Quebec recently enacted Bill 96, entitled An Act respecting French, the official and common language of Québec, which aims to overhaul the Charter of the French language. Here are 10 key changes in this law that will impose significant obligations on businesses: As of June 1, 2025, businesses employing more than 25 people (currently the threshold is 50 people) for at least six months will be required to comply with various “francization”1 obligations. Businesses with between 25 and 99 employees may also be ordered by the Office québécois de la langue française (the OQLF)2 to form a francization committee. In addition, at the request of the OQLF, businesses may have to provide a francization program for review within three months. As of June 1, 2025, only trademarks registered in a language other than French (and for which no French version has been filed or registered) will be accepted as an exception to the general principle that trademarks must be translated into French. Unregistered trademarks that are not in French must be accompanied by their French equivalent. The rule is the same for products as well as their labelling and packaging; any writing must be in French. The French text may be accompanied by a translation or translations, but no text in another language may be given greater prominence than the text in French or be made available on more favourable terms. However, as of June 1, 2025, generic or descriptive terms included in a trademark registered in a language other than French (for which no French version has been registered) must be translated into French. In addition, as of June 1, 2025, on public signs and posters visible from outside the premises, (i) French must be markedly predominant (rather than being sufficiently present) and (ii) the display of trademarks that are not in French (for which no French version has been registered) will be limited to registered trademarks. As of June 1, 2022, businesses that offer goods or services to consumers must respect their right to be informed and served in French. In the event of breaches of this obligation, consumers have the right to file a complaint with the OQLF or to request an injunction unless the business has fewer than five employees. In addition, any legal person or company that provides services to the civil administration3 will be required to provide these services in French, including when the services are intended for the public. As of June 1, 2022, subject to certain criteria provided for in the bill, employers are required to draw up the following written documents in French: individual employment contracts4 and communications addressed to a worker or to an association of workers, including communications following the end of the employment relationship with an employee. In addition, other documents such as job application forms, documents relating to working conditions and training documents must be made available in French.5 As of June 1, 2022, employers who wish to require employees to have a certain level of proficiency in a language other than French in order to obtain a position must demonstrate that this requirement is necessary for the performance of the duties related to the position, that it is impossible to proceed using internal resources and that they have made efforts to limit the number of positions in their company requiring knowledge of a language other than French as much as possible. As of June 1, 2023, parties wishing to enter into a consumer contract in a language other than French, or, subject to various exceptions,6 a contract of adhesion that is not a consumer contract, must have received a French version of the contract before agreeing to it. Otherwise, a party can demand that the contract be cancelled without it being necessary to prove harm. As of June 1, 2023, the civil administration will be prohibited from entering into a contract with or granting a subsidy to a business that employs 25 or more people and that does not comply with the following obligations on the use of the French language: obtaining a certificate of registration, sending the OQLF an analysis of the language situation in the business within the time prescribed, or obtaining an attestation of implementation of a francization program or a francization certificate, depending on the case. As of June 1, 2023, all contracts and agreements entered into by the civil administration, as well as all written documents sent to an agency of the civil administration by a legal person or by a business to obtain a permit, an authorization or a subsidy or other form of financial assistance must be drawn up exclusively in French. As of September 1, 2022, a certified French translation must be attached to motions and other pleadings drawn up in English that emanate from a business or legal person that is a party to a pleading in Quebec. The legal person will bear the translation costs. The application of the provisions imposing this obligation has, however, been suspended for the time being by the Superior Court.7 As of September 1, 2022, registrations in the Register of Personal and Movable Real Rights and in the Land Registry Office, in particular registrations of securities, deeds of sale, leases and various other rights, must be made in French. Note that declarations of co-ownership must be filed at the Land Registry Office in French as of June 1, 2022. The lawyers at Lavery know Quebec’s language laws and can help you understand the impact of Bill 96 on your business, as well as inform you of the steps to take to meet these new obligations. Please do not hesitate to contact one of the Lavery team members named in this article for assistance. We invite you to consult the other articles concerning the modifications made to Quebec’s Charter of the French language: Trademarks and Charter of the French language: What can you expect from Bill 96? Amendments to the Charter of the French Language: Impacts on the Insurance Sector “Francization” refers to a process established by the Charter of the French language to ensure the generalized use of French in businesses. The OQLF is the regulatory body responsible for enforcing the Charter of the French language. The civil administration in this law includes any public body in the broad sense of the term. An employee who signed an individual employment contract before June 1, 2022, will have until June 1, 2023, to ask their employer to provide them with a French translation if the employee so wishes. If the individual employment contract is a fixed-term employment contract that ends before June 1, 2024, the employer is not obliged to have it translated into French at the request of the employee. Employers have until June 1, 2023, to have job application forms, documents related to work conditions and training documents translated into French if these are not already available to employees in French. Among these exceptions are employment contracts, loan contracts and contracts used in “relations with persons outside Quebec.” There seems to be a contradiction in the law with regard to individual employment contracts which are contracts of adhesion and for which the obligation to provide a French translation nevertheless seems to apply. Mitchell c. Procureur général du Québec, 2022 QCCS 2983.

