August 11, 2023
What’s happening? 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”) received Royal Assent on June 19, 2023. Bill C-13:
• Amends the Canada Labour Code: to create new requirements for members of the Canada Industrial Relations Board (the “Board”);
• Amends the Official Languages Act (the “OLA”) to, amongst other things, emphasize that the Canadian government’s commitment to advancing the equal use and status of English and French in Canada, and establish government measures to achieve this objective; and
• Introduces the Use of French in Federally Regulated Private Businesses Act (the “New Act”) to establish new rights for French-speaking employees in federally-regulated workplaces in Québec.
The New Act, which has implications for many federally-regulated employers, will be the focus of this HR Alert.
Effective Date. The effective dates of the New Act are set out below. We will continue to monitor for any new developments and provide updates as they become available.
What does it say? The key requirements of the New Act are as follows:
| Requirement | Requirement details | Section in New Act | Effective date |
|---|---|---|---|
| Choice of Law | Federally-regulated private businesses with workplaces in Québec (“Québec Employers”) can choose to have either of the following legislation apply to their workplaces: (1) Quebec’s Charter of the French language (“Charter”); or (2) The New Act A Québec Employer must give notice (details to be determined by future regulations) of the day it will become or cease to be subject to the Charter. | s. 6(1), (2) | To be determined by order of the Governor in Council (the “OIC Date”). |
| Language of work | Quebec Employers: A Québec Employer’s employees (“Québec Employees”) have the right to: (1) Complete their work and be supervised in French; (2) Receive all communications (verbal or written, including employment contracts and training documents) in French during and after employment; o Communications can be in English or another language (a “Non-French Language”) but the use of French in widely distributed communications must be equivalent to the use of the Non-French Language; o However, a Québec Employee can receive all communications in a Non-French Language, if the Québec Employer and Québec Employee both agree to this; and (3) Use regularly and widely used computer systems (software) and work instruments in French. | s. 9(1), (1.1), (2), (3), (6) | OIC Date |
| Non-Québec Employers: Federally-regulated employees working in private businesses in a region with a strong francophone presence (“Non-Québec Employees”) are entitled to the above three rights. | s. 57(1) | Second anniversary of the OIC Date | |
| Job postings | Québec Employers: Québec Employers must post job advertisements in French (but can also post in a Non-French Language). • If a job is posted in multiple languages, each advertisement must be posted: o Simultaneously; o “By means that are of the same nature”; and o Such that each posting reaches a comparably-sized target audience. | S. 9(2.1) | OIC Date |
| Non-Québec Employers: Federally-regulated private businesses in a region with a strong francophone presence (“Non-Québec Employers”) are required to comply with the job posting requirements above. | s. 57(2) | Second anniversary of the OIC Date | |
| Employment Contracts | • Employment contracts can be made exclusively in a Non-French Language if the Québec Employer and Québec Employee agree. • If the employment contract is a contract of adhesion, the Québec Employer will need to provide the contract to the Québec Employee in French first (but it does not need to be signed). | s. 9(4), (5) | OIC Date |
| Fostering the used of French | Québec Employers: Québec Employers must (while also considering Québec Employees who are close to retirement or have conditions that hinder learning French): (1) Inform Québec Employees that it is subject to this New Act; (2) Inform Québec Employees of their language rights and available remedies; (3) Create a committee to support management responsible for fostering the use of French in the workplace (“Committee”). o This Committee must develop programs to generalize the use of French at the workplace (“Programs”) such as by: • Ensuring all management members and employees have a good knowledge of French; • Increasing, if needed, the number of people with a good knowledge of French; and • Using French communications, work instruments and systems, terminology, information technologies, etc. o Program communications can be in a Non-French Language but French must be used in an equivalent way in widely distributed communications and documents. | s. 10(1), (1.1), (2), (3) | OIC Date |
| Non-Québec Employers: Non-Québec Employers are required to comply with the above requirements around fostering the use of French in the workplace. | s. 58(1) | Second anniversary of the OIC Date | |
| Adverse treatment | Québec Employers: Québec Employers are prohibited from treating a Québec Employee adversely (e.g., termination, harassment, discipline) [and must actively prevent and stop adverse treatment] for reasons such as: • The Québec Employee speaks only French or lacks sufficient knowledge in a Non-French Language; • The Québec Employee has made a complaint to the Commissioner of Official Languages for Canada (the “Commissioner”); and • The Québec Employee participated in a Committee. | s. 11 | OIC Date |
