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hello everyone uh just waiting for everyone to uh jump on before we we do some in the introductions by saying a quick hello to our first sign-ons all right i will start with some quick uh hellos and uh and sort of welcome everyone for for attending this so to to our audience as we're having people uh join us and i will repeat a bit of this as we continue this is our second webinar around bill 96 as many of you know in the audience the important topic it's something that became more and more relevant by the day and the legislation now have having come into effect it really makes compliance something very important we prioritized employment hr matters being that from the serious continuation being that this is some of the topics that most of you are dealing with every day and then there's some pressing questions a lot of you had and we thought what a better way to start with this and despite it being middle of august and despite it being a peak vacation time we thought it's important to get started because many of you are planning for september and forward so i wanted to welcome our two panelists today tanya dasilva and stephanie blakely they're both very knowledgeable around this item and believe me we've actually chatted a fair bit with one another on a variety of questions that some of you have had in advance just to sort of give them an idea of the type of questions and and content to discuss here today but just for a bit of background around tanya and stephanie they're both based out of montreal the dla dla piper office in montreal tania is a partner and she practices in the employment and commercial litigation and class section area but she's also done a lot of work in compliance with the french language stephanie is an associate out of the same office in montreal with dla piper also has done a lot of work in commercial litigation insurance but also with the french language compliance they've both been drivers of the bill 96 content preparation and discussions and leading them internally and as a result being true leaders to help us explain some of the items that are pressing with a lot of you so considering that uh the being last time we did the the first when we first started with this webinars our first one went over time because there were so many questions i thought let's make the most of it jump into it right away for housekeeping items feel free to put in questions even as we continue throughout the presentation i asked tanya and stephanie to sort of take us through some substantive content first and then we could actually address some of the questions afterwards and i will try not to interrupt them throughout the presentation unless something was really needed to provide clarity or or it was critical to that particular point but otherwise we'll as we go to the q a at the end we can really address a lot of the questions i even have something that clients sent in advance but definitely happy to take any of the any ones that you have here and tanya and stephanie were also happy to address anything offline that we don't get to here today so without further ado tanya and stephanie thank you for joining us here and i'll give you and pass along your the virtual mic so to speak thank you very much gary and hi everyone as gary mentioned my name is tanya dasilva and i'm an employment partner at dla piper's montreal office and it's my pleasure to be here today to tell you about bill 96 and how it has modified employers french language obligations and employee rights under the charter of the french language so if we could go to the first slide please um we're gonna just start with a quick overview of the background of this legislation so first uh to begin bill 96 amends a bunch of legislation but mostly it amends the chart of the french language uh and it lists its four main objectives um in the following slide we have that for you as being the following to establish french is the only official common language in quebec to strengthen strengthen the status of french and quebec in all spheres of society which obviously includes the workplace to ensure the state so the province of quebec sets an example in the use of french which means that a lot more of your services from the government will be provided exclusively in french going forward and to establish a language governance system that is both neutral and strong can we go to the next slide please so here you see the legislative history of the bill so very briefly it was introduced in quebec's national assembly on may 13 2021 and just over a year later on may 24 2022 it was officially passed with the majority of the national assembly voting in favor uh of the bill and it came into force this year on june 1st most of its provisions are already in effect but some will continue to come in effect over the next three years next slide please so what does bill 96 do really in summary it makes as i said significant changes to the charter of the french language it aims to further promote the french language and reiterate the formal recognition of french as the only official language in quebec it strengthens the role of the ephis quebecois francaise and my colleague stephanie will talk to you a little bit more about that it clarifies and reinforces measures currently in force as well as introduces new requirements and restrictions for employers and businesses in quebec not just in the employment sphere but in in various aspects of operations in quebec and it includes over 200 amendments to the charter and to other legislation with respect to french language requirements so in light of this i'm sure you'll understand why we've chosen to focus the presentation today on only the hr related modifications brought on by bill 96 there's a lot of content there uh and we'll have uh enough to fill our places today with the employment piece next slide please so most of the new employer obligations and employee rights under bill 96 are already in effect since june 1st 2022 as i mentioned and let's begin with the general right surrounding employment which is the right to work in french so previously the charter already set out that employees had a right to carry on their work in french bill 96 has expanded that right to now include an employer obligation to ensure that employees rights to carry on work in french is respected so it's it goes a notch further there are also new requirements around employment agreements uh and this is arguably the most interesting change in in my personal view previously the charter set out that employment agreements had to be in french unless the parties expressly agreed to contract in another language if the parties wanted to contract in english we would simply include a clause in the employment agreement that set out that that was the case they the the employee they had specifically agreed to contract in english and that would be sufficient to meet the requirements of the charter of course if the employee wanted to have the agreement in french we would provide the agreement in french in ance with the requirements of the charter bill 96 has modified the requirements so that in every instance where the employment agreement is a contract of adhesion or contains standard clauses which is the case for most employment agreements you don't see very many instances of employment agreements being negotiated unless you're talking about executive level often so in those cases where it is a standard it has standard clauses and is a contract of adhesion the employment agreement has to be provided to the employee or candidate in french first it doesn't matter if the company company knows that the employee is anglophone and would rather have an english version there's no exception set out to this requirement uh the accre the agreement has to be provided in french first