French language still needs protection rules Quebec appeal court

A bid to overturn Quebec’s sign law by a group of anglophone merchants suffered yet another setback after the Quebec Court of Appeal upheld two lower court rulings that held that the French language is still vulnerable in Quebec and continues to need protection even though it has made “modest progress” in recent decades.

In a ruling hailed as significant by constitutional law experts, the appeal court underlined that jurisprudence held that the alleged violations of freedom of expression and the right to equality were justified under the Canadian Charter of Rights and Freedoms and the Quebec Charter of human rights and freedoms.

“The ruling is important because if the evidence demonstrated that the French language situation had fundamentally changed in Quebec, then the courts would have been justified to shelve the conclusions reached by the Supreme Court of Canada in its two landmark rulings in Ford and Devine,” said David Robitaille, a law professor who teaches constitutional law and human rights at the University of Ottawa. “But the burden of proof is very high.”

French is the official language of commerce and business in Quebec, and companies must have a French language name and French language signage. However, merchants may advertise in several languages including English but as long as the French language information is “markedly predominant.”

Eleven Anglophone businesses operating in the Montreal area, all of whom were charged under the Charter of the French language (C.F.L.), argued that the French language in Quebec is no longer in jeopardy, and therefore certain sections of the language charter infringed upon their fundamental rights and freedoms as guaranteed by both the Canadian Charter and the Quebec Charter. More specifically, they alleged violation of their freedom of expression and their right to equality and liberty. In other words, the merchants essentially sought to depart from the precedents established by the SCC in Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712 and its companion ruling in Devine v. Quebec (Attorney General) [1988] 2 S.C.R. 790. In these two decisions, the nation’s highest court struck down the sign law, which at the time required that all public signs be in French only, as a violation of freedom of expression. But the SCC declared in obiter dictum that “requiring the predominant display of the French language” would be justified under s.1 of the Canadian Charter and s. 10 of the Quebec Charter. The Court then proposed two constitutionally valid alternatives — one in which French could be required in addition to any other language, and the other in which French could be required to have greater visibility than accorded to other languages.

The trial judge, Court of Quebec Judge Salvatore Mascia, held that while the “visual landscape” in Quebec since the SCC’s decision in Ford and Devine was now predominantly French, that is because of the language charter. Judge Mascia noted that there would be an “obvious incongruity in using the success of the sign provisions in the C.F.L. as fodder for its dismantling. The C.F.L. cannot become a victim of its own success.” He concluded that the language situation had not changed much since the 1988 SCC rulings, and therefore he could not review the conclusions of the SCC in Ford and Devine. All but one of the 23 businesses were found guilty of violating the language charter. Quebec Superior Court Justice Claudine Roy, now a Quebec appeal court justice, upheld the decision as did the Quebec appeal court.

“The limitations on the language of commerce and business contained in the C.F.L. consist in prohibitions of a public nature which in the opinion of the legislature better the common good,” concluded appeal court justice Mark Schrager in 156158 Canada inc. c. Attorney General of Québec 2017 QCCA 2055. Chief Justice Nicole Duval Hesler and Justice Geneviève Marcotte concurred.

The appeal court also found that unilingual English websites are too subject to the French language charter. Justice Schrager found there were no differences between a commercial brochure printed on paper and one in electronic form. “If the publications on a website aim to conduct or promote business in the territory of Quebec, then they are part of the ‘visage linguistique’ of Quebec” and thus subject to the French language charter.

“In my view that’s a precedent,” said Robitaille. “In the end, the technological revolution does not change the legal debate. In other words, the new means of communication does not fundamentally change the legal analysis the courts must conduct.”