| Not adverse treatment: Requiring a Québec Employee to know a Non-French Language is not adverse treatment if the Québec Employer: (1) Can demonstrate the Non-French Language is objectively required for the job, by: a. Assessing the actual language needs of the job; b. Verifying that the language other Québec Employees are required to know is insufficient for this job; c. Restricting the number of jobs that require knowledge in the Non-French Language; and (2) Outlines the reasons for the requirement in any job advertisement | s. 11(3), (4) | ||
| Non-Québec Employers: Non-Québec Employers are prohibited from treating a Québec Employee adversely as outlined above (though Non-Québec Employers need not outline in job postings its reasons for requiring knowledge in a Non-French Language). | s. 59(1), (3) | Second anniversary of the OIC Date | |
| Complaints & Penalties | Complaint: A current, former, or prospective (no requirement to have applied to a job posting) Québec Employee can make a complaint to the Commissioner about their current, former, or prospective Québec Employer’s failure to comply with this New Act. | s. 18(1), (1.1), (1.2), (2) | OIC Date |
| Penalties: The complaint can be referred to the Board, which has the power to make orders such as: • The reinstatement of a terminated Québec Employee; • A financial penalty to be paid to the Québec Employee; and • A requirement that the Québec Employer remedy the outcome of failing to comply. | s. 21(1) et art. 28 |
A Québec Employer does not (per s. 2(1) & s. 5 of the New Act) include employers:
- In the broadcasting sector or involved in broadcasting sector-related activities;
- With fewer than a specific number of employees (to be outlined in future regulations);
- That are subject to the OLA or are Canadian government corporations; and
- That are Indigenous councils, governments, corporations, or other entities.
What should we do? Though the effective date of the New Act provisions have not yet been published, employers are encouraged to proactively consider the following:
Québec Employers: should assess whether the Charter or the New Act will apply to their workplaces and prepare to provide notice of their choice. In addition, though the New Act’s regulations (when published) will define which employers may be Non-Québec Employers (such as based on the proportion of French speakers), both Québec Employers and potential Non-Québec Employers should consider whether they need to work with a translator or hire a communications manager with proficiency in French to ensure they comply with an employee’s rights to work in French. Such employers are encouraged to plan a review of any policies, practices, procedures not only around the right to work in French, but also in relation to job advertisements, employment contracts, and fostering the use of French at work (e.g., creating a Committee), to ensure compliance with the New Act.
Québec Employers and Non-Québec Employers: are required to take all reasonable steps to stop any adverse treatment of which is it aware, which is not restricted to only formal complaints about adverse treatment but could include instances in which the employer overhears a conversation between employees about adverse treatment. Though the OIC Date has not yet been announced, adverse treatment is still prohibited prior to the date on which this New Act comes into effect, so these employers should also train human resources and management staff to refrain from treating any employee adversely based on their lack of knowledge in a non-French language.
Not Federally-Regulated: Why should we care? Bill C-13 is intended to promote progression towards the equality of status and use in English and French across Canada and support for official-language minority communities. Though the changes enacted by Bill C-13 apply only to specific federally-regulated private businesses, provincially-regulated employers should be aware of any French-language obligations and keep track of any legal developments that may create new obligations to advance this goal of substantive equality between English and French in Canada.
For additional information regarding this HR Alert, please contact your Relationship Manager or the ADP Workforce Now Comprehensive Services team. This HR Alert, along with all the other HR Alerts and HR Tips issued by ADP Workforce Now Comprehensive Services, is also available in the HR Knowledge Library through the ADP Workforce Now Comprehensive Services Portal.
The information contained in this document is summary in nature and is intended to provide general guidance only. It should not be viewed as a replacement for legal or professional advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the province or territory. You should review applicable law in your jurisdiction and consult experienced counsel for legal advice. This content is the property of ADP Canada Co.
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