and then once the employees had a chance to review the french version and has requested that it be provided in another language then the employer can provide the agreement in the other language in our view this is not specifically necessarily set up but in our view this obligation also attaches to any other documents that you're incorporating into the employment agreement by reference so that would include for example your confidentiality agreements your restrictive covenant agreements your ip assignment agreements that are you know included as an appendix a usually to the employment agreement those are uh part of the agreement and therefore are incorporated into that obligation to be provided in french first be careful of how your employment agreements are drafted now going forward because this may even capture your employee handbooks having to be provided in french first if your employment agreement specifically says that your employment employee handbook is part of the agreement the only instance as i mentioned in which this requirement doesn't apply is where the contract is negotiated between the parties and as i said this usually is only reserved for executive executive level employment agreements where you'll see those being more heavily negotiated between the executive and the company before the agreement is signed but in most cases employees are asked to sign a standard form agreement and and there's no negotiation taking place next slide please now written communications um the charter now requires that employers send all written communications to employees in french unless the employee has specifically requested to receive them in another language previously the requirement was that communications to employees at large meaning to the general employee population from the company had to be in french or in french in another language now bill 96 has extended this requirement to even communicate communication sent to a worker in particular and i'm quoting for the legislation so we're not certain exactly what that means yet it hasn't been interpreted or hasn't we have no guidance from the oqlf about what it means but on its face it appears that even one-on-one communications with an employee will have to be in french unless that employee has requested to have them in english so to that end we have been recommending to our clients that they obtain a written opt-out from their employees who would prefer to receive communications uh in a language other than french that indicates that they have specifically requested to receive communications from their employer in english of course only employees who really do want to receive communications in english should sign this opt-out and it should be emphasized to the employees that signing the opt-out is optional you don't want them to feel like they have an obligation to sign something that says that they want communications in english only um one thing of note under the legislation is even if all of the companies employees sign an opt-out to receiving communications in french there's these three categories documents that still need to be made available in french in at least as favorable terms as those provided in another language so if you're providing for example a handbook in english you have to provide in at least as favorable terms your handbook in french and those categories of documents or communications are listed on the slide here namely employment applications documents related to conditions of employment so here we're talking about your incentive plans uh your benefits information policies equity plans things that that are conditions of employment of the employees have to be made available in french if an english version is also provided or a version in another language and training documents produced for staff also have to be made available in french now i want to clarify that there are two separate requirements here one says that all written communications with the employee must be in french this came into force on june 1st of this year it's already a requirement employment application forms documents relating to conditions of employment and training documents arguably are communications to employees and have to be provided in french now however there's a second requirement that indicates that the employer has to see to it that those documents are always available in french if the english version is provided or a link version in another language is provided that requirement came into for or comes into force in june on june 1st of next year 2023. so to us it appears that the legislator's intention here is that all communications have to be provided to employees in french unless the employee expressly indicated otherwise even if employees have indicated otherwise those three categories of documents always have to be available to employees in french on no less favorable terms than the english or other language version to the extent that these categories of documents are not yet available in french employers have one year to translate them the deadline ends on june 1st of 2023 next slide please so now um and i think am i on the right slide here uh can you go to the previous slide please okay so now um just wanted to point out to you some other deadlines an employee who has provided um sorry an employee who has been provided with an employment agreement in a language other than french before bill 96 came into force has a right to request that it be translated so if on let's say april 30th of this year they received an english version of an employment agreement they can ask for a french version now that bill 96 has come into force and they have until june 1st of 2023 to make that request and then it has to be translated by the employer as soon as possible there is an exception for fixed term agreements that end by june 1st of 2024 if an employee asks for a translation of one of those agreements the employer can refuse to provide the translation because it's it's not required um and if the translation is requested within the deadline and there's a and there is a translation that occurs and there's a discrepancy between the french and the english text for example then the employee can invoke either text in the event that there's a dispute between the employer and the employee and rely on the most favorable version to them the employer cannot ask the employee to pay anything for the translation um and i have previously addressed the last point on this slide with respect to translating the three categories of documents we already mentioned so now yes yes i would just jump in quickly only because i think it may flow nicely here one of the questions from the audience was that would the contract requirements apply to federally regulated employees in quebec so like doing it in french is there a difference there uh they federally regulated employers who are working or who are present in quebec and have employees in quebec still fall within the the purview of the charter and there is bill c-13 which which is federal legislation which is coming and which will be sort of mirroring some of the requirements of of bill 96 and applying to federally regulated entities so uh that is going to be captured by these requirements thank you you're welcome uh and now the next slide please so now the hiring process uh previously under the charter employers were already prohibited from requiring a person to have knowledge or a specific level of knowledge of a language other than french in order for that person to be able to obtain a position unless the nature of the duties of that position required them to have knowledge of that other language now bill 96 strictly regulates the requirement of knowledge of a language other than french and the recruitment process and that's whether through recruitment you know new recruitment transfer or