Articles
Canada - Gowlings Advertising and Marketing Newsletter
01/11/2010
Amendments to the Charter of the French Language
The Québec Charter of the French Language (Charter) has been amended by the adoption of Bill 115, An Act following upon the court decisions on the language of instruction (Act). Although the Act focuses
primarily on the rules governing the eligibility of students for
instruction in English, it is of interest to readers who advertise or
sell their products in Québec as it significantly increases the
potential fines for those who contravene the provisions of the Charter
or its regulations, including the provisions requiring the use of French
in product labels and commercial advertising. The Act also introduces new provisions extending the scope of liability for violations of the Charter to those who assist in the commission of such offences.
Increased Financial Penalties
Effective October 19, 2010, the Act increases the potential fines for
contraventions of the Charter or its regulations as follows:
- In the case of a natural person, the minimum fine is increased from
$250 to $600, and the maximum fine is increased from $700 to $6,000.
- In the case of a legal person, the minimum fine is increased from
$500 to $1,500, and the maximum fine is increased from $1,400 to
$20,000.
For subsequent offences, the potential fines for both natural and
legal persons are doubled. Corporate advertisers should note that
whereas previously the Charter had capped a legal person’s
liability for a subsequent offence at $7,000, under the Charter as
amended, the upper limit for a legal person’s potential liability for a
subsequent conviction is increased to $40,000. In determining the amount
of such a fine, the Charter now directs the judge to consider,
among other things, the revenues and other benefits the offender
derived from the offence as well as any damages or socio-economic
consequences that resulted from it.
The Act also creates an additional, discretionary fine which may be
imposed by the judge, on an application made by the prosecutor and
submitted with the statement of offence. This additional fine is to be
equal to the financial gain the offender realized or derived from the
offence and may be imposed in addition to the maximum fine noted above.
New Liability for “Assisting,” “Advising” or “Encouraging” an Offence
The Act also expands the scope of liability for an offence
to those who, by their actions or omissions, assist a person in
committing an offence under the Charter or its regulations, or advise, encourage or incite a person to commit such an offence.
The amendments further create a presumption that an offence is
committed by a party upon proof that the offence was committed by their
agent, mandatary or employee. However, this presumption is rebuttable
where the party can establish that it exercised “due diligence” and
“took all the necessary precautions to ensure compliance” with the
Charter and its regulations.
Following this principle, corporations conducting business in Québec
may find themselves liable for the acts or omissions of their agents,
mandataries and employees where they breach the provisions of the
Charter or its regulations. Such liability may have significant
financial consequences due to the increase in the amount of potential
fines under the Charter and its regulations. Corporations wishing to
rebut the presumption that they committed an offence committed by their
agent, mandatary or employee bear the burden of demonstrating they
exercised due diligence and took appropriate precautionary measures.
Finally, the amendments provide that penal proceedings for offences under the Charter or
its regulations will be statute-barred if they are instituted more than
two years after the date on which the offence was committed.
Conclusion
In light of the recent amendments increasing the monetary fines and
expanding the scope of potential liability under the Charter,
corporations that conduct business in Québec are advised to review their
compliance with the newly amended Charter so as to avoid potential
liability. Corporations should further ensure that any employees,
mandataries or agents in positions to affect their compliance with the
Charter are well informed of its applicable provisions.
All advertisers and marketers conducting business in Québec should
exercise due diligence and implement adequate precautionary measures so
as to protect themselves from liability under the newly amended Charter
and its regulations.
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