But the appeal court also appears to have “opened a door” to new legal challenges to the signage law under s. 15 of the Canadian Charter and s. 10 of the Quebec Charter, added Robitaille. The merchants argued that the joint use of French restricts Anglophones’ right to express themselves on the same basis as Francophones. This requirement in turn imposes economic and psychological burdens, they added. But Justice Schrager found that the legislation does not prevent the merchants from advertising “with their desired form and content.” It merely requires them to add a concurrent or “markedly predominant” French version if they want to advertise in English. Moreover the merchants did not provide any evidence of an additional economic burden stemming from this requirement. However, Justice Schrager noted that a “disadvantage” could “potentially arise” in the form of an additional economic burden placed on an Anglophone business required to advertise in two languages rather than one.

“If the business is thus obliged to incur additional expense for translation, website construction or printing, there might be in some cases, additional burden created,” said Justice Schrager. “Such burden might constitute discrimination for a small enterprise where the total revenue is such as to make the additional costs disproportionate and overly burdensome.”

While the appeal court seems to recognize that the French language charter potentially creates an additional economic burden for small business, Robitaille believes that the appeal court would quickly shut down that fissure in the French language charter. “In my opinion the court would come to the conclusion that the violations of freedom of expression and the right to equality would be justified,” said Robitaille.

According to constitutional law professor Patrick Taillon of the Université Laval, the ruling reveals the fragility behind the SCC’s landmark rulings in Ford and Devine. “I am pleased that the Quebec appeal court did not review the criteria established by the SCC in Ford and Devine,” said Taillon. “But one of the worries I have is that measures that are considered to be reasonable today will no longer necessarily be the case in the future, and that it will no longer be considered to be justified because of a change in context, an evolution in society, or because of technological changes.”

Quebec intends to introduce new sign regulations following appeal court decision

In a major victory for international retailers such as Best Buy, Costco, Gap, and Wal-Mart, the Quebec Court of Appeal confirmed that the Charter of the French Language allows for the use of non-French trademarks on storefront or public signs and advertising in the province, so long as no equivalent French trademark has been registered.

A five-judge Court of Appeal panel held, without even hearing arguments from retailers or interveners, that the Charter and its regulations clearly allow the use of a trademark in a language other than French, even if the trademark name is being used as a business name.

Shortly after the politically sensitive ruling, the Quebec government announced that it intends to introduce this fall regulations that will force retailers to add a French slogan, generic word or description of the product or service they are marketing.

“Our government wants to act so the outdoor signage of companies reflects the French face of Quebec,” said Hélène David, the minister responsible for the Charter. “In fact, it is possible to assure the visibility of French without altering the original trademark. It is about common courtesy, of politeness and especially the collective assurance that the francophone face (of Quebec) be preserved.”

But skeptics doubt that the Quebec government will launch a politically charged debate to amend the Charter. “I don’t think the current government wants to open this Pandora’s box,” remarked François Guay, a partner with Smart & Biggar | Fetherstonhaugh, who represented the International Trademark Association who were interveners in the case. “What the Office québécois de la langue française (OQLF) wants to do is create a unique situation in the world. But their position is legally untenable in all regards.”

The knotty issue came to the fore after the OQFL, the province’s language agency, adopted about five years ago a different interpretation of the Charter and launched a campaign known as “A Trade-mark to Respect the Law.” In Quebec, the general rule under the Charter is that public signs, posters, and commercial advertising must be displayed in French. However, the Charter does provide with some exceptions. Under the Regulation Respecting the Language of Commerce and Business, a recognized trademark within the meaning of Canada’s Trade-marks Act may appear exclusively on public signage in a language other than French. But in 2010, the OQFL took the position that any business that used a non-French trademark on commercial advertising and public signs, including storefront signs, needed to comply with the rules applicable to business names, which requires the use addition of a general French descriptive word. The OQFL’s campaign suggested that failure to comply with its new interpretation constituted a violation of the Charter, and businesses exposed themselves to monetary and penal sanctions. Businesses who failed to comply also faced the potential suspension of the so-called francization certificates, which are granted by OQLF to demonstrate that a business has met the Charter’s linguistic requirements.