As an employer, you may occasionally be required to impose disciplinary measures on problem employees. Handling such difficult situations requires an objective, planned approach so as to put an end to the misconduct and minimize the risk of litigation. To assist you in implementing your intervention and imposing disciplinary measures, here is a brief review of the three essential steps: (1) conducting an investigation, (2) selecting an appropriate disciplinary measure, and (3) imposing the disciplinary measure. It is important to note that a disciplinary measure should be both a penalty and corrective action. Non-disciplinary (administrative) action is used when an employee commits an unintentional violation that cannot be rectified because of the person’s inability to perform the required work (e.g., due to lack of knowledge or skills). On the contrary, disciplinary action is warranted when an employee deliberately engages in misconduct. In this case, the measure is aimed at penalizing the employee and correcting the behaviour. Step one: conducting a thorough, objective disciplinary investigation Steps required for a disciplinary investigation When you find out that an employee may have committed a violation that warrants a disciplinary investigation, it is essential that you promptly gather the facts, rather than acting impulsively. Steps to follow: Determine whether it is necessary to suspend the employee with or without pay during the investigation; Determine who may have witnessed the violation; Set up meetings with the witnesses: Prepare a list of open-ended questions that do not suggest a version of the facts or a judgment of the situation (this list may be improved during investigation meetings by adding sub-questions aimed at obtaining more detail, while ensuring that the same questions are asked and the same aspects confirmed with all those interviewed); Meet with witnesses individually in a private area to ensure the confidentiality of the process; Set aside sufficient time to cover all aspects of the situation being investigated; Plan for replacements for employees called to meetings, if necessary; and Ensure that a second person is present to act as a witness (to take notes during meetings and to attest to what was discussed). Meet with potential witnesses: Take notes that are as complete as possible during meetings; Ensure that you fully understand the answers and information provided by the witnesses; Ask questions to obtain clarification when in doubt to avoid misunderstanding the version of the facts being reported; Do not be afraid of moments of silence, since they sometimes have the effect of making witnesses speak more, giving them the opportunity to elaborate on their answers; and Ideally, obtain a written statement, dated and signed by the witness, that summarizes the information provided during the meeting, or confirm the contents of the oral statement with the witness by having the witness read the notes taken during the meeting. Meet with the employee suspected of having committed the violation last, to obtain his or her version of the facts. Apply the same rules to that meeting as those listed above for setting up meetings and meeting with other witnesses. Act quickly and carefully It is important to act diligently when initiating and conducting the investigation, as doing so will allow you to: Collect evidence while it is still fresh in the minds of those concerned; Rectify the problematic situation quickly; and Avoid creating unnecessary stress for employees, particularly if the investigation reveals that no violation can be proven. Notwithstanding the above, take the time to gather all necessary information or carry out further investigation before deciding whether to impose a disciplinary measure. Respect the collective agreement or the organization’s working conditions If a collective agreement applies to your employees, you must ensure that you comply with the disciplinary investigation requirements set out in the agreement, including the obligation to inform the union or allow a union representative to be present at meetings, time limits for imposing a disciplinary measure, conditions for disclosing the reasons why a measure is being imposed, etc. If there is no collective agreement, it is prudent to follow the rules the employer has set for itself in internal policies or other working condition documents. Step two: selecting the disciplinary measure  If the investigation reveals that the employee has indeed committed a violation that warrants disciplinary action, you must now select a disciplinary measure. Penalty proportional to the misconduct When selecting a measure, the first principle is to ensure the penalty is proportional to the misconduct. The more serious the misconduct, the more severe the penalty should be. Penalty scale (subject to exceptions) Barring exceptional circumstances and subject to your organization’s collective agreement and policies, you should use a penalty scale, which normally includes the following: Verbal notice; Note: Although this is a verbal notice, a detailed description of the notice must be kept in the employee’s file to ensure that the situation is monitored. Written notice; Suspension; Depending on the circumstances, it is generally preferable to impose a short suspension, followed by a longer one, before dismissing an employee. Dismissal. There are exceptions to implementing such a penalty scale, including, in particular, the following: