example, we have an employer that has a retail location in Quebec, one establishment. That employer employs one general manager, who is in close communication with headquarters and several floor employees that are serving clients. And some clients are French-speaking and English-speaking essentially.

And now, how, as an employer, are you compliant with the Chart of the French Language? From who may you require the knowledge of another language than in French in that situation?

OLIVIER LAMOUREUX: That's a very good question. And this is the kind of exercise that we do on a weekly basis with the OQLF when we are assisting our clients. So basically, the current situation is not compliant with the Charter if you ask all these people to know English.

So according to the new requirements of the Charter, again, and as Cedric correctly mentioned, in order to require the knowledge of a language other than French, the employer must establish that the performance of the person's duties requires knowledge of that language, and that the employee has taken all reasonable means that were previously discussed to avoid imposing such a requirement.

So as Cedric mentioned, the second criteria implies the following steps. So you need to assess the actual language needs associated with the duties themselves. You need to make sure that the language knowledge already required from [AUDIO OUT] numbers is insufficient for the performance of those duties.

And when I say this, what I mean is, you have to look at are there any other people who are already mastering English who could take over these duties within the company? And most of the time the answer is no, because they work in different departments, and they already have full time jobs. But you really have to think that through as part of the exercise. And also, you have to restrict as much as possible the number of positions that will be impacted by these requirements.

So concretely speaking, the employer in our situation could be justified in requiring English or the knowledge of English from the manager. So the manager must indeed communicate with stakeholders located outside the province of Quebec that are exclusively English-speaking. So that makes perfect sense. That's you must speak in English.

And also, there is only one manager. So nobody else can take over these responsibilities. Thus, it is not possible to divide the task. So that French-speaking employees perform the tasks that can be done in French. The answer is very different for the floor staff. It may be justified to require that some of them speak English or master the English language to for example serve the English-speaking customers.

That being said, it would probably be unreasonable to require this from every single floor employees. The employer could work to ensure that one English-speaking employee is available per shift, for example. And the employer will also need to verify that the current state of English speakers, among its existing workforce, before imposing a requirement to new hire. So they have to assess the actual situation before thinking about requiring the knowledge of the English language for future hires.

CEDRIC MARSAN-LAFOND: Another disposition that was added in the Charter [INAUDIBLE] language is related to the work environment free from discrimination and harassment. You can now have as an employee a duty to provide this free environment, free from discrimination, harassment for employees. And based on the fact that they're French-speaking, you're not speaking another language than French, you demanded compliance with the provision of the Charter, not to be discriminated or harassed on that basis.

As an employer, you must take every reasonable steps in your power to prevent such conduct and make it cease if brought your attention. Those disposition are very similar to the existing psychological harassment disposition of the act respecting labor standards, and there have not been interpreted yet. But as what we would recommend to be compliant with those disposition and proactive as an employer is, of course, include those in your prevention policies related to harassment, discrimination. Include those factors in your training.

Basically establishing as an employer you took every steps to prevent discrimination, harassment based on language. And if you're made aware of, will investigate, take the measures that need to be taken as an employer. It's a very complex situation. But you should be proactive on one end and reactive when you receive any indicators that there might be discrimination or harassment in that regards.

There's also new recourses that have been introduced in the Charter of the French Language. Two recourses for employees with this CNESST, which is Quebec's Labor Board. One of which is prohibited practice. We went through the prohibited practice, what is a prohibited practice earlier in this presentation.

Basically, this mechanism provides that if you're a victim for prohibited practice, as an employee, I can file a complaint with the CNESST in the 45 days following the prohibited practice. Then we're referred to mediation. And if mediation is not concluding, well, we're referred to the Administrative Labor Tribunal, where the CNESST can represent the employee, which is a presentation free of charge. So it's a very important recourse for employee.

The other recourse is a recourse for victims of discrimination, harassment related to the use of French in the workplace. And that will follow the same guidelines as the existing recourse of psychological harassment under the act respecting labor standard, which provides that you have two years from the last incident of discrimination, harassment to file your complaint. And once again, it's with the CNESST.

