David Tournier discusses how commercial lawyers are adapting to Bill 96
While workplaces will operate more in French and Quebec’s Charter of the French Language will have more teeth, the province has always been “an island of civil law and the French language in an ocean of common law and English-speaking jurisdictions,” says David Tournier, a partner in the business law group at Lavery. Through it all, however, he says Quebec has always adapted to ensure that the province is “an appealing jurisdiction from a business standpoint.”
Bill 96 amended the Charter of the French Language by introducing new rules aimed at promoting the use of French by businesses operating in Quebec. It became law in June 2022. The amendments made the rules stricter for the use of French around communication with customers and employees, contracts between private parties, registrations, and other documentation and communication.
Since the law was passed, Tournier has been working with his commercial clients to understand its implications on daily practice and to ensure the transition is as seamless as possible so they can “continue doing business as usual,” he says.
In June, new rules came into force for adhesion contracts – contracts that are pre-determined by one party. Under Bill 96, there is a French-first rule: Companies must submit a French version of these contracts before the parties can agree to be bound in another language, if that is their expressed wish. Before, parties could insert a language clause stating that they explicitly desire to and consent to use only English in the agreement, says Tournier.
“When you're dealing with a contract of adhesion, you have to offer the version in French and obtain explicit consent to use only the English version before an english version can be executed and binding between the parties. So, there's particular care to be given to the question – which is a factual matter – as to whether this is a contract of adhesion or not.”
The rule about adhesion contracts – article 55 – has exceptions and exclusions. One is loan contracts, which do not require the French-first agreement. But, like the contracting rule that preceded Bill 96, the parties must expressly consent to use only the English version.
“There might be situations in which it's not that clear,” says Tournier. So, parties must clarify whether they have negotiated the agreement's essential terms. He says the consequences can be “dire” for failing to comply with these terms.
Tournier’s practice focuses on corporate finance. He says the legal and business communities have been working together since the law’s passage to ensure they have “commonality of practice” and can offer similar explanations to non-French-speaking entities looking to do business in Quebec.
“What is at stake here, basically, is making sure that there's no cost and no uncertainty added to doing business in Quebec as before the passage of this law.”
He says there is more apprehension than necessary from some market participants because it is in the interest of everybody involved that it is no more costly or complex to do business in Quebec. “Everybody's working in that direction.”
Bill 96 also requires businesses operating in Quebec to serve their Quebec clients in French and communicate with Quebec employees in French. The law tightened the rules around job offers being posted in French and narrowed where knowledge of another language can be a job requirement. It also created a private right of action for any Quebec resident to seek an injunction and damages for violations of the Charter of the French Language.
