Important Notice: On May 13, 2021, the Québec government tabled Bill 96 which aims to better protect the French language in the Province of Québec. While the contents of our firm’s French Language Requirements in Québec series reflect the current state of the law, the proposed legislation modifies certain provisions of the Charter of the French language pertaining to the language of commerce and business. Accordingly, in the event that Bill 96 is adopted, we will update our French Language Requirements in Québec series. Please subscribe to our IP Updates so you don't miss any announcements.
This closing article of our firm’s French language requirements in Québec series explores the role of the Office québécois de la langue française (OQLF) and the sanctions businesses may face for violating the
Charter of the French language (R.S.Q. c. C-11) (French Charter) and its ensuing regulations.
You can consult the other articles in this series here:
- Part 1 – An introduction
- Part 2 – Inscriptions on products and accompanying documentation
- Part 3 – Language used in commercial publications, including websites and social media
- Part 4 – Public signs, posters and commercial advertising
- Part 5 – The “recognized trademark” exception
- Part 6 – A “recognized trademark” displayed outside a building; and
- Part 7 – The rules governing business names
The OQLF is the administrative body responsible for enforcing the French Charter and its regulations. Although the OQLF has the authority to act on its own initiative by monitoring the landscape to identify violations of the French language requirements,
we have observed that it rarely does so. As such, the OQLF will generally only investigate alleged violations upon receipt of a complaint, usually from other businesses or members of the general public.
If a complaint is received by the OQLF, it will be investigated. If the investigation concludes that there has been a violation of the French Charter, a formal letter will be sent to the offender which provides a timeframe within which to respond and
remedy the non-compliance.
We have found that the OQLF is generally reasonable with offenders prepared to comply but requires more time to do so than the original timeframe provided.
Violation Fines
If an offender does not comply with the OQLF’s request, the OQLF may refer the matter to the Director of Criminal and Penal Prosecutions, who in turn, may take action against the offender before the Court of Québec. Should the Court of Québec find that there has been a violation of the French Charter and its regulations, it may impose the following fines, for a first violation:
- If the offender is an individual (natural person): 600 CAD to 6,000 CAD; or
- If the offender is a business (legal person): 1,500 CAD to 20,000 CAD. 1
Note that fines are not multiplied by the volume of a problematic product or item; they are awarded by “subject matter” of the violation. For example, if a business sells two thousand bottles of shampoo bearing non-French inscriptions and
the Court orders the payment of a fine, the fine will range from 1,500 CAD to 20,000 CAD for violating the dispositions pertaining to inscriptions on products. The fine is not multiplied by 2,000 as there is only one problematic product, i.e. the
bottle of shampoo. The fines are generally doubled for a subsequent violation.2
The amount of the fine is determined by taking into account the revenues and other benefits the offender derived from the violation and any damages and socio-economic consequences which resulted from the violation.3
As mentioned in our previous articles, based on recent figures, the OQLF seems to focus on non-compliance in terms of public displays (e.g. commercial signs) and websites, targeting service providers more than manufacturers of goods. In addition, over
the last few years, we have noticed that fines imposed by the Court tend to fall on the lower end of the spectrum (i.e. for a legal person, between 1,500 CAD to 3,000 CAD).4
In addition to the fines laid out above, even in a case where the maximum fine has been imposed, a further fine equal to the financial gain the offender derived from the violation may also be imposed.5 Moreover, the French Charter provides that a judge may order the removal or destruction of any poster, sign, advertisement, or billboard that is not compliant with the French Charter and its regulations.6 There is no similar provision with respect to products. Thus, it appears that the Court does not have the authority to pull products from the shelf.
Reputational Risk
There is also a reputational risk associated with a violation of the French Charter and its regulations since the penal proceedings referred to above are public and may be reported in the media. This is very bad publicity for any businesses conscientious of their brand image, as the presence of French language in the Québec landscape is a very sensitive topic in the province.
We hope that our firm’s French language requirements in Québec series provided you with tools to better navigate these rules and operate in Québec in compliance with the French Charter and its regulations.
Stay tuned for our firm’s updated series once the revised legislation comes into force.
In the interim, please contact Smart & Biggar’s Trademarks group for further guidance and assistance on any questions you may have regarding French language requirements in the Province of Québec.
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.