promotion so now for an employer to be able to require the knowledge of a language other than french they need to demonstrate a three-pronged test um that they've assessed the actual language needs associated with the job duties for which they're going to be hiring that they ensured that the language skills required of other staff members are not sufficient for the job duties that are being hired for to be met so essentially you have to evaluate whether other people around the job that's being hired for are already doing some of the tasks that would be required of the job in english for example and if those people can fulfill the those duties then you will have to limit the requirement of of english for the for the job or of another language for the job and that they have restricted as much as possible the number of positions within their organization in quebec involving tasks that require the knowledge or a specific level of knowledge of a language other than french and as i said this assessment also has to be done for internal transfers or promotions and not just for extra external recruitment um so i've had a lot of clients ask me what does this mean exactly what how do we determine if if english is really needed we have all employees communicating with people in the u.s to do their jobs so i've sort of been using this this example let's say you have a manager who is in quebec who's bilingual and that person reports into somebody in the u.s they have to have knowledge of english because their manager in the u.s only speaks english but then everyone who works underneath that manager only reports into the bilingual manager and doesn't have any communication really with people in the u.s and can speak with their manager in french so arguably those people who are working under that bilingual manager don't need to know a language other than french to be able to do their job unless for example they're communicating with clients who are anglophone so you have to do this assessment internally to determine who will this person be communicating with will they need to communicate with someone in a language other than french does it justify hiring uh the person and requiring that they have this level of knowledge of a language other than french again this hasn't been applied yet we haven't really seen any guidance from the courts about what that means um or any guidance from the oqlf yet about this assessment and so it still remains to be seen how how it's applied in practice but that is what the the bill 96 requires next slide please now job postings uh employers have to publish job postings for new hires transfers and promotion in french or in french in another language um when they are advertising a job offer in a language that is other than french the equivalent job offer in french has to be advertising using means of transmission of the same nature as the offer in the other language and reaching a target public of proportionally comparable size so you have to do your research when you're doing a job posting to make sure that the means that you're using are going to be meeting a comparable target audience for your english and french versions of your job posting and if knowledge of a language other than french is required for the job after you've done this hiring process assessment the posting has to indicate why so you have to in all of your job postings if you're requiring knowledge of a language other than french indicate in that job posting why that knowledge is required on the next slide please [Music] okay so finally what are the new employee recourses that are available so bill 96 sets out that every employee has a right to a work environment free of discrimination or harassment because the employee has no or little command of a language other than french because the employee claims the possibility to express him or herself in french or because the employee has demanded a right that arises from the charter the employer has to take reasonable means to prevent any such discrimination or harassment if it's brought to the employer's attention and to make it stop so this is very similar to the obligations with respect to psychological harassment in the workplace that already exists employers who find out about psychological harassment in their workplace have an obligation to investigate and make it stop so the complaint that's available to employees now with the cnesst is essentially the same one an employee will have two years from the date of the last occurrence of discrimination or harassment to file essentially a harassment complaint with the cness team also if an employee believes that they've been the victim of reprisals or unlawfully required to have specific knowledge of a language other than french they can now file what's called a prohibited practices complaint with the cnesst and that's has to be done within the same deadline as other prohibited practices um complaints which is 45 dates days sorry from the occurrence of an incident um so this is completely new uh before if an employee had a complaint they would complain to the oqlf often on a anonymous basis it was often disgruntled employees who would go to the oqlf and file a complaint and say that the employer wasn't meeting their french language obligations the oqlf would investigate send a letter asking the employer to comply and usually if the employer complied the file was closed and that was it but now the employee actually can file an individual claim with the sst if they feel that their rights to work in french have been reached on an individual basis stephanie is going to talk to you about some other new recourses that are available with respect to contracts generally at the end of the presentation that would apply to employment agreements but just essentially employees can now claim that their employment agreement is not under that they don't understand it or that it was not understandable to them if uh it's not provided to them in french first as the law requires uh but as i said stephanie is going to talk to you a little bit more about that um and on that note i i will um leave it to to stephanie to take it from here tanya as you can appreciate that that last bit did have a generate a few questions the uh i will leave them for the end unless you do you think that if there may be a couple that uh that i could sprinkle in now depending on your preference sure we can go ahead i think i still had a little bit of time of my time left so i'll use a couple general ones now and then leave some more sort of company specific type situations and when i say company specifically still they reply broadly but the the the uh for the end so one question was in your view what reasons would be acceptable to our courts in order for an employer to safely insist for a candidate to be bilingual so that's i as i said we have no guidance yet on what that means but i think that if if justifiably an employee does have to communicate with clients in english if you're operating a call center and calls are coming in from all over canada that to me seems completely justifiable if you have employees who on a day-to-day basis are for example designing a video game and they're working with a team who is in california and they're working very collaboratively and everybody works with the studio and without doing so they can't do their job um then that to me appears justifiable but as i said if if you're really operating uh a company in quebec that's working more in a silo that's a lot more quebec based that's dealing only with quebec clients and that they can report to their managers in french only then there may be an issue there with requiring that the employees have a knowledge of a language other than french if i could just jump in here as well this ties in a little bit to the part that we're going to get into about franchisation