On March 1, 2022, the Government of Canada introduced Bill C-131 to amend the Official Languages Act and certain related acts, and to create the Use of French in Federally Regulated Private Businesses Act. Following Quebec's bill to reform the Charter of the French Language,2 the federal government is seeking to modernize its statutory scheme to reflect the present-day language situation. The new Bill is intended to promote substantive equality between French and English, while contributing to the vitality of official language minority communities.
The passing of Bill C-13 will have a major impact on federally regulated private sector businesses.
What will change for the private sector?
Through the Use of French in Federally Regulated Private Businesses Act (the "Act"), Bill C-13 would grant new rights to employees and consumers in Quebec and in regions with a strong francophone presence. The Act would recognize the right to work in French and the right to receive communications and services from federally regulated businesses in that language.3 In their current form, the provisions relating to Quebec will come into force on a day to be fixed by order, and the provisions for regions with a strong francophone presence, two years after the date of the order.4
The new Act would apply to entities such as banks, interprovincial and international rail and road transportation companies, air and marine and telephone and cable companies. The Act does provide certain exemptions for businesses already subject to the Official Languages Act under another federal act, those with fewer employees than the number provided by regulation, and in respect of certain sectors.5 For example, the Act would not apply to broadcasting activities and workplaces.6
In defining a "region with a strong francophone presence," the government may consider factors such as the number and proportion of French speakers in a region or the vitality and specificity of its French linguistic minority communities.7
Language of work
Businesses with workplaces in Quebec or in a region with a strong francophone presence must foster the use of French, inform their employees of the application of the Act and of their rights and remedies, and set up a committee to support senior management in promoting French and its use.8
Employees of a federally regulated private business who work in Quebec or in a region with a strong francophone presence, or whose position is attached to such a workplace, may
- carry out their work and be supervised in French;
- receive all communications and documentation from their employer in French, including job offers, promotion notices, notices of termination, and collective agreements. In addition, if a document is written in French and English, the use of French must be equivalent to the use of English; and
- use regularly and widely used work instruments and computer systems in French.9
The Act prohibits the unfavourable treatment10 of an employee who holds a position in a Quebec workplace or in a place with a strong francophone presence on the ground that they do not have sufficient knowledge of a language other than French or have exercised a right under the Act or filed a complaint.11 However, thanks to an acquired right, under the Act, such an employee could not be treated unfavourably because they do not have sufficient knowledge of French.12 In addition, as in the Charter of the French Language, an employer could require an employee to know a language other than French if the employer can demonstrate that knowledge of that language is objectively required by the nature of the work to be performed.13
Consumer rights
In Quebec and regions with a strong francophone presence, the Act will allow consumers to communicate in French, both orally and in writing, with a subject company that does business there. In addition, those consumers will have the right to receive services and communications from that company, including all related documents, in that language.14 A company could provide services and documents in a language other than French at the consumer's request.15
How Bill C-13 relates to the Charter of the French Language
In a unanimous motion adopted by the National Assembly in November 2020,16 the Quebec government reaffirmed the need to apply the Charter of the French Language to federally regulated businesses doing business in Quebec. The detailed study of Bill 96 has led the government to adopt a provision to make businesses and employers operating in Quebec subject to the Charter of the French Language, regardless of whether they fall under federal jurisdiction.17 Minister Jolin-Barrette stated that the Quebec government intends to "exercise [its sovereignty] to the full extent."18 Bill C-13 proposes to exempt federal businesses operating in Quebec from the Charter of the French Language with respect to relations with consumers or employees in Quebec, unless a business makes a notification stating its intention to be subject to the Charter, in accordance with a mechanism prescribed by regulation.19 Conversely, a company could always decide to cease to be subject to the Charter, by giving notice to that effect.20 In their current draft, these provisions are likely to spark a constitutional debate. As most federally regulated businesses already comply with the Charter, the federal and provincial governments should agree on a mechanism for harmonious implementation to avoid creating an administrative maze.
Implementation mechanisms
The Office of the Commissioner of Official Languages will be granted new powers, including the ability to enter into compliance agreements and to order a company subject to the Act to take appropriate action to rectify certain violations.