If it does not settle in mediation, it will be investigated. And if it's substantiated on the conclusion of the CNESST, they will push this case to the Administrative Labor Tribunal, and they will represent the employee free of charge once again. So very important recourses to keep in mind.

OLIVIER LAMOUREUX: And also, this is going to be the elephant in the room. When we look at this slide, the employee might also file a complaint with the OQLF to the office directly as well. Whether its founded or not, this could potentially trigger an audit. So this is something we obviously want to avoid, especially if you don't have to register with the Office, as we will be discussing later on.

CEDRIC MARSAN-LAFOND: Now, a very popular topic amongst our client is how does a Charter of the French Language advise to employers with remote workers in Quebec? Because there's a lot of business that are based in the province, based on another country, and have a few remote workers in Quebec. And now are questioning whether the Charter applies to those remote workers.

As a very important disposition in our Civil Code in Quebec that didn't really was not the star of the show before the remote work, but now is important is section 3118 of our Civil Code, which provides that if you're working in one specific jurisdiction, and for example your employment agreement is based on other jurisdiction. Let's take the example that your employment agreement is under Ontario law, but you're performing remote work in Quebec. So you're usually working in Quebec.

Then that disposition provides that you cannot renounce to the mandatory provision of Quebec law, which is a lot of employment and labor disposition that would apply. If you don't have any designation of law in your employment agreements, for example, you concluded an employment agreement, but you didn't specify which law would apply, and that disposition of the Civil Code provides that is the law of where you usually work. They will apply, so in that scenario, the law Quebec.

The Chart of the French Language most likely public order, and it could be qualified as a manager provision. So by applying that section of the Civil Code of Quebec, if you usually work in Quebec, an employee could [INAUDIBLE] claim that the Charter of the French Language would apply. It should also be mentioned that the OQLF, the regulator's position on applying the Charter to remote worker has evolved through the pandemic.

In the beginning of the remote work and the pandemic, following the pandemic, the position was that the regulator would apply the Charter to employers that, one, had physical establishment in Quebec, which would not include a remote workers home, or, two, employers that had activities, clients selling goods or services in Quebec. So if you didn't serve goods or services in Quebec, and you didn't have a physical establishment, then the regulator took the position that the mere presence of a remote worker would most likely be not sufficient to apply the Charter.

Most recently, that administrative position has evolved according to our communication with the regulator. They will try to enforce the charter to employers that do not have physical establishment or commercial presence in Quebec, but do have remote workers in Quebec. And they're basing their interpretation of section 89.1, which is a new disposition of the Charter, which provides that no provision of this act may be interpreted in such a way as to prevent its application to any enterprise or employer carrying on its activities in Quebec.

This is a current administrative position of the OQLF. This has not been tested in front of a court of law. And of course, it's an administrative position has changed in the past, could change in the future. You should do periodic verification on what's the actual position and the actual interpretation that's enforced at the time of your question.

OLIVIER LAMOUREUX: Yeah, [INAUDIBLE] employers are really walking on thin ice regarding this specific situation. So we have another scenario. That's our third one. So and this is an actual problem that we are facing in our day-to-day business. So let's say we have an employer that is a company located, I'm going to say Ottawa. And that employer does not have a physical location in Quebec.

The employer does not offer goods nor services in Quebec and doesn't have any customers in Quebec. Since the pandemic, however, the employer allows remote working for its employees. Previously, all the employer's employees were located in Ottawa itself. So after the introduction of remote working, we now have five employees that have relocated in Quebec, and they are working from that province. So the question is, does the employer have to translate the documents related to working conditions for these employees?

CEDRIC MARSAN-LAFOND: So according to the latest administrative position of the OQLF, that Charter would apply to these employees. Because you have remote workers in Quebec, and that aligns with that principle of this section of the Civil Code that we mentioned in the previous slide, which is that employees usually performing work in Quebec would be entitled to the mandatory provision of Quebec law, which most likely includes a disposition of the Charter.

If you combine that with the administrative position, the Charter most likely applies to those employees and all this position, including translation of documents and the category of documents related to the condition of employment, including policies, remuneration document, insurance document, pension documents, and books would need to be translated for those Quebec employees.