as well when a company is asked to go through the franchisation process they're asked to analyze the business situation and to assess the percentage of their clients their suppliers and the internal business processes and documentation and the level of of french basically that is used in communications with all of these people so i think that is something that would be taken into consideration by the oqlf so if you mainly communicate with your clients and suppliers in another language than french not necessarily even english just internationally if you're a company that's uh from europe and you mainly communicate in another language um that that would be taken into consideration thank you both only one more question at this stage and i'll leave the others for afterwards just because it tied to the cne sst and the question is do you think the recourse to the cne sst would also apply to employees of federally regulated private businesses no i don't think so the cne sst is a is the quebec labor tribunal and is specific to provincially legislated or provincially regulated um employers and so because that recourse is being con created under the the quebec labor tribunal it would in my view not be available um remains to be seen if c13 is going to create a similar recourse under the to to the the federal labor board i don't know i have not looked into that so i can't say for sure thank you both uh we will continue with stephanie's part and uh we'll leave the other questions for later on and we'll have lots of fun at the end with our q a period thank you tanya thank you gary um so let's get right into the franchisation process which i just briefly started uh speaking about so for those that maybe are not familiar with the franchisation process basically the franchisation of a company is a set of rules that are aimed at ensuring that the use of french is generalized throughout a company and prior to bill uh 96 franchisation rules were aimed at any companies that employed 50 employees or more for a period of at least six months and basically these companies were required to register with the oqlf and obtain a franchisation certificate as a testing basically that french is the language that's used um within the company and it's generalized at all levels uh since bill 96 this threshold has basically been lowered to 25 employees uh within the province of quebec so um now companies uh with 25 employees or more will be subject to franchisation requirements and will be required to complete a linguistic analysis of their business in quebec and if required um thereafter if they're not deemed to be if french is not deemed to be generalized at all levels they have to undergo what is called a franchisation program um and essentially to bring french up to the level of being generalized throughout the company um as is currently the case under the or as was currently um the case under the charter companies that employ a hundred uh or more employees are obliged to have a franchisation committee um but now after bill 96 the oqlf also has the ability to order the creation of a franchisation committee for companies between 25 and 49 employees as well and essentially the role of the franchisation committee is to is to help companies uh generalize the use of french throughout the company and this can be achieved in a variety of ways it not only is through um ensuring that documentation is available in french as required under the charter employment agreements signs and any type of commercial advertising and things of that nature but also through software and internal i.t being available to uh employees within the company um so basically the franchisation committee would also be responsible for um drafting reports to the oqlf and submitting these reports every three years we're just giving an update basically on the use of french throughout the company and this is also required for any um any company that would be registered with the uh with the oqlf um so now that the threshold basically has been lowered to 25 employees or more the oqlf is giving companies a little bit of leeway in order to register um with uh the oqlf so the deadline in order for companies uh with 25 employees or more to register is actually going to be in three years from now so by june 1st 2025 all companies um with 25 employees or more should register with the oqlf undergo undergo what we have been talking about being the linguistic analysis of the company uh in order to obtain uh the franchisation certificate next slide please and so as i was mentioning before the franchisation committee is typically uh the group of employees that would be charged with ensuring that uh a company is um is generalizing the use of french throughout the the enterprise um and the franchisation committee is actually usually made up of six employees or six uh workers essentially half of the worker half of the committee is made up of workers and the other half would be made up of uh individuals that are selected by the management of the company and the the committee must meet uh every six months in order to hold meetings to discuss the the the progress of the company in generalizing the use of french uh drafting reports that are required for a submission to the oqlf making recommendations to management with respect to adopting policies to generalize the use of french providing learning services to workers to ensure that everybody is is using french as the language of the workplace and during these meetings also the the committee is required to take minutes and to um then uh send these minutes to the oqlf and to make these um these minutes public they must publish these minutes to uh and make them available to the staff this is a new requirement that wasn't previously in the charter prior to bill 96 something that's also new post bill 96 is that the oqlf can identify businesses with as few as five employees in key sectors and they would offer french language services provided by a new entity called uh francis asean quebec and um and provide these language services to the workers of the company um to ensure that workers are communicating in french within the workplace next slide please so some of the consequences for um not obtaining a franchisation certificate um in quebec are actually quite significant so the oqlf publishes and keeps up to date a list of non-compliant companies um so this is if you haven't registered with the um with the oqlf when required so when you meet that threshold and you haven't registered if you haven't complied with a franchisation program which has been required by the oqlf you'll end up on this this list of non-compliant companies and the government of quebec will refuse to enter into contracts or grant subsidies to any uh company that is on this list of non-compliant enterprises the oqlf also has greater investigative powers under uh the charter now post bill 96 and can inspect um workplaces take photos access data and work materials to conduct investigations basically and impose fines under the charter the oqlf can also now under the charter request an injunction from the superior court of quebec to force compliance with uh charter requirements and as it did before there are of course penal sanctions and fines under the charter which have increased significantly post bill 96 as i mentioned before there are some new entities that have been created under the charter to not only ensure greater compliance but also to promote franchisation in general so as i mentioned before francis quebec is the administrative unit which will oversee the france citation of uh workers within uh enterprises by offering french language uh learning services the minister of french language is going to be responsible for generally promoting the charter of the french language and seeks him power and protect the french language and a new branch