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Bill 96: Impacts On The Real Estate And Financial Services Sectors – Financial Services


On May 24, 2022, the National Assembly of Quebec passed Bill 96,
An Act respecting French, the official and common language of
Québec (Act)
, which sets out to confirm the status of
French as the official language and the common language of Quebec.
The Act amends the Charter of the French Language
(Charter) as well as several other Quebec laws, by requiring the
civil administration to use the French language and ensure its
protection in an exemplary manner.

Several provisions of the Act have come into force since its
assent on June 1, 2022, notably in the labor and employment sector.
For further information on the matter, please refer to our May 2022
Blakes Bulletin: New French Language Requirements for
Employers: Are You Ready?


In this bulletin, we provide an overview of the provisions of the
Act that pertain more specifically to the real estate and financial
services sectors, as well as some of their operational impacts, to
understand how businesses and professionals working in these
sectors will have to adapt their practices to comply with the
Act.

LANGUAGE OF COMMERCE AND BUSINESS

Since June 1, 2022, businesses offering goods or services to
consumers are required to respect the consumer’s right to be
informed and served in French. While the right for consumers to
demand service in French has been guaranteed under the Charter for
many years, the Act now introduces a similar obligation for
businesses and creates the possibility for a civil action to be
brought directly against them should they fail to meet this
obligation.

Similarly, businesses that offer goods and services to a public
other than consumers must inform and serve the public in French.
These amendments to the Charter impose the use of French as the
language of commerce and business, thereby transforming the
interactions between businesses and their customers, whether they
are individuals or other businesses.

Various penalties may apply for breaches of these new
obligations, including fines, which have increased since the Act
came into force. Fines now range from C$3,000 to C$30,000 for legal
persons (up from a range of C$1,500 to C$20,000) and are now to be
doubled for a second offence and tripled for any subsequent
offence. Moreover, the minister may even suspend or revoke a permit
or other authorization of the same nature if the business
repeatedly contravenes the provisions of the Charter.

Other amendments to the Charter are closely related to the
imposition of French as the language of commerce, such as the
obligation to provide all commercial communications (such as
brochures, leaflets, catalogues, purchase orders, invoices,
receipts, instructions for use, guarantee documents and
acquittances) in French, regardless of the medium. This obligation
has been in force since June 1, 2022. It should be noted that such
communications may be made in a language other than French if the
French version is available on terms that are at least as
favourable. Moreover, certain amendments pertaining to the language
of commerce are to come into force at a later date. For example,
the obligation for French to be markedly predominant on the
exterior signage of businesses is set to come into force on June 1,
2025.

RESIDENTIAL REAL ESTATE AND CO-OWNERSHIP

Since June 1, 2022, contracts of sale or exchange involving
mainly residential properties with fewer than five dwellings or a
fractional ownership in a mainly residential property held in
co-ownership are to be written in French. This new obligation also
applies to promises to enter such contracts, as well as to
preliminary contracts and memoranda for residential properties,
existing or planned, that are sold by the builder or a developer
within the meaning of the Civil Code of Québec
(Civil Code).

Such contracts and other documents may be drafted in a language
other than French, provided that this is the express wish of the
parties involved. However, if these documents are to be published
in the Land Register, they must, as of September 1, 2022, be drawn
up in French or translated into French if they are in English.

Similarly, since June 1, 2022, declarations of co-ownership, as
well as amendments to acts constituting co-ownerships and to
descriptions of the fractions of a co-ownership, must be presented
exclusively in French in the Land Register. However, an exception
is provided for documents that amend or correct a declaration or
act that was published exclusively in a language other than French
prior to June 1, 2022.

A contract or any other document that is drafted in a language
other than French in contravention of the new rules will be
declared null. However, this nullity is relative; the party
invoking the nullity of such contract or other document is required
to prove that it has suffered injury because the document in
question was not drawn up in French. Alternatively, a party to a
contract may apply for a reduction of its equivalent obligation
rather than the annulment of the contract. For published documents,
there also exists the possibility of refusing or challenging the
publication.

It should also be noted that as of June 1, 2023, contracts
referred to above that are contracts of adhesion (agreements to be
bound) will also have to comply with new requirements aiming to
protect the right of the adhering party to do business in French,
as discussed further below.

PUBLICATION OF RIGHTS

As of September 1, 2022, applications for registration with the
Land Registry Office (Land Registry), for immovable rights and
property, and with Quebec’s register of personal and movable
real rights, the Registre des droits personnels et réels
mobiliers (RDPRM), for movable rights, must be drawn up exclusively
in French. Furthermore, all documents that are to be provided with
an application for registration and that are written in a language
other than French must be accompanied by a translation
authenticated in Quebec.

Notwithstanding the above, and as noted in the previous section
of this bulletin, an act amending or correcting a document (or act)
submitted prior to June 1, 2022, and its accompanying documents,
may be submitted to the Land Registry in a language other than
French, if the original document was also submitted in a language
other than French. However, this exception applies only to
registrations in the Land Register. While what constitutes an
“act amending or correcting” remains to be clarified, it
would be prudent in any case to opt for a restrictive
interpretation of the acts included within the scope of this
exception.

