Bill C 13: Potential for uncertainty for federal undertakings in Quebec
On May 30, Bill C 13, which makes several changes to strengthen, protect and promote the French language, received its second reading in the House of Commons. The bill is currently being studied by the Standing Committee on Official Languages and the deadline for submitting a brief is October 31, 2022.
The federal government’s desire to modernize its approach to Canada’s official languages follows the adoption by the Quebec National Assembly of Bill 96, which made significant changes to the Charter of the French language (Charter). Bill C-13 has two components: the first amends the Official Languages Act and the second enacts the Use of French in the Federal Law on Private Enterprises (The act). If passed in its current version, the Act would confer new rights and obligations regarding the use of French to consumers and employees of federally regulated private enterprises (federal enterprises) operating in Quebec.
New consumer rights
The Act grants consumers in Quebec and regions with a strong Francophone presence the right to communicate and receive services in French from federal undertakings, which are required to respect these rights. This language obligation applies to oral and written communications and with respect to any document or activity related to these communications or services. If he wishes, the consumer can communicate with the company in a language other than French.
The Act also provides individuals or groups with recourse in the form of a complaint mechanism to the Commissioner of Official Languages (the Commissioner) if they believe that a federal undertaking has breached their obligations. The commissioner can also investigate on his own initiative. Federal undertakings found to be non-compliant may be subject to recommendations and orders described in the Official Languages Actand pecuniary damages can be requested before the Federal Court.
New language rights at work
The Act grants employees, or those assigned to positions of federal undertakings in Quebec, the right to work in French. This includes the right to receive all communications and documents from their employer in French, such as offers of employment, promotions, notices of termination, collective agreements and grievances arising therefrom. It also extends to the language in which the work instruments and computer systems are available.
However, this new right does not prevent the provision of communications and documents in both official languages simultaneously, provided that the use of French is at least equivalent to that of English. Federal enterprises will also have to inform their employees that they are subject to the Act and that they have recourse against their employer regarding language of work. In addition, federal enterprises will be required to set up a committee to support their management in promoting the use of French within the enterprise.
It will only be possible to require the knowledge of a language other than French as a condition of employment if the understanding of this other language is objectively justifiable for this position. It will be prohibited to treat an employee unfavorably on the sole ground that his knowledge of another language is insufficient or because the employee has exercised a right under the Act.
The law provides for acquired rights so that an employee who does not have a sufficient knowledge of French at the time of the adoption of the law cannot be treated unfavorably for this reason. Federal undertakings will also be responsible for examining the factors and conditions that may explain why some employees have less knowledge of French and may be required to adopt measures to promote employees’ knowledge of French.
When a federal company does not respect language rights in the workplace, employees can file a complaint with the commissioner. Where the Commissioner cannot resolve a complaint within a reasonable time, the complaint may be referred to the Canada Industrial Relations Board. The Commission can take a number of actions, including reinstating the complainant in their job and any action it deems just and likely to remedy or thwart the non-compliance efforts.
Potential conflicts arising from the application of Bill C 13 and the Quebec Charter of the French language
In particular, Bill C-13 offers federal enterprises the possibility of being subject to the Charter in their activities in Quebec rather than to the Act, a choice that would be reversible.
Unlike the Act’s choice mechanism, Quebec Bill 96 indicates that it cannot be interpreted as preventing its application to any company or employer operating in Quebec. Although the Charter does not expressly say that it applies to federal enterprises, the Minister of Justice of Quebec indicated during the study of Bill 96 that the Charter will apply to enterprises operating in the province, whether or not they fall within the jurisdiction of the Parliament of Canada. The regulator responsible for applying the Charter, the Quebec office of the French languagereached out to federal companies operating in Quebec to force them to register for a “francization program” under the Charter.
In addition, the recourse mechanism provided by the Charter differs from that provided by Bill C-13, is more extensive and creates a new private right of action for all residents of Quebec to seek an injunction, damages and punitive damages for violations of the provisions of the Charter, without prior obligation to seize the Quebec office of the French language of the problem through a complaint. This is different from the recourse mechanism provided by Bill C-13, which provides for a private right of action, but only before the Federal Court and only after a complaint has been filed with the commissioner. Federal undertakings operating in Quebec that comply with the Act and do not choose to be governed by the Quebec Charter may nevertheless face the concurrent application of the Charter and its recourse mechanism.
This potential conflict sets the stage for a constitutional battle over the distribution of powers. As part of the modern approach to resolving constitutional questions of this nature, the courts have emphasized the principle of cooperative federalism. This principle favors the simultaneous application of valid laws enacted at the federal and provincial levels, even if they deal with the same matter. In the recent Bell Canada decision, the Quebec Court of Appeal held valid the application of the Consumer Protection Act to federal undertakings on the ground that the jurisdiction of the federal government was not fettered or frustrated by the application of provincial law. Conversely, it is a long-established principle that the Parliament of Canada has exclusive jurisdiction to regulate the essential elements of federal undertakings, including their management and operation, and several provisions of the Quebec Charter attempt to regulate this same matter despite exclusive federal jurisdiction over federal undertakings.