Serious misconduct having the effect of permanently breaking the relationship of trust which must exist between employee and employer; and Management employees (although such a scale is difficult to apply to management employees who have committed violations, nevertheless, with few exceptions, they should have been previously notified of the allegation and been given the opportunity to make amends). Things to consider when selecting a penalty In addition to using a penalty scale, you must ensure that you comply with the collective agreement and your business’s policies, which may include provisions for disciplinary action in the event of violations of the requirements specified in such policies. You must also verify whether the proposed measure is consistent with disciplinary measures applied in previous similar cases, so as to demonstrate that discipline is carried out consistently and fairly throughout the business, while respecting the specific facts of each case. Finally, you must consider the aggravating and mitigating factors that are relevant to your employee’s situation. Here is a non-exhaustive list of examples: Aggravating factors Mitigating factors Seniority (depending on violation) Seniority (depending on violation) Disciplinary record riddled with violations Clean disciplinary record Significant consequences of the violation for the business, customers, colleagues, etc. Violation with no significant consequences for the business, customers, colleagues, etc. Status or importance of the employee’s duties to the business Employee’s tasks are generally supervised or not critical to corporate affairs Premeditated violation Violation that was not premeditated Absence of remorse or apology Admission of guilt, show of remorse and apology Lack of collaboration or transparency during the investigation Collaboration and transparency during the investigation Employee autonomous when carrying out duties, generally without supervision Lax supervision or requirements on the part of the employer in the past in relation to the violation Step three: imposing the disciplinary measure  Once you have determined the disciplinary measure that best fits the circumstances, you must call a meeting to inform the employee of the measure. As with investigation-related meetings, you must meet with the employee in private and ensure that a witness is present with you to take notes during the meeting. Notes and disciplinary measures must be entered in the employee’s file. During the meeting, a disciplinary letter must be given to the employee, and the contents of the letter must be repeated to confirm the measure being imposed and to clearly and succinctly explain the violation(s) the employee is accused of. If the measure is not dismissal, you should take the opportunity to remind the employee of your expectations, which should also be explicitly stated in the disciplinary measure letter. In addition, the letter should state that any subsequent misconduct may result in a more severe disciplinary measure, which could even include dismissal. We remind you that you must document and carry out the measure in accordance with the requirements of the collective agreement and business policies, if applicable. Conclusion This quick reference guide should help you plan the imposition of a disciplinary measure to ensure that you: Carry out a proper investigation; Carefully select the measure to be imposed; and Impose a disciplinary measure in an appropriate manner, ensuring that you monitor your employee’s disciplinary file. However, measures must be imposed on a case-by-case basis. Our Labour and Employment Law team is available to advise and assist you for each of the three steps.

When an individual chooses to enter into an agreement via a management company, he  has to accept all of the consequences of that decision, the good and the bad. This principle applies in particular to working relationships. In the Kucer case,1 the Superior Court recently confirmed that, barring extraordinary circumstances, an employee hired and paid through their own management company is not entitled to termination notice or pay in lieu thereof. For tax purposes, the employee in question decided to proceed this way. Consequently, he was unable to demonstrate that the agreements entered into had been imposed by the employer. An individual seeking to avail himself of the tax benefits connected to a contract for services  may as a consequence lose the protections applicable to employment contracts. The context In 2007, Stephen Kucer started a company, which went bankrupt in 2012; its assets were acquired by 8237514 Canada inc. ("Canada Inc."), a wholly-owned subsidiary of 9265-0597 Québec inc. ("Québec Inc."), with Stephen Kucer as one of the shareholders. The shareholders of Québec Inc. wanted Stephen Kucer to become the chairman of Canada Inc., but Kucer insisted that he render his services via his own management company, Harland Tech Group inc. ("Harland").  