BILL 96 AND THE LANGUAGE OF CONTRACTS

Caroline Jonnaert [1] and Andrée-Anne Perras-Fortin [2]
ROBIC, LLP
Lawyers, Patent and Trademark Agents

On May 13, 2021, the Government of Quebec introduced Bill 96[3] (the “Bill”) proposing a major reform of the Charter of the French Language[4] (the “Charter”) and amendments to other acts, including the Consumer Protection Act[5] (the “CPA”).

Since the Bill was introduced, it has met with strong reactions. In addition, the provisions proposing amendments to the Constitution Act, 1867[6] to declare French the only official language of Quebec have revived some constitutional issues. However, for the purposes of this article, we will focus on the provisions concerning the language of business, and more specifically on those that affect the language of certain contracts.

Choice of language provisions would officially become insufficient

One of the major changes proposed by the Bill concerns the language of particular contracts, including contracts of adhesion and standard form contracts. The Charter already requires that such contracts and the related documents be drawn up in French. However, the parties may derogate from that rule by stating their express wish to do so.[7] It is therefore common to see contracts drafted solely in a language other than French that include a clause reflecting the “express wish of the parties” in that regard. However, the Office québécois de la langue française (the “Office”) does not support that practice.

In the Office’s view, the French version of a contract of adhesion must be available [TRANSLATION] “in a timely manner, at the time of the other party’s choice, so that such party is able to freely state its wish regarding the language in which the contract is drawn up.”[8] Contrary to current practice, “it is therefore not sufficient to provide customers with a contract already drawn up in another language, containing a clause stipulating that the contract is not in French.”[9] The current version of the Bill would bolster the Office’s position.

The Bill provides that contracts of adhesion or standard form contracts drafted in a language other than French will only be valid if a French version of such contracts has been drawn up (free of charge[10] and understandably[11]) and brought to the attention of the adhering party or the party that did not draft the standard form contract.[12] Only after that first step could the contract be entered into in a language other than French and the related documents be sent to the other party.[13] Similar requirements would apply to certain real estate contracts and consumer contracts.

At present, the Consumer Protection Act[14] gives consumers the right to conclude agreements in French. Moreover, where multiple versions of the same contract in different languages are available, consumers may use the version that is more favourable to them.[15] These rights would be strengthened by the provisions of the Bill, which, like the additions concerning contracts of adhesion and standard form contracts, require that the merchant first provides consumers with a contract in French.[16] Consequently, a merchant that sells goods or services to consumers in Quebec might have to provide them with a French version of their contract.

Major consequences for businesses

If the Bill is passed, it could have major consequences for corporations doing business in Quebec. The amendments would force many of them to review their contracts of adhesion, consumer contracts or standard form, as the case may be (collectively, the “covered contracts”). In the case of consumer contracts, those changes could extend to Terms of Use agreements governing online free services.

A few years ago, the Superior Court of Quebec concluded that Yahoo!’s Terms of Use constituted a “consumer contract,” even though the internet-based service was free.[17] While that decision did not generate much commentary, it has nonetheless had major impacts on corporations that do online business in Quebec. In particular, the decision made the CPA applicable to  businesses offering free services like those provided by Yahoo!, despite the inclusion of clauses stating that their Terms of Use are subject to the laws of a different jurisdiction.[18] The changes proposed by the Bill could therefore apply to those agreements which are often overlooked. Yet, the Bill provides for severe penalties in case of violations.

Harsher penalties

At present, it is generally recognized that the failure to comply with the Charter requirements regarding the language of contracts does not void them  [19] but results in monetary sanctions. The Bill goes further, however, and provides that the provisions of a contract that infringe the Charter may be invalidated[20] or their obligations reduced at the request of the person who suffered the injury.[21]

Next steps

Given the legislative process, the Bill will probably be passed by the end of the year. Yet, the Bill provides that it will come into force gradually over a period of up to three years from the date on which it receives assent. Nonetheless, corporations that do business in Quebec should start preparing now as the proposed amendments could make the Office’s position regarding contracts official.