Court temporarily suspends two provisions of Quebec’s Bill 96 French language reform

The Superior Court of Quebec has suspended the application of certain amendments to the Charter of the French Language that were slated to come into force this September following the recent passage of Bill 96. 

Bill 96

Bill 96, which aims to reinforce the predominance and use of French in Quebec, significantly amended the Charter and imposes various new obligations regarding the language of work, commerce and business, as well as certain contracts and public signs. Bill 96 received assent on June 1, 2022, and the resulting amendments to the Charter will take effect over the next three years, with the majority taking immediate effect. Refer to our earlier update for more information about Bill 96.

French as the language of justice

The amendments that were the subject of the recent court decision of Mitchell c. Procureur général du Québec relate specifically to the language of court documents, and would require that a French translation certified by a certified translator be attached to any pleading filed by a legal person that is drawn up in English. The amendments would also require the legal person making the pleadings to bear the costs of the translation.

The plaintiffs who brought the court application argued that the requirement to translate pleadings into French was contrary to section 133 of the Constitution Act, 1867, which provides for access to the courts in Quebec in both French and English.

Court decision

A person applying for a stay of execution has the burden of showing (i) the existence of a serious question to be tried, (ii) that irreparable harm will result if the stay is denied, and (iii) that the balance of convenience shows that the harm to the application outweighs that of the other party. 

On the first condition, the court agreed that the potential contravention of the Constitution Act, 1867 is a serious issue to be tried, particularly since the amendments may compromise equal access to the courts. 

When analyzing the irreparable harm criteria, the court considered there to be a serious risk that some corporations would not be able to assert their rights in a timely manner before the courts, or would be obliged to do so in a language other than their own. 

The court was also persuaded by the plaintiffs’ evidence that the number and availability of qualified translators in Quebec that can quickly and efficiently translate legal proceedings is insufficient. The court found that the resulting costs and delays may represent an additional barrier to corporations, particularly when considering that the absence of a certified French translation would result in an automatic refusal and dismissal of the procedure. 

Finally, the court concluded that the balance of convenience analysis supports the decision to temporarily suspend the application of sections 9 and 208.6 of the Charter. The court emphasized that only in specific cases can it suspend the application of a provision before ruling on its validity. In the present case, the court was convinced that the provisions at issue, if not suspended, may create an insurmountable barrier equivalent to a denial of justice for certain corporations, and the lack of measures to enable those legal persons to assert their rights leads the court to conclude that the balance of convenience supports the plaintiffs’ position. 

Takeaways

The effect of the stay of execution of sections 9 and 208.6 of the Charter of the French Language is to suspend, for the duration of the judicial review proceedings before the Superior Court, the obligation for legal persons to obtain a translated version by a certified translator of any proceedings that they may wish to file in English. 

Therefore, legal persons do not have to comply with this new requirement, pending a final decision on the merits by the Superior Court.

The authors wish to thank Noémie Célestin-Plante, law student, for her help in preparing this legal update.