of the oqlf will also be created under bill 96 it will be the french language commissioner who will be the who will be appointed by the national assembly for a period of seven years to oversee the oqlf and monitor the french language situation in quebec so let's look now at the increased penalties and other consequences of non-compliance which uh like i mentioned are quite significant so they've increased both for natural persons and for legal persons so for companies under the charter as you can see in this first chart here for natural persons under the previous charter in the column the middle column there were essentially two tiers to penalties that could be um imposed there were penalties for a first offense and basically for a second or subsequent offense and under the charter now on post bill 96 there are three tiers now two penalties that can be granted and they've increased significantly so for a first offense the the penalty for natural persons so for individuals the the first uh offense can range between 700 to 7 000 second offenses between 1400 to 14 000 and any subsequent offense would be between twenty one hundred to twenty one thousand dollars for legal persons the fines are even greater and essentially fines for legal persons between a first offense and a subsequent defense can range between three thousand to ninety thousand dollars so these penalties are currently in force they came into force as of the um dative ascent of bill 96 so as of june 1st 2022 they came into effect and what's important to note under the new charter post bill 96 is that an offense that continues for more than one day constitutes a separate offense so every single day um that an offense continues will constitute a separate ones a separate one so the fines can increase significantly for one single offense it's also important to know that any offense that's committed by a director or an officer will a director or officer basically is presumed to have committed an offense and can be held personally liable under the charter unless they've exercised due diligence and fines that are imposed on directors or officers can essentially range between 1400 dollars and forty two thousand dollars stephanie what with the the due diligence that is expected from directors would you be able to speak a bit more about that like what does that look like it hasn't been interpreted yet as as many of these new provisions under the charter but essentially what we anticipated is that it'll be similar to um much of the case law in other penal and sanction [Music] divisions so that exercising due diligence would essentially be putting policies and practices in place to ensure that uh any violations would not happen um so that would be in trying to ensure that there is compliance under the charter of the french language and that any type of uh violation that's happened is a mistake essentially um and so it would be important therefore for companies and uh and management to ensure compliance with the charter and be aware of their obligations under the charter in order to benefit from this type of defense sorry tanya go ahead i was just going to add that in our experience the oqlf has communicated with with entities that are non-compliant when they receive a complaint or even when they you know become aware of let's say a website that's only available in english but should also be available in french they they communicate first with that entity and tell them they're not compliant and if you comply typically as i said that the file usually gets closed so um i think that part of that exercising due diligence is probably complying when asked to comply um i typically think that fines are sought when a company is asked to comply and doesn't doesn't do anything about it and there were a couple questions just sort of wanting confirmation that the 25 employees were not necessarily referring to company-wide but based out of quebec 25 employees correct yeah 25 employees registered in in quebec essentially and it's over a six period a six-month period um [Music] that basically the employees are counted accounted for yeah so the the uh essentially the anybody that had or now the new threshold going from 50 to 25 it's one if company may be extremely large but it doesn't have 25 people in quebec it's not the same application exactly thank you i will hold the other questions for later on but just jumping in with small points of clarification for housekeeping um so just to continue on um just as under the previous charter so there's these um fines and penalties that we were talking about of course non-compliance can lead to having a franchisation certificate suspended or withdrawn completely what's also new under the charter as of now is that the oqlf can apply to have orders issued by the um that can have administrative orders issued and these can only be contested then by the before the administrative tribunal of quebec the oqlf can also apply for uh injunctions to force compliance and this is done then before the superior court of quebec and uh obviously any type of proceedings of this nature can end up being quite costly if uh if it results in litigation so we also touched upon the fact that the oqlf will have some broader investigation powers uh to ensure compliance under the charter and we've listed these powers uh here these are the four ways that the investigators can come into the workplace and essentially investigate so they can enter any at any reasonable hour any place other than a dwelling house where an activity governed by the act is carried on or any place where documents or other property to which the charter applies may be held so this would include obviously a workplace they can take photographs of the place and of the property located there they can cause any person present who has access to any computer equipment or other things that is on the premises to use it to access data contained in the electronic device computer system or any other medium to verify examine process copy or print out such data and require any information relating to the application of the charter or the regulations as well as communication for examination or reproduction of any related document anyone who has custody possession or control of documents must communicate them to the person making an inspection and facilitate their examination by that person prior to the inspection the person the uh the inspector from the oqlf will send a notice and and require the communication of certain documents um so these are quite broad powers prior to bill 96 that didn't include the powers to access computer documents or data on on any type of electronic devices or to explicitly make reproductions of things so this is this is quite broad investigative powers but um we look forward to seeing how the oqlf will actually exercise these powers um [Music] in the future yeah and to that i just feel like i need to interject here because these these powers are very broad and and i mean even surpass what the police would need a warrant to go and do uh if this was a criminal matter so remains to be seen whether this is challenged i don't know if um and it was in the news uh last week that two of the provisions of the charter have been suspended due to a constitutional challenge um uh proceedings that were uh filed in english under bill 96 now had to be accompanied by a certified french translation those provisions have been suspended by the superior court of quebec as of last week pending a final ruling on whether or not those articles are constitutional or whether they breach the the charters the right under the charter to to um appear before justice and language in either of the official languages of canada so we'll see and i i wonder whether these particular provisions will also be challenged to a certain degree because they do uh very much broaden