“The OQLF’s new position worried the business community because it would have led to a lot of changes in their practices,” noted Caroline Jonnaert, a Montreal intellectual property lawyer with Legault Joly Thiffault Avocats. “If the OQLF’s position had been maintained, it would have led to changes in logos, publicity, signages – all of which would engendered a lot of costs.”

Trademark exceptionsA number of major retailers, supported by the Retail Council of Canada and the International Trademark Association, contested before Quebec Superior Court the OQFL’s interpretation. The Quebec Superior Court ruled in favour of the retailers by declaring that that the trademark exception applies to the use of trademarks on public signs, and that the public display of non-French trademark does not violate the Charter.

In a brief 11-page “rather technical” unanimous ruling, the appeal court held that the Charter does not require a trademark used on a storefront sign to be accompanied by a generic French term because of the exception under subsection 58(3) of the Charter, which empowers the government to grant exceptions from the principle of posting French (or predominantly French) signs in public. The government enacted such an exception in section 25 of the Regulation. Under subsection 25(4) of the Regulation, trademarks “exclusively” in a language other than French are permitted to be posted in public when there is no French equivalent, noted the appeal court in Magasins Best Buy ltée c. Québec (Procureur général), 2014 QCCS 1427.

“The Court of Appeal did a really good straightforward analysis and ruled that no matter how you look at the Charter and how you try to interpret it, it remains that you can use English trademarks on your storefront signage,” noted Brigitte Chan, a trademark expert with Bereskin & Parr LLP in Montreal. “This is important because for decades business owners were being told that they were compliant with the Charter, and it was a little bit unfair for the OQFL to change its interpretation of the Charter.”

But while the appeal court also noted that its finding is in line with the interpretation that the OQLF had given to the Charter before 2010, it made a point of stating that that the promotion and protection of the French language in Quebec constitutes a “recognized imperative” responding to a “real need.” The appeal court added that many might wish for the retailers to “alter their practice and post differently” but that does not mean the actual text of the Charter and Regulations compels them to, “and in fact does not oblige them to.”

“It’s a tacit way of saying that it is possible that politically speaking it is desirable that the trademarks be translated into French,” said Benoît Pelletier, a law professor at the University of Ottawa and former Quebec minister. “But whatever the mandate of the Charter, there is a unescapable section of the law. Regardless of the judge’s opinions over the mandate of the Charter, of its vocation, and even if it was socially desirable, it remains that section 25 of the Regulation imposes on them a way of looking at things that is unavoidable.”

Much was at stake, argues Guay. While major retailers have the financial means to adapt their trademarks if need be, small and medium enterprises would struggle. Many, if not most, big enterprises have voluntarily adjusted their trademark signs, he points out. Starbucks is known as or Café Starbucks in Quebec while Staples goes by the name of Bureau en Gros in the province. “Trademarks are rather expensive,” said Guay. “It’s not a simple formality to get one. It is a rather complex matter. It can take up anywhere between 18-24 months. So it’s not insignificant as an investment.”

Chan concurs. Thanks to globalization, businesses want to be recognized under a particular trademark. “That’s the whole point of trademarks so from a marketing perspective companies want that global recognition.”

Quebec Court of Appeal nixes children’s access to English schools

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In a ruling that deftly circumvented the politically sensitive issue surrounding Quebec’s controversial language law while underlining the need to respect the “boundaries” established by the nation’s highest court, the Quebec Court of Appeal overturned a lower court judgment that would have temporarily allowed ten private-school students from pursuing their studies at English-language schools.

In an 11-page ruling rendered just two days after Quebec Superior Court granted a safeguard order that allowed the children of nine families to attend government-subsidized English schools until an administrative tribunal ruled on whether they have the right to do so, Appeal Court Justice Pierre Dalphond held that granting the students an exemption would not be in the public interest because it could lead to “serious problems” on the eve of the new school year. Continue reading “Quebec Court of Appeal nixes children’s access to English schools”