Canada Inc. therefore entered into a contract for services with Harland, according to which Harland would provide Canada Inc. with Stephen Kucer's services as chairman, with Harland assuming responsibility for Kucer’s remuneration. Stephen Kucer lost his position as chairman of Canada Inc. when the latter terminated Harland's contract for services. Kucer then initiated proceedings seeking pay in lieu of notice of termination. The parties' positions Stephen Kucer argued he was dismissed without cause, and that as an employee of Canada Inc., he was entitled to pay in lieu of notice. In contrast, Canada Inc. argued that Stephen Kucer was not an employee, but rather an independent worker whose services were retained by Harland, and therefore, the agreement with Harland could be terminated for any reason  and without providing Stephen Kucer with any notice. The outcome of the dispute The Superior Court reviewed several rulings by the Court of Appeal and endorsed, among others, remark made by Justice Chamberland2 who stated that workers who seek to avail themselves of the benefits associated with a management company when rendering  services cannot avoid the disadvantages associated with such an approach, unless the arrangement is the result of a subterfuge or smokescreen imposed by the employer. In this matter, Stephen Kucer made the well-informed decision to sign a contract through his own management company. In the absence of any evidence that the employer imposed this way of operating, one cannot conclude that there were  any extraordinary circumstances which would allow the Court to pierce the corporate veil and to provide Mr. Kucer with the status of an employee. In the absence of a direct contractual relationship between Canada Inc. and Stephen Kucer, the Court refused to recognize he had any entitlement to pay in lieu of notice. This dispute is also demonstrative of the principle, underlined by the Court, , whereby economic dependence does not amount to an employer-employee relationship of subordination which would make it possible to conclude an employment contract, rather than a contract for services, existed between the parties. Conclusion A person rendering services to an employer via his management company cannot be considered to be an employee, unless he has demonstrated the existence of extraordinary circumstances. Given that such an individual is not a party to the agreement entered into with the company to whom services are being rendered, he cannot claim that the company is his employer, nor can he claim the legal protections afforded to employees.   8237514 Canada inc. v. Kucer, 2018 QCCS 12 Conseillers en informatique d'affaires CIA inc. v. 4108647 Canada inc., 2012 QCCA 535  

The case of Wilson v. Atomic Energy of Canada Limited1 came to a close on July 14, 2016, when the Supreme Court of Canada (the “Supreme Court”) reversed a controversial Federal Court of Appeal decision in which it had been held that a dismissal without cause was not necessarily an “unjust dismissal” under the Canada Labour Code (“the Code”).2 The facts Wilson, a procurement supervisor, was terminated without cause after working for Atomic Energy of Canada Limited (AECL), Canada’s largest nuclear science and technology laboratory, for four and a half years. He had an unblemished disciplinary record at the time. AECL offered him close to the equivalent of six months of severance pay, but he declined, and then filed an unjust dismissal complaint under section 240(1) of the Code. AECL continued to pay him his salary for six months, so he received the severance pay he had initially been offered — an offer AECL considered generous. History of the proceedings The adjudicator, who was the first decision-maker to hear the case, had two questions before him: Could AECL lawfully terminate Wilson’s employment without cause? If so, was the severance pay sufficient so as to render the dismissal “just”? The adjudicator held that the payment of severance by the employer does not render moot the issue of whether a dismissal was just. Thus, an employer is not allowed to dismiss an employee without cause simply because he offered severance. AECL applied to the Federal Court for judicial review of this decision. It succeeded: The Federal Court reversed the earlier decision on the basis that it was unreasonable. The Federal Court held that an employer can dismiss an employee without cause, provided it provides pay in lieu of reasonable notice, as permitted by the common law. The Federal Court of Appeal upheld this decision. It held that the Code does not limit an employer’s right to dismiss an employee without cause at common law. It is worth noting that the Federal Court of Appeal reviewed the Federal Court’s decision based on the “correctness” standard of review. The parties’ positions Before the Supreme Court, AECL argued that an employer governed by federal law can dismiss an employee without cause, provided it pays the employee pay in lieu of reasonable notice as required by the common law. Wilson disagreed, arguing that such an employer cannot dismiss an employee without cause, and that severance pay does not make a dismissal “just.” Nonetheless, both parties agreed that the reasonableness standard was the applicable standard of review. The applicable standard of review Despite the parties’ agreement on the applicable standard of review, Justice Abella wrote a lengthy obiter on the issue. Expressing the view that the reforms brought by the Dunsmuir decision3 had not simplified the judicial review of administrative decisions, she argued that another administrative law reform is needed. She proposed to abolish the correctness standard, leaving only a reasonableness standard. However, her colleagues were not prepared to reform the standards of review applicable in administrative law matters. The Supreme Court’s decision The issue to be decided was whether the adjudicator’s interpretation of sections 240 to 246 of the Code was reasonable. A majority