In June 2022, Quebec’s National Assembly passed Bill 96, An Act respecting French, the official and common language of Québec (“Bill 96”), significantly amending the Charter of the French Language (the “Charter”).
One of the amendments brought by Bill 96 to the Charter is the inclusion of a new article 89.1: “No provision of this Act may be interpreted in such a way as to prevent its application to any enterprise or employer carrying on its activities in Québec.”
During debates at the National Assembly, Quebec’s Justice Minister has been extremely clear that the intention article 89.1 was to ensure “that the provisions of the Charter be applied to businesses and employers operating in Quebec, regardless of whether they fall under the jurisdiction of the Parliament of Canada or of Quebec. […] So, this is the provision, and the Government of Quebec is very clear that it is sovereign in its areas of jurisdiction, it will exercise them to the full extent of its jurisdiction, and we will be extremely firm on these points[…].” [our translation].
In light of this, the Office québécois de la langue française, the regulatory body responsible for enforcing the Charter, has already started sending letters to federally regulated employers to have them comply with the Charter, and on its website, it urges federally regulated employers to comply with the Charter.
Many federally regulated private employers operating in Quebec, including First Nation Governments, are now wondering if they are subject to the Charter, following Bill 96’s adoption. In this article, we will review the state of the law prior to Bill 96 regarding the application of the Charter to federally regulated private employers, specifically First Nation Governments, and how Bill 96 may have changed things.
Before Bill 96
Prior to Bill 96, there was a general consensus that the Charter did not apply to federally regulated private employers operating in Quebec, even if the Charter did not specifically carve them out. A paper prepared by the Government of Canada in 2013 regarding the language of work in federally regulated businesses in Quebec provides that “[i]n Quebec, there are two separate frameworks governing language of work that apply to different categories of businesses and workers: the Official Languages Act (OLA), which covers all “federal institutions” (i.e., institutions of Parliament and the Government of Canada), and the Charter of the French Language (Quebec Charter), which applies to all provincially regulated workplaces. Approximately 135,000 employees at some 1,760 federally regulated private businesses in Quebec are not currently subject to the OLA or the Quebec Charter.”
Decisions originating from both the Quebec and federal jurisdictions have also stated that federal employers were not bound by the Charter because an employee’s language of work is a condition of their employment, which is not regulated by provincial statutes.
In a 2006 decision from the Commission des Relations du Travail (as it then was), Girard c. Telus Québec inc., 2006 QCCRT 236, an employee was contesting the employer’s decision to terminate his employment because he had insufficient knowledge of the English language – such dismissals are prohibited by the Charter. However, the Tribunal dismissed his claim, finding that “language of work is a condition of employment and that, in this case, the consideration of complaints about language of work is a labour relations matter under federal jurisdiction” [our translation]. Therefore, the employee’s complaint had no merit since his dismissal was not prohibited by federal legislation.
In a 2011 decision from the Canada Industrial Relations Board, Léveillé, 2011 CIRB 616, the complainant had filed an unfair labour practice complaint against his union, alleging that the union failed in its duty to represent him when it declined to pursue his grievance in which he alleged the employer was violating the Charter. The Board dismissed the complaint, concluding that the union had fairly represented the complainant. Additionally, the Board also reminded the parties that the employer was federally regulated, meaning that the Charter did not apply to it: “[l]anguage of work is considered a condition of employment; a company that falls under federal jurisdiction is not subject to the Charter of the French language. […] The Board […] finds that the union did not breach its duty of fair representation in concluding that the employer had the right to include functional knowledge of English in the job posting at issue. There was nothing discriminatory in this decision by the union, especially since the undertaking comes under federal jurisdiction and is not subject to the provisions of the Charter of the French language.”
These two decisions reiterated the well-known principle that Quebec’s employment-related legislation did not apply to federally regulated employers. However, the Quebec Government may not give much weight to these decisions with its renewed interest in imposing the Charter on all employers.
After Bill 96
As outlined earlier in this text, Quebec’s Government has clearly stated its intention for the Charter to apply to all employers carrying on their activities in Quebec, whether provincially or federally regulated. This has many federally regulated private employers wondering where they stand, and if they must now comply with a law they were not previously subject to.
