Law in Quebec

“The regulations kind of help to smooth over the implementation of Bill 96 as a whole,” remarked Émile Catimel-Marchand, a Montreal lawyer with McMillan LLP specializing in financial services. “It does not represent a change on principle, but it’s a change in how it might be practically applied in a way that makes sense.”

The two regulations “interact together to create certain opportunities” that will allow the exemption from the use of French in research, noted Jean-Raphaël Champagne, a Quebec City lawyer with Fasken Martineau DuMoulin LLP specializing in commercial, regulatory and competition law.

“This is very important for industry involved in research as it would have been very complicated if the documentation had to be in a French version just for Quebec,” said Champagne. “Apart from the fact that it’s an administrative burden to translate a document, which was the least serious of the consequences, there could have been problems with the consistency of the methodologies used at the sites in Quebec and elsewhere, and there could have been problems with the reports on undesirable incidents.”

LANGUAGE OF CIVIL ADMINISTRATION

The regulation respecting the language of the civil administration mitigates the duty for the Quebec government to use French exclusively and in an “exemplary manner,” and allows the civil administration under limited circumstances to communicate and contract with businesses in a language other than French. The regulation authorizes the civil administration to communicate in another language other than French with a head office or an establishment of a business located outside Quebec, even if that business has an establishment in Quebec.

Equally important, the regulation broadens the number of circumstances where the civil administration can use a non-French version of a contract. In other words, contracts in some cases can be drafted and executed in English, and then be translated into French. The regulations outline 18 such situations, including when there is a need to encourage foreign participation in public tenders, when written contracts sent to an agency of the civil administration under a contract are intended to be used outside Quebec, when an organization of the provincial government contracts with a supplier or service provider and another government where the official language is not French, and in cases where it is “impossible” for an agency of the civil administration to obtain in “due time” and at a “reasonable cost” the product or service or an equivalent.

This regulation notably also allows parties to choose which version of the contract will prevail in case of a divergence. In short, it is now possible to specify an English version of the contract governs, but if it’s not specified then the French version will prevail, pointed out Alexandre Fallon, a Montreal litigator with Osler, Hoskin & Harcourt LLP who advises clients on regulatory and statutory compliance, including the Charter.

“The practical usefulness of this is for foreign businesses that contract with the Quebec government or entities that are under the jurisdiction of the Quebec government,” said Fallon. “They will be able to contract in English only, provided that the governing language is English and a French translation of the contract is prepared after the fact.”

While Bill 96 requires businesses who apply for a permit or subsidy from a Quebec authority to do it in French, the regulation now provides exemptions, such as in the case where the document is also sent to a third party, in some research contexts, and when the documents come from a head office outside of Quebec.

The new regulation also provides grace periods until either June 2025 in cases where the exclusive use of French would “compromise the carrying out of the mission” of the agency of the civil administration or until June 2026 for companies that are “offside” on their francization obligations in cases of emergency or if those companies are the only ones able to deliver the service or product.

“The grace periods will give some leeway to speak or write in English to counterparties while people get used to the new reality of their life,” said Catimel-Marchand.

But the exceptions stipulated in the new regulation, in effect as of June 1, are in some cases illusory, particularly in matters dealing with contracts, point out legal pundits. It is a “widespread practice” within the Quebec government to require contracting in French even though it is theoretically possible to contract in English, noted Fallon.

“Where the government has little leverage on a critical supplier that they absolutely need to contract with, this would give them the flexibility of entering for that contract in English only with that critical supplier,” explained Fallon. “But in situations where the government does have leverage, I don’t they’re going to back down from their general stance that if you want to contract with us it’s going to be in French. When you’re a procurement official the last thing you want in your life is the Commissaire de la langue française auditing your contracting practices, so I don’t think it will be used liberally.”

The exemptions are not nearly as generous as it may seem, concurred Catimel-Marchand. Some exemptions may be clear but are applicable in very limited situations while other exemptions may be broader but are discretionary and open to interpretation, added Catimel-Marchand.

A case in point is the exemption that allows for the use of a language other than French where the product or services may not be obtained in due time or for a reasonable cost, said Catimel-Marchand. “That is open to interpretation, and that will require the discretion and reasonability itself of the person who is making that determination,” said Catimel-Marchand. “You shouldn’t be planning to rely on this for something very important because you certainly might get two different answers depending on what public servant is tasked with making that determination. That’s not language that I would describe as having very definitive consequences.”

RESEARCH REGULATION

Another regulation, also in effect as of June 1, is aimed at the research sector. The regulation respecting the derogations to the duty of exemplarity of the civil administration and the documents drawn up or used in research also allows a whole range of documents associated with research — such as economic and financial documents, clinical trial documents, scientific studies and its assessment and financial assistance applications — to be written in a language other than French. But there is “ambiguity” whether it also applies to contracts, said Champagne.

“In terms of the regulation dealing with research documentation, there are not too many interpretative issues,” said Champagne. “On the other hand, with regard to the regulations on the language of administration, there is room for clarification. There is still some ambiguity about the contracts that can be signed in the Quebec research world.”

Guidance over adhesion contracts is also something that legal experts are eagerly waiting for. Thanks to new rules that came into force on June 1, businesses must have a French version of adhesion contracts and related documents to be used in Quebec. Under s. 55 of the Charter, parties to an adhesion contract may be bound by the English or non-French version of the agreement only if a French version was first provided or “remitted” to the adhering party. Failure to do so can put the enforceability of the contract at risk, noted Fallon. “That’s a very major change in the statute. The government has clearly signalled that they will be watering down that requirement in certain circumstances, but we don’t know when.”

While the regulations have come into effect on June 1, they have had little impact as it’s “early days,” said Catimel-Marchand.

“The regulation dealing with civil administration shows an openness to be reasonable in the application of the requirements, but we’re now also waiting for similar guidance in a more B2B context,” said Catimel-Marchand. “This current regulation certainly gives me hope or my clients hope that what might be coming for businesses and how more broadly the legislation will be applied down the road will perhaps show the same reasonability.”