the rights of the search rights of the ocular life absolutely i mean i've already had clients that have asked um to what extent the the um the oqlf would have the right to any type of proprietary information and and things of that nature i mean the scope of this is that they have the right to anything that is within the scope of the charter so there might be an argument to be made there that um any sort of confidential or proprietary information is out of scope of the charter but it remains to be seen how they will actually enforce these types of things in these investigations um next slide please so as tanya mentioned there is a new rate of action under the charter um there is a civil right of action that um any type of uh that any individual can bring um against a company or anyone that has violated a right under hr under the charter um this new right of for the civil right of action does not apply to a violation of the consumer um for goods and services um the the right essentially to be informed and served in french if the company employs less than five people uh in the province of quebec um so this is good news for um companies essentially that don't have a large presence in quebec that uh that essentially just have a a small office here in quebec do a little bit of business here that mainly have uh online maybe services that they provide but essentially there is a new civil right of action so this is a potential for class actions that individuals may bring under the charter uh and it remains to be seen how how this will actually uh play out in in quebec um and as we've mentioned before so any repeated contraventions of any requirement under the charter could give rise to the suspension or revocation of a permit or authorization not only under the charter but also any type of permit issued by the government because as we mentioned the government does uh keep an eye on this list of non-compliant companies uh so any um contracts or subsidies granted by the by the government um they they could be revoked provisions in a contract that cause injury injury to a contra injury by contravening requirements under the charter can be annulled on the application of a person who suffers the injury so this is a century essentially in contracts of adhesion that that this would apply and any clause drawn up in a language other than french that is deemed to be any clause drawn up in a language other than french is seen to be incomprehensible unless the contract was drawn up in that language in that other language on the adhering parties express consent so this once again would apply in contracts of adhesion so it needs to be drawn up in french first and provided to the adhering party in french failing which the contract will be deemed null and void and incomprehensible and this would apply also in situations of employment contracts as tanya mentioned earlier so just to sum up uh briefly with some of the key dates that we think would be most useful uh for everyone to keep in mind the new employer obligations and penalties and recourses are currently in force so it would be important for [Music] employers and businesses to review their policies and practices to ensure that they are already in compliance with these new uh requirements under the charter as for the translation of existing employment application forms documents relating to conditions of employment and uh training documents there is a little bit of leeway time for that and companies have until june 1st 2023 to um get prepared for that and with respect to the registration with the oqlf and the franchisation process um companies have until june 1st 2025 to prepare for um for that process and we would be happy to assist anybody with that process um and answer any questions that you may have about it so i would love to open up the uh practical considerations and questions uh session with gary and tanya and myself thank you both and it is uh lots of questions that come in and uh happy to take more as we start uh chipping away through these and in no particular order i'll try to give some sort of and i'm combining some of them for the for the sake of uh making it practical so if it's a one of the questions if it's a sas company that is not that doesn't have quebec employees but offers sas services in quebec like the platform themselves so so by sas software as a service for the audience as well i've learned to not use acronyms more than i have to uh the uh essentially the platform is translated but uh the some of the training materials and so on are not now the clients using this on behalf of this sas company uh will have quebec employees uh what does this company do do they need everything translated do they need like these trained materials youtube videos and and word documents etc that go along with as training materials for this software solution yeah that that's an interesting question because the the the the company itself doesn't fall under the purview of the charter they don't have obligations because they don't they don't well they have they might have obligations under the charter to a certain extent but they don't have employer obligations under the charter um so to the extent that they have to meet the requirements for their clients they don't their clients are the ones who need to be meeting the requirements of the charter and offering training in french or training in a language other than french so the the company itself can continue to provide english only training and the burden is on the employer who's using their services to locate potentially an equivalent french language training or provide an equivalent french language training and provide materials if materials are being provided for example if they have a slide deck that is being provided to the employees in english to have that translated and provided to their employees in french and tanya i'm actually now i'm asking something that our clients have asked us at alexa so as you know alexa has the professional services division as well as an ai software solution as well so and some clients have asked look there's certain internal communications etc that we may not get to doing professional translation do you think we could just do ai translation you know being that it's being trained for our purposes and uh the uh what are your thoughts around that yeah that's um so there's no requirement in the charter about the quality of the french that needs to be met right it has to be provided under equivalent terms so arguably that could be interpreted as meaning a good translation a translation that's well done but if you are pressed for time and you really need to meet your requirement to have something in french then perhaps it's best to have something in french and and uh you know um take the time you need to make it perfect um thereafter uh but of course as a lawyer it's difficult for me to advise anybody to have any sort of legal document uh made available in a language that has not been reviewed by by attorneys and i mean that's certainly the the best advice is always have the best translation yeah and it's interesting because you know when we've been asked those questions it's really been that look it's better to have uh french with small imperfections and not to have french at all that's certainly a better situation but obviously always strive to the best way possible i just thought it was worth asking but i will move on to another question and this is around postings so if you have an employee that or you're you're posting a job posting saying that we need somebody bilingual is it acceptable for example to say look we're servicing areas of quebec with bing anglophone communities so we need somebody that is bilingual for example um probably i i i steph i don't know if you have any any other views on this but in my view as long as you put something in