OLIVIER LAMOUREUX: Just a quick word before we move on to the next slide, about federally-regulated employers. So right now, the Quebec regulators, they obviously take the position that the Charter will apply to, or should apply to these employers. And obviously, all the federally-regulated employers are taking the positions that the Charter does not necessarily apply to them as they argue with other Quebec-based laws.

But recently, you might have seen that in the news. We had the CN and Air Canada that decided, at their own initiative, that they would comply with the requirements of Bill 96. We don't know to which extent exactly.

But this, in my view, will probably lead to other corporations and employers making the same decision notably for reputational reasons at this point, and especially in the context of a labor shortage that we are experiencing right now. So just wanted to take a few minutes to say that. And this will obviously be debated before course in my view.

So about the Francization process itself, there is a lot to say about it. But I'm going to try to keep it simple for now. So as of June 1, 2022, there's been an acceleration of the Francization and the registration process. So you now have reduced time to comply with the process.

So for example, the time to provide the OQLF with an action plan following a registration is shorter. And the time to provide the analysis of your linguistic situation within the company is shorter as well. And one very important date that needs to be remembered is June 1, 2025.

So on that date, there will be a reduction of the threshold from 50 employees to 25 employees in Quebec regarding the requirements to register with the OQLF. So right now, as we speak, if you have 50 employees or more for a period of six months or more, you have to register with the OQLF. And this number will be reduced to 25 in about two years.

So the registration would also need to be completed within six months of the end of the six month period where you reach that average number of 25 employees in Quebec. [INAUDIBLE] Yes. Good. You're already there.

[CHUCKLING]

Sorry. So let's talk about the different steps. I'm going to try to guide you, so you get a better understanding of the goals of the Office here. So registration with the OQLF is fairly simple. To be honest, it's basically a form that you fill, doesn't take very long. And they will ask a couple of questions, but nothing complicated really.

So once that is done, you will eventually receive an attestation of registration delivered by the OQLF. And this is where the clock starts to tick, if I may say. So from the date you receive the attestation of registration from the Office, you now have three months to transmit the analysis of the linguistic situation in the company to the Office. And what does that mean?

So analysis of the linguistic situation is basically, it's about 17-, 18- page form that you will need to fill. And they will basically ask a bunch of questions regarding the use of French within your company. So you will have questions on the structure of the company. Where is your headquarter located? Where are your other establishments? And do you have establishments in Quebec?

They will ask questions on the percentages of customers and sales that you have in Quebec. They will ask if senior executives or member of the boards speak French. And I mean, there's no reason to panic here. I know this has been triggering a few of our clients. But let's keep in mind that this linguistic analysis aims at giving a general view of the situation within the company.

None of these criterias will be determinant regarding next steps. So if your senior executives are all based, let's say, in Calgary, and all speak English, this might not be a problem. I mean, it's not necessarily going to be a problem. So let's put it that way. Because there will be other criterias to assess.

So also, the Office will ask if you require the knowledge of English for some positions. And which are these positions? How many are they? And why are you requiring the knowledge of the English language? So everything Cedric mentioned regarding the internal analysis of do I take reasonable means to require the mastering of English before imposing it?

This will become very important at that stage. Also, they will be asking questions regarding your internal communications. Are oral and written communications, is there anything that is done in French in that regard? What about HR documentation? So all your handbooks, policies, do you have French versions available to your employees based in Quebec?

It will also ask questions about internet and websites as well as softwares used by employees. So does a French version exist for the softwares? And if not, would it be possible to have a French version or to translate the version you already use? They will ask questions as well on databases. And of course, external communication with the public.

So if you are engaged with customers based in Quebec, they will obviously ensure that you are speaking French to these people. And finally, they will ask a few questions about public signage, so your logos. And if you have panels outside, if you have a physical presence in Quebec, they will ensure that this is all compliance with the [INAUDIBLE] requirements.