of the Justices held that it was. Analysing the drafting of the Code, the context in which the provisions were enacted, and the opinions of a majority of adjudicators and federal labour law scholars, the Court noted that the main objective of the provisions is to provide non-unionized employees with protection against dismissal without cause similar to the protection enjoyed by employees governed by a collective agreement. Furthermore, at common law, or, where applicable, the Civil Code of Québec, an employer may, unless a statutory provision prohibits it, dismiss an employee without cause as long as it provides the employee with pay in lieu of reasonable notice. For example, in Quebec and Nova Scotia, the law expressly provides that an employer cannot dismiss an employee without cause. In Quebec, section 124 of the Act Respecting Labour Standards4 states that an employee with more than two years of continuous service can only be dismissed for good and sufficient cause. Unlike the Federal Court of Appeal, the Supreme Court held that, in federal employment law matters, sections 240 to 246 of the Code completely replace the common law principles. To hold otherwise would lead to incoherent results: the remedies set out in sections 240 to 245 would be of no benefit if an employer could dismiss an employee without cause and simply pay the employee severance. Furthermore, it would be incongruous to allow the protections the Code makes available to employees to be superseded by an employer’s right to dismiss an employee without cause under common law principles. Accordingly, the only sensible conclusion is that the scheme set out in the Code completely ousts the common law, and that, under federal law, an employer cannot dismiss an employee without cause simply by paying the employee pay in lieu of reasonable notice. In its decision, the Federal Court of Appeal justified its use of the correctness standard based on the existence of conflicting case law on the question to be decided. Justice Abella addressed this subject with the following remarks: [60] O ut of the over 1,740 adjudications and decisions since the Unjust Dismissal scheme was enacted, my colleagues have identified only 28 decisions that are said to have followed the Wakeling approach … [References omitted.] Of these 28 decisions, 10 were rendered after this case was decided at the Federal Court and are therefore not relevant to determining the degree of “discord” amongst adjudicators before this case was heard … [References omitted.] [61] That leaves 18 cases that have applied the Wakeling approach. Three of them were decided by Adjudicator Wakeling himself. In other words, the “disagreement [that] has persisted for at least two decades” referred to by my colleagues consists of, at most, 18 cases out of over 1,700. What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters. [Emphasis added] Ultimately, the approach taken by the Federal Court of Appeal was completely set aside by the Supreme Court, given that the controversy in the case law was not as significant as it seemed. It is also worth noting that the Supreme Court underscored some important similarities between the federal principles and Quebec’s scheme prohibiting dismissal without just and sufficient cause: [65] It is worth noting that the Code’s scheme, which was enacted in 1978, was preceded by similar Unjust Dismissal protection in Nova Scotia in 1975, and followed by a similar scheme in Quebec in 1979. [References omitted.] Unlike other provinces, the Nova Scotia and Quebec schemes display significant structural similarities to the federal statute. They apply only after an employee has completed a certain period of service and do not apply in cases of termination for economic reasons or layoffs. Like the federal scheme, the two provincial ones have been consistently applied as prohibiting dismissals without cause, and grant a wide range of remedies such as reinstatement and compensation. [66] I t seems to me to be significant that in Syndicat de la fonction publique du Québec v. Quebec (Attorney General), [...] [2010] 2 S.C.R. 61, interpreting the Unjust Dismissal provision in the Quebec Act, this Court concluded that “[a]lthough procedural in form”, the provision creates “a substantive labour standard” (para. 10). It would be untenable not to apply the same approach to the Unjust Dismissal provision in the federal Code, and instead to characterize the provision as a mere procedural mechanism. [Emphasis added] Finally, the dissent of Justices Moldaver, Côté and Brown is worth mentioning. Citing the rule of law, they conclude that the correctness standard applies, given the existence of conflicting lines of case law. In their view, the scheme created by sections 240 to 246 of the Code is simply another procedural mechanism available to employees who dispute the legality of their dismissal, and those provisions do not oust the common law. Such reasoning does not, in their view, deprive the Code’s remedies of their utility. Our view This Supreme Court decision puts a definitive end to the debate about dismissal without cause in federal law. In the future, employers can no longer seek to justify a dismissal without cause by paying severance, however generous it might be. This decision also marks an important convergence between the rules governing dismissal under Federal and Quebec law. 2016 SCC 29. R.S.C. 1985, c. L-2. Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. R.S.Q., c. N-1.1.