the in the job description that justifies why you're asking for it you're meeting that requirement whether your assessment is sufficient um the oqlf could maybe come and see and an audit but i think what they're looking for is that the assessment has been done and that there is something in the job description that that justifies the need for a language other than french and if you're doing that then you're meeting the requirement of the legislation i agree with that i think that it is better to document the assessment and keep that on file um but there's nothing in the legislation that specifies that either it is just i think in the franchisation process as well that it's just best to keep that on file and in mind in case any questions are asked and just one quick housekeeping item we had planned 90 minutes for it so i'll continue to answer to to ask some of the questions to stephanie and tanya understanding that some of you may have to drop off we this will be recorded and you can access it afterwards as well but i encourage you to stay if you can because nothing better than continuing this live so another question that came up is uh does it make a difference so if if there is a quebec employee or a versus with a parent company versus a third party when it comes to ability to communicate i'm not sure i understand the question um and the uh so and i'm trying to give it the interpretation as well as possible being that the question is written but if the communications are not with quebec employee and third party but quebec employee and the parent company employees in ontario for example oh i see so if the communication is coming from a parent company that's not in quebec um there there's no exception for that um if if the employer has employees in quebec it is the the employees in quebec who have the rights that that are associated with the employer obligations so they have a right to receive communications in french and there's no distinction between whether it's coming from outside of the jurisdiction or not um so arguably if if let's say there's a quebec entity a subsidiary but that the communication is coming from corporate in ontario technically it's going through the quebec entity to get to the to the employees in quebec and would have to be available in french i actually have another question tying into subsidiary so i will try to package it together with this one so sometimes employees are reporting to more than one organization for example bank and subsidiary within the bank so the the assumption for the purpose of determining the number of employees in quebec is to establish in order to establish whether to apply for a certificate would it be would the the clients have to look at the employment contract and who the entity that it's signed with to determine this for the purpose of the certification yeah for the purposes of franchisation i i think so stephanie and um maybe do you want to take this one yes i mean it would have to the companies would have to look at the employment agreements to determine which which employees belong which with the subsidiaries or which entities and it ultimately comes down to um how many employees are declared in the corporate registrations as well that'll come that'll come into play for um for the oqlf that's what they're going to look at ultimately um so making sure that the corporate registrations are up to date would be really important as well and would there be double counting of the employee headcount for the subsidiaries for the subsidiary as well as if the employing question also supports the subsidiary in quebec which may require the sub to also have uh to apply for certification that's a good question i think that one would we'd have to look into that one a little bit further maybe maybe provide a legal opinion on that one i i figured i figured that may be a bit more complex and and will connect you offline i i this one just more housekeeping quickly that in terms of the as it pertains to the penalty chart uh what is a legal person i assume it's including physical as well as corporations that's the sort of the definition for in this context no so it's corporations associations and partnerships yeah so a legal person is essentially a company in various forms and a natural person is a person an individual another interesting question so if a partner in a law firm is considered is a pharma is a partner in a law firm consider an employee for the purpose of the charter of the french language and i'll give you both scenarios that sometimes you have partners that are sort of non-equity partners and partners that could be even incorporated through via as a partner through a corporation would that make a difference what's your opinion that's a good question they're not employees it for the purposes of employment standards legislation um i don't know i'd have to look into it and again it was one of those that it's because it would apply a bit more broadly than just that it would apply to accounting firms and sort of organizations where partnerships of this nature are allowed engineers etc so it is interesting uh and that makes a lot of sense yeah because they're they're for most intents and purposes they're not employees so i wouldn't be surprised if they were excluded from from the charter in terms of employee employer obligations employee rights but i can't say for sure i'm sure there's some case law 100 in the case of access to a computer uh would this mean that french-speaking employees will no longer be allowed to use a computer that is set up in english does the computer need to be set up in french let me to rephrase the question well you have to be set up in french for quebec based employees um i think there's two ways to answer that i'll take the the non-franchisation answer and steph why don't you take the franchisation answer but um there's an obligation under the charter to provide software in french unless a french version doesn't exist and so if your employees in quebec are using let's say the office suite which is available in french you have to provide that to them they need to have the option at least to use it in french and if companies are subject to franchisation measures what is recommended or preferable is to set everything to default being in french so having french keyboards being available having french software being the default having everything basically set up in french unless uh it's a requirement for the job or really an employee preference for it to to be in english so this is a question that had come through before the presentation but it ties in a bit to this and opening it again to both of you so let's say it's a proprietary tool that had been built uh by by a client or sort of by a company and it was done in english would they have to figure out a way to do a french version of this for the quebec employees i assume yes but i thought it's worth asking the question no no no yeah good news no uh the um the software obligations haven't changed under the charter it's one of the the aspects that weren't touched by bill 96 and it's been determined and we have benefited from interpretation of that of that uh provision that there's no obligation to create a french version if one does not exist uh so if you only have an english version of the software um it's fine to offer it if the french version doesn't exist you don't have an obligation to create a french version even if it's your software and um if you are going to provide a french version it has to be equivalent to the english version you can't just put out you know a subpar french version so um contrary to what we were discussing before about just trying to meet the obligation as quickly as possible you can't do that for software you have to put out an equivalent version so best to to not necessarily try to go and create a new software unless