So this is the linguistic analysis. Remember, you have three months to do that. We're there to help. We will definitely assist you in filing this kind of form. Because it can be a bit burdensome when you first look at it, especially that the form is not available in English, of course. So we will be glad to assist you with this.

So once the analysis of the linguistic situation is filled and transmitted, the office will have a look at it, and they will determine whether or not the French is generally used at all levels of the company. And if they come to the conclusion that the answer to that question is yes, then you get to receive a Francization certificate, which is kind of the Holy Grail, if I may say, of the process.

But you're not off the hook yet, because you still have to report every three years to the OQLF with regard to the situation within the company. If the Office is of the view that you don't comply sufficiently with the requirements of the Charter, they will ask you to put in place what we call a Francization program or an action plan. That's a synonym.

And they have pretty large powers in that regard. So they will basically look at every criteria I just mentioned, where you don't meet a sufficient threshold regarding the use of French. And they will say, well, you have this [INAUDIBLE] and this. You need to improve that. So you will need to have metrics to see and to make sure that you are improving on those topics and the Francization program.

I mean, this is a back and forth conversation with the OQLF. So I said, they will impose an action plan. They will give you major guidelines. But at the end of the day, you will be responsible for establishing the plan and in any concrete actions that will come out of it. So and this is something I think really important to mention.

The OQLF, even though they got some bad press over the last months, they don't have a very coercive approach. It's more of a collaborative approach, in my view. So they're really engaging in a conversation, where they want to see improvements. And, I mean, depending on the agent that was responsible for your file, because this is a variable that has an impact. That they are really open to discussion.

So if you feel like you need some extra time to put a special measure in place, you can ask for it. So it's really a conversation. They need to see that there is a will to comply with the Charter, and that they are actual and concrete actions that are taken. So at the end of the day, this is what you have to keep in mind.

Francization committee. Just a fix of water. Sorry. [CHUCKLES] So if you have more than 100 employees in Quebec right now, you need to have a Francization committee. So if you don't have, please call us. Because you might be in trouble.

Francization association committee may be imposed by the Office even though you have less than 100 employees if they think that this could be useful to help you reach your goals of complying with the Charter in its whole. So Francization committee, they meet at least every six months when you have one.

They basically provide the OQLF with the list of members of the Francization committee itself, and each subcommittee, and as well as any changes to this list. New obligations arising from the Charter include the obligation to consult the OQLF before determining how committee members will be elected. So before you are forming your committee, you need to consult with the OQLF, so to get their advice on am I on the right track here?

Because, yeah, the Francization committee has a certain number of positions. It's a parody committee. But how do people get elected? So this is when the OQLF steps in.

Also, regarding every meeting that they have minutes of those meetings will need to be taken and distributed to members of the committee after each meeting. And the committee will be responsible for distributing the list of committee members to the company's employees. Or in this case, the company will probably be responsible for distributing this list.

So regarding the composition of the Francization committee, I told that there was a specific number of people involved in that. We're talking about six people. So it's three people from the workers and three people representing the employer. Basically, the responsibilities of the Francization cessation committee is, well, first and foremost, to complete the analysis of the company's linguistic situation. So what I've just mentioned.

They would be responsible for filing the famous form. They will be responsible for the development of a transposition program or an action plan, if that needs to be done. They will be responsible for the monitoring the application of the action plan itself.

So they are really involved on a daily basis in ensuring that not only there is a plan, but that the concrete actions are actually being performed. They will be responsible as well for preparing and drafting a report on the implementation of this program, which report will be submitted directly to the OQLF. And as I mentioned, once you get the certification, every three years, they will be responsible for drafting the report to the OQLF.

So as you can see, they have a very important role. And keep in mind that if you don't have a Francization committee, whether it's because you have less than 100 employees in Quebec, or because the Office thought that you didn't need one. All these responsibilities as I just mentioned will, of course, be on the employer's shoulder. So very important to remember.

Now, let's talk about consequences of not complying with the Charter. So of course, you will potentially be facing penal sanctions that can vary from $3,000 to $30,000 for corporation and from $700 to $7,000 for individuals.