Consumer recourse
The Act provides that an individual or group of individuals who believes that a federally regulated private business has contravened the Act may complain to the Commissioner.21 The Commissioner may also investigate on their own initiative. For the purposes of their investigation, the Commissioner will have the powers to make recommendations and orders provided in the Official Languages Act, but not the power to impose administrative monetary penalties, which will be reserved for Crown corporations.22 These powers would not necessarily take effect on the day the Act comes into force, as the Act provides for the possibility of specifying a different coming into force date for each of these enforcement methods.
Employee recourse
With respect to language of work, the Commissioner will not be able to investigate on their own initiative.23 An employee of a subject business may file a complaint with the Commissioner if they believe their employer has contravened the Act.24 In certain situations, for example, if the Commissioner believes they are unable to resolve the complaint within a reasonable time, the Commissioner may refer the complaint to the Canada Industrial Relations Board.25 The Board may direct a business to comply with the section at issue and, if applicable, to take any of the following actions:
- allow the complainant to return to work;
- reinstate the complainant in their job;
- pay to the complainant compensation not exceeding the sum that, in the Board's opinion, is equivalent to the remuneration that would, but for the failure to comply, have been paid to the complainant;
- pay to the complainant compensation not exceeding the sum that, in the Board's opinion, is equivalent to any financial or other penalty imposed on the complainant by the federally regulated private business; and
- take any other measure that the Board considers fair to impose on the federally regulated private business and likely to remedy or counteract the effects of the failure to comply.
Broad and liberal interpretation of language rights
It should be noted that the Act also provides that language rights are generally to be given a broad, liberal and purposive interpretation in light of their remedial nature. Accordingly, the application of the Act requires consideration of languages other than English or French. In this sense, the Act is not intended to affect rights under law or custom of languages other than English or French, or to interfere with the preservation and enhancement of languages other than English or French, or the reclaiming, revitalization and strengthening of Indigenous languages.26
Footnotes
1 Bill C-13, An Act to amend the Official Languages Act, to enact the Use of French in Federally Regulated Private Businesses Act and to make related amendments to other Acts , 44th Leg., 1st Sess., 70-71 Elizabeth II, 2021-2022 (First Reading) [C-13].
2 Bill 96, An Act respecting French, the official and common language of Québec , 42nd Leg., 2nd sess., 2021-2022 (Detailed Study).
3 Within the meaning of the Canada Labour Code, RSC 1985 C -2.
4 C-13, supra note 1 subss. 71(4) and (5).
5 Ibid., clause 54; subs. 2(1).
6 Ibid., clause 54; s. 5.
7 Ibid., clause 62(2); subs. 33(2.1).
8 Ibid., clause 54; ss. 10-11.
9 Ibid., clauses 54, 57; s. 9.
10 This term would be defined by regulation.
11 C-13, supra note 1 clauses 54, 59; subs. 11(1).
12 Ibid., clauses 54, 59; subs. 11(2) and (2.1).
13 Ibid., clause 54; subs. 11(3).
14 Ibid., clauses 54, 56; subs. 7-8.
15 Ibid., clause 54; subs. 7(3).
16 "Appui de six ex-premiers ministres à la motion unanime sur la loi 101", La Presse (9 December 2020), online: (https://www.lapresse.ca/debats/opinions/2020-12-09/appui-de-six-ex-premiers-ministres-a-la-motion-unanime-sur-la-loi-101.php).
17 Bill 96, supra note 2 clause 65; s. 89.1; Assemblée nationale du Québec, "Journal des débats de la Commission de la culture et de l'éducation - 42e lég., 2e sess., 2021", online: (http://www.assnat.qc.ca/fr/travaux-parlementaires/commissions/cce-42-2/journal-debats/CCE-220323.html).
18 Assemblée nationale du Québec, supra note 17.
19 C-13, supra, note 1, clause 54; subs. 6(1).
20 Ibid., clause 54; subs. 6(2).
21 Ibid., clause 54; s. 15.
22 Ibid., clause 69(4), which provides that 65.1 to 65.95 of the Official Languages Act do not apply to the Act.
23 Ibid., clause 54; subs. 19(2).
24 Ibid., clause 54; s. 15.
25 Ibid., clause 54; subs. 21(1).
26 Ibid., clause 54; s. 40.
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