Employees of Federally Regulated Employers in Québec Will Have the Right to Carry Out Their Work in French

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, was granted Royal Assent on June 20, 2023. The act will come into force on a date to be fixed by order of the Governor in Council. As of the date of this article, no such order has been issued.

Quick Hits

• Bill C-13 creates obligations for private enterprises under federal jurisdiction with respect to the use of French for businesses in Québec and in other regions with a strong francophone presence.
• Covered businesses include banks, airlines, and maritime companies, along with other federally regulated private businesses that are federal undertakings within the meaning of section 2 of the Canada Labour Code.

Purpose

Bill C-13 amends the Official Languages Act and ensures the use of French in federally regulated private businesses. The act creates obligations for private enterprises under federal jurisdiction with respect to the use of French for businesses in Québec and in other regions with a strong francophone presence (think New Brunswick).

Initially, the act will apply exclusively to Québec; designated regions “with a strong francophone presence” will be defined by regulations that will come into force on the second anniversary of the coming into force of the act.

Scope

The act’s scope includes banks, airlines, and maritime companies, along with other federally regulated private businesses that are federal undertakings within the meaning of section 2 of the Canada Labour Code. Some businesses that are exempt from the application of the act include

• employers with fewer employees than determined by regulation;
• employers that are subject to the Official Languages Act under another federal law;
• corporations that carry out tasks for the federal government; and
• workplaces and activities in the broadcasting sector.

Where Does That Leave Québec’s Charter of the French Language?

One amendment brought by Bill 96 was article 89.1, which purports to apply the Charter of the French Language (the “Charter”) to any enterprise or employer carrying on its activities in Québec.

During debates at the National Assembly, Québec’s justice minister clearly stated that article 89.1 was to apply regardless of whether the enterprises and employers were provincially or federally regulated.

In fact, after coming into force of Bill 96, the Office québécois de la langue française, the regulatory body responsible for enforcing the Charter, started sending letters to federally regulated employers, enjoining them to comply with the Charter. Its website further urges federally regulated employers to comply with the Charter.

This position had many federally regulated private employers wondering where they stood, and if they now had to comply with a law they were not previously subject to. To say the least, the Charter’s application to federally regulated enterprises has been the subject of much debate and opposition, so that the passage of Bill C-13 may be Parliament’s response.

Indeed, as a result, employers covered by the proposed legislation would have corresponding obligations to promote and respect the right to work in French.

Note that a federally regulated private business can, however, opt out of the act by voluntarily subjecting itself to the Charter by giving notice of its intent, as per the regulations to be prescribed.

Employee Rights Regarding Language of Work

The following rights apply to employees of a federally regulated private business to which the act applies:

• The right to perform work and be supervised in French
• The right to receive all communications and documents from the employer in French, such as offer letters, application forms, transfers or promotions, training documents, and collective agreements
• The right to “use regularly and widely used work instruments and computer systems in French”

Employment Agreements and Work-Related Documents

The act states that private enterprises under federal jurisdiction operating in Québec or in a region with a significant francophone presence may continue to speak to and produce paperwork for employees in English, provided there is an equivalent usage of the French language to that of English.

Similar to the Charter, the act provides that with regard to employment contract of adhesion (i.e., a contract whose essential terms are set by the employer), the parties may only be bound by one version in a language other than French, provided that the parties decide this to be the case after reading the initial French contract. There is an exception for other types of contracts (such as those that are freely negotiated between the employer and employee). In those instances, the employment contract may be written exclusively in a language other than French, as requested by the parties.

The Requirement of a Language Other Than French

The act includes exceptions regarding the use of French in a workplace. An employer can require the knowledge of a language other than French from an employee who is in Québec or assigned to a position in Québec. The employer must show that this requirement is essential to perform the job. To fulfill this requirement, the employer must:

• limit the number of positions that require employees to speak a language other than French;
• ensure that the language skills already required of other employees in the workplace are insufficient for the performance of the work; and
• identify and assess the true linguistic needs for the work to be performed.

The above requirements have limits: a private enterprise under federal jurisdiction should not be forced to radically restructure its operations.

An employee who is already in a position in Québec, before the act comes into effect, can benefit from acquired rights, such that, it is prohibited for an employer to treat employees unjustly because of their insufficient knowledge of French (examples include dismissals, layoffs, demotions, and suspensions).

Remedies for Workers

Employees have the right to file complaints with the Office of the Commissioner of Official Languages and assert their language rights. Current, former, and potential employees of organizations under federal regulation may avail themselves of this recourse.

Ogletree Deakins’ Montréal office will continue to monitor developments and will publish updates on the Cross-Border blog as additional information becomes available.

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