Interesting fact here, when an offense is committed by [MUTED] or an officer of a legal person or moral person, the fine is double that of the individual for this offense. So it's kind of important to remind that. And as well, the fines will be doubled in case of an additional offense and tripled for any subsequent offense.

And offenses that lasts more than one day. So if you're not compliant, that's one thing. But if you stay in a situation where you don't comply more than one day, so this offense will be treated as separate offenses. And that means that a new fine will be imposed on each day when you are violating the Charter.

So again, I don't want you I don't want you to scare you off with this. This is what the law says. But to get to this point of receiving a penal sanction, you really need to show the OQLF that you're not collaborates. That you're are not going to implement the Charter in your business and that you are a bit cavalier in your approach.

Other than that, I mentioned that they have a collaborative approach in mind. So they will talk to you before giving you the fines. They will ring the bell, and say, well, this is not compliant. You should do this and this and that. And if you don't collaborate, then you can expect the sanctions to come.

There are also potential civil sanctions that you could be facing. So the first point here in this slide is very important. The provisions of a contract that cause injury to a party by contravening to the provisions of the Charter may be declared void on the application of the person who suffers a prejudice from that violation.

So concrete example here. Let's say you have employment contracts signed in English, and you don't provide-- you don't present the employee with a French version beforehand. And the person signs that. And the employment contract contains non-compete and non-solicit obligations.

Well, you are basically causing potentially a prejudice for this employee, because you will try to enforce those clauses, and the person will-- I mean, the person manifestly, if they say that they don't understand the clauses, their prejudice is that they cannot work elsewhere after the employment relationship. So in this specific case, these provisions could be declared null and void. So it's as if they were not written basically.

So really important to keep in mind. So I will pass on to the administrative sanctions now. Because this is a novelty, again, so the government may, after obtaining the opinion of the OQLF, suspend or revoke a permit or any other authorization of the same nature if the company that is the permit or authorization holder repeatedly contravenes the provisions of the Charter despite any order issued by the OQLF.

Again, you have this collaboration approach in the air. So and despite any penal proceedings taken against the company owing to such contraventions. Interesting fact, the OQLF can publish. And they do it a list of delinquent companies that have refused to issue-- to which they have refused to issue an attestation or whose attestation or certificate has been suspended or canceled in the past.

So here, you have, again, a reputational risk. But also another consequence, if you are involved in the public sector, because the civil administration cannot enter into a contract or grant a subsidy to a company that does not have an attestation of registration and should have one that has not provided the OQLF with a linguistic situation analysis within the required time frame that has no attestation of implementation of a Francization program or Francization certificates.

And if the name of the company appears in that no famous, or should I say, infamous list of non-compliant companies. So real and concrete potential consequences for noncompliance. It's about fines. It's also about losing businesses. So that concludes the section on the sanctions.

I see that we have a very large amount of-- very large number of questions. We will make sure to review them and provide them with, well, hopefully clear responses. By the-- I would say, at the end of the week, maybe beginning of last week. So this is our time frame basically.

And in the meantime, of course, if you have any additional questions that comes to mind, you can simply reach us, and we will be happy to assist you. So back to you, Elisa.

ELISA SCALI: Thank you so much, Olivier and Cedric, for walking us through that new legislation that with a lot of information. And we see that there are some follow up questions. That's not surprising, because there's a lot to learn here. I think one of the things that I heard today that was great news is that the OQLF is being collaborative. So if employers need to work toward compliance, they probably have time to do that as long as they're showing the will to do that.

And as you said, if you have questions, they will answer the questions in the Q&A. If you have any follow up questions on your specific requirements to become compliant at your specific organization, Olivier and Cedric are available to help you. We have other colleagues as well in our Montreal office. You can reach out to the professional that you deal with normally, and they will connect you as well. So thank you again.

I just want to say your feedback on these webinars is very important to us, so we will be sending out a survey following the webinar today. And if you would take a few minutes to complete that, we would be very appreciative. So again, thank you Olivier, Cedric.

I wish everybody a great day today, and we will see you at our next webinar, which is coming up in April, near the end of April. We'll be sending out the invitations for that webinar shortly. Thanks, everyone.