These amendments to the Civil Code introduced by the Act have
far-reaching consequences; on the one hand, these new requirements
raise issues with regard to the choice of the language of a
contract by the parties involved. On the other hand, an application
for registration which is not submitted in French may be refused by
the Land Registry Office and the RDPRM. Nevertheless, the fact that
an application for registration is accepted by the registrar does
not constitute indisputable proof of its validity or compliance
with the applicable laws and, ultimately, the enforceability of the
published rights against third parties. It is therefore the
responsibility of the grantors and beneficiaries of the published
rights to ensure that registration applications comply with the
requirements of the Act. It should be noted that, prior to the
passing of the Act, several issues pertaining to the application of
the new requirements of the Act to registrations that are intended
to correct or amend rights already published in the RDPRM in a
language other than French were brought to light; it is regrettable
that the legislator chose to limit this exception only to
registrations in the Land Register.

Should matters involving these new provisions come before the
courts, it is hoped that the application of the new provisions and
the consequences of possible infringements on the rights published
in the various registers will be weighed carefully against the very
purpose of the publication of rights, which is to enable persons to
set up their rights against third persons and to determine their
rank.

PLEADINGS

The Act also provides that as of September 1, 2022, a French
translation certified by a certified translator must accompany any
pleading drawn up in English that emanates from a legal person.
Without such translation, a pleading may not be filed.

However, the provisions of the Act pertaining to the certified
translation of pleadings filed in a language other than French have
been the subject of an application for judicial review. On August
12, 2022, the Superior Court of Quebec (Court) issued a decision on
the application for suspension, which was granted. Consequently,
these provisions are suspended until the Court renders its final
judgment on the matter, which is expected in November.

CONTRACTS WITH THE CIVIL ADMINISTRATION

As of June 1, 2023, contracts entered into with the civil
administration are to be drawn up exclusively in French. The
Charter provides a broad definition of “civil
administration” that includes, among other things, the
Government of Quebec and its departments, government bodies, bodies
whose personnel is appointed under the Public Service Act,
bodies to which the Government of Quebec appoints the majority of
members or directors, municipal bodies, public transit authorities,
school bodies, as well as bodies in the health and social services
network.

The Act sets out certain exceptions, such as for when the civil
administration enters into a contract outside Quebec, or for
certain contracts that may be drafted in both French and another
language, such as loan contracts, financial instruments and
contracts whose object is the management of financial risks,
contracts for the purchase or sale of options and futures
contracts.

The penalty applicable to a contract entered into with the civil
administration that is not drafted exclusively in French (unless an
exception applies thereto) is unequivocal: it will be absolutely
null, whether or not the contravention causes injury.

It should also be noted that as of June 1, 2023, certain
communications with the civil administration, including written
documents sent to an agency of the civil administration by a legal
person or enterprise to obtain a permit or other authorization of
the same nature, or a subsidy or other form of financial
assistance, must be drawn up exclusively in French. Similarly, any
service rendered to the civil administration by a legal person or
an enterprise must be in French. The Minister may, after obtaining
the opinion of the Office québécois de la langue
française, suspend or revoke a permit or other similar
authorization provided to an enterprise found to have repeated
contraventions.

CONTRACTS OF ADHESION

As of June 1, 2023, contracts of adhesion (agreements to be
bound) and all related documents will also have to be drawn up in
French. Certain exceptions apply, notably for contracts used in
relations with persons outside Quebec. Moreover, in general, the
parties to a contract of adhesion may be bound only by its version
in a language other than French if, once the French version has
been handed to the adhering party, such is their express wish. In
practice, to avoid any ambiguity, it will be essential to put in
place new measures to demonstrate that the French version of the
contract has indeed been handed to the adhering party and that the
latter has nevertheless opted for the English version.

Consequently, a mere language clause in a contract of adhesion
drafted in English will no longer suffice to comply with the
provisions of the Charter. Failure to comply with these new
requirements may result in the contract being declared null or in
the reduction of its equivalent obligation. It should be noted that
the adhering party invoking the nullity of a contract will not be
required to prove that the contravention causes them injury.

CONCLUSION

Bill 96 brings significant amendments to the Charter and other
key legislation in Quebec, many of which have already had, or will
soon have, concrete impacts on the real estate and financial
services sectors. As several of these amendments are already in
force, it will be interesting to see how all these changes interact
as they come into effect. More importantly, it will be essential to
see how the real estate and financial services sectors adapt to
this new reality. For example, will professionals choose to draft
bilingual documents and contracts? Or will they instead draw up
documents and contracts in French, accompanied by certified
translations?

Given that every sector will be affected by these changes,
businesses should review their internal practices to ensure their
compliance with these new legal obligations.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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