With respect to First Nation Governments, it appears that they may also fall under the purview of the Charter. The preamble to the Charter provides that “the National Assembly of Québec recognizes the right of the First Nations and the Inuit in Québec, the first inhabitants of this land, to preserve and develop their original language and culture.” However, it appears that only Reserves are exempted from the Charter:
97. The Indian reserves are not subject to this Act.
The Government, by regulation, shall determine the cases, conditions and circumstances where or whereunder an agency or body contemplated in Schedule I is authorized to make an exception to the application of one or several provisions of this Act in respect of a person who resides or has resided on a reserve, a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories (chapter R-13.1). […]
There is not currently any regulation published under article 97.
In addition to the amendments to the Charter to explicitly include federal employers under its scope, it is also possible that because of recent developments in constitutional law, courts may uphold article 89.1 of the Charter and declare that federally regulated private employers do have to comply with the law.
Under the federal paramountcy test – the test established by the Supreme Court of Canada to determine whether a province’s law goes beyond its jurisdiction – courts may find the Charter does not frustrate or conflict with the federal government’s jurisdiction on employment law in federal matters. In other words, courts may find that the requirement to meet language obligations as an employer operating in Quebec does not affect the true nature of the federal jurisdiction in employment law. The paramountcy test is as follows:
- there is an operational conflict because it is impossible to comply with both laws, or
- although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.
The first branch of the test has been described in the jurisprudence as actual conflict in operation as where one enactment says “yes” and the other says “no”. The question is whether both laws can operate side by side without conflict or both laws can apply concurrently, and citizens can comply with either of them without violating the other. The assessment under this branch is not limited to the actual words or to the literal meaning of the words of the provisions at issue. Rather, the provisions must be read properly based on the modern approach to statutory interpretation.
If there is no conflict under the first branch of the test, one may still be found under the second branch. The question under the second branch is whether operation of the provincial Act is compatible with the federal legislative purpose. The effect of the provincial law may frustrate the purpose of the federal law, even though it does not entail a direct violation of the federal law’s provisions.
Canadian Western Bank v. Alberta, 2007 SCC 22; Alberta (Attorney General) v. Moloney, 2015 SCC 51
There has been growing support for the Charter’s application to federally regulated employers in Quebec, and many have argued that the Charter would not conflict with or frustrate any federal laws. See, for example, La Charte de la Langue Française : Une Entrave aux Activités Essentielles des Entreprises Privées de Compétence Fédérale au Québec? by David Robitaille, where he writes : “ the Charter, its regulations, as well as its interpretation by the courts, are imbued with flexibility such that it will not, in most cases, interfere with the essential activities of federal undertakings, particularly their management and labour relations; on the contrary, any enterprise whose management on the contrary, any enterprise whose management is wise could only benefit” (our translation).
It is important to note, however, that the potential under the paramountcy test for the Charter to apply to federally regulated private employers in Quebec, is in great part because there is currently no federal law applicable to them with respect to the language of work. This may not be the case for much longer.
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
In April 2022, the federal government tabled 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 (“Bill C-13”), in the House of Commons. Bill C-13 amends the Official Languages Act, and proposes the creation of a new law: the Use of French in Federally Regulated Private Businesses Act. This proposed new act would create a new right for employees of federally regulated private employers in Quebec and in other regions with a strong francophone presence to work in French. As a result, employers covered by the proposed legislation would have corresponding obligations to promote and respect that right.
Most federally regulated private employers in the affected regions would have to meet new language requirements. However, Bill C-13 specifically carves out “a council, government, corporation or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982” from the definition of a “federally regulated private business.” As a result, First Nations Government would not be required to meet the obligations set out in Bill C-13. Importantly, under the paramountcy test, First Nations Government would also be exempt from complying with the Charter if Bill C-13 is passed in its current form. That would be because, to use the phrasing of the Supreme Court of Canada, the federal law would say “no” when the provincial law says “yes” – creating conflict.
In Our View
The law on this matter is far from settled. Both the Quebec and Federal governments have taken strong positions with respect to their respective jurisdiction regarding language of work. With Bill C-13 being far from receiving royal assent, and with the Charter being challenged in court, federally regulated private employers may not know exactly where they stand vis-à-vis the Charter for some time.
In the meantime, employers will have to determine their comfort level with noncompliance with the Charter and the potential risks that may pose. For more information, please contact Pascale Robillard at 613-608-6716.