you're really invested in it i'm sure that's very helpful to much of the audience and is there any guidance on social media and how to use national company accounts that also target quebec there are uh steph you can probably speak to this more than than i can those have been interpreted there is uh quite a bit of guidance on the oqls website they have interpretation guides right stephanie correct yeah oglf has a whole guide on um how to um basically run your social media so that it meets the charter requirements um and and basically different options of how to set up either two separate social media accounts or how to basically um have one social media account that is bilingual and compliant with the charter requirements i think that a lot of companies a lot of our clients tend to prefer having two separate accounts just because the french will tend to confuse their [Music] clients in the rest of canada or in the us or elsewhere in the world um but when when doing the separate accounts you have to ensure that the french version is uh equivalent yeah and it's quite detailed i think unfortunately it's only available in french if i'm not mistaken it does yes but but it is there and it's quite quite detailed and it does yeah it's very helpful um so this is also an interesting question that affects a lot of sort of hr communications departments internally and even with an opt-out what do you suggest as a best practice for parent companies in ontario with subsidiaries in quebec when you want to have a company town hall do they have to be bilingual does it apply to only written materials or does the company have to worry also about the sort of conversations accompanied by company-wide video communications and if they if so if they recorded this would it sending it out afterwards would that be considered written communication so the the requirement only applies the very specific requirements only applied to written communications there's this general right of employees to work in french and the corresponding employer obligation to make sure that the employees have a right to carry out their work in french there's nothing specific about training town halls verbal communications or anything like that um arguably if you're telling somebody that they need to have a specific knowledge of english in order to be able to have these types of conversations with people who are outside of quebec that it's justifiable to have them participate in these meetings that are in english only without necessarily having to provide a translation but you should have somebody available who can answer questions make things clearer potentially send out the same message in french to those employees who are francophone or who have a difficult time understanding english yeah very insightful and so now when reaching out to potential job candidates known to be located in quebec must an employer communicate in french the job posting also allows for remote working from anywhere in canada that's a that's a tough one we it's actually come up with some of my clients our recruiters are anglophone they're not in quebec they can't speak with people in french in quebec so what do we do um i think the answer to that is you have to adapt you have to find a way that if you're trying to recruit somebody in quebec that they have the option to speak with somebody in french often what that looks like is having a on the ground hr person in quebec who can do the recruitment of a person who demonstrates a willingness or or a need to intervene in french another really interesting question so if could you revisit the foreign employer's obligation to merely communicate with its quebec employees so for example in the case of a u.s bank or insurance company can the ceo based in new york or washington send an email or video clip message to the quebec employees exclusively in english no [Laughter] the the unless they have specifically opted out right so if and i had this discussion with the client just yesterday what's the point of them opting out if you have one person who says i want to get things in french you have to create bilingual everything for that one person and in theory that's true um that that one person has a right to receive those email communications that are coming from the employer because you're not talking about just an individual communication from the ceo to that one person it is the communication at large from the company to its employees and that under the charter has to be in french or in french in another language does the b2b website that is not directly uh directed towards any consumers have to be available in french now we're foraying outside of the employer the employment realm i think so i think the this is a bit broader and and i'm not sure we can leave that for now uh i the on the same trend over as earlier in terms of uh and this is specifically referring to trainings does it have to be so virtual or face-to-face trainings do they have to be delivered in french yeah i think that was addressed uh previously that you know there's no obligation for for for the person for anything verbal to be done in french only other than that obligation that workers have a right to carry out their work in french um they asked for it yeah um i have had um client even before bill 96 i've had clients tell me that they did a training and some employees walked out because it was in english only and they said i don't understand any of this and i'm going to leave and essentially the employer couldn't really do anything about it because the the training was in english only um and their solution was then to offer that training in french as well and i think from a practical perspective tanya i think that's what it comes down to that that offering the training bilingual is ultimately a solution despite the legal obligation here and another question that came up and i'm not sure that it's necessarily tied to this but the example was can an employer with a head office outside of quebec for example nbc's insist that their employees write their communications in english i can't imagine that would be the case but well technically no but i mean if they want to be understood what else are they going to do if they're if they're um if their manager is an anglophone sitting in bc and they want to be understood and do their job correctly they're going to have to communicate with them in english the employer can't the employer could technically discipline somebody who is not meeting the requirements of the job because they can't communicate with their their uh manager or their supervisor but um i i yeah i think it would be important for um the job posting to have been uh explicit and saying that english was a requirement of the job and failing that it's it's highly risky to then uh discipline or do anything else vis-a-vis the employee now that there's this right to a complaint to the cnesst which is post bill 96 a pretty broad right to to complain to up to 45 45 days down here is it two years well there's it's 45 days for the prohibited prohibited practice and two years for the harassment and discrimination so it's the 45-day one yeah but it's a it's a funny you know question because practically speaking it wouldn't really come up but um the if the job posting clearly states you have to be able to communicate in english and then they don't then an employer can take steps to remedy that so the the uh and i will ask one more question and then wrap it up knowing that we're approaching time for new hires you can specify in the job post the english is required if justified but what do you do with long-time employees requiring them to communicate in english or when you promote them and promote and the promotion requires english for example so the first step there would be to ask them if they want to if they sign an opt-out or not right uh but th