Why Did the Superior Court of Québec Stay Some Sections of Bill 96?

On August 12, 2010, the Superior Court of Québec stayed the application of two sections of the Act respecting French, the official and common language of Québec (the “Act”) that required a certified French translation for all English proceedings.

In Mitchell v. Procureur général du Québec, the Superior Court, in the words of Justice Chantal Corriveau, granted a stay of sections 5 and 119 of the Act.

These provisions require “legal persons” (companies, organizations, associations and institutions) filing proceedings written in English to attach a certified French translation. These provisions have been challenged by several plaintiffs as being contrary to the Constitution Act, 1867.

An Act That Got People Talking

The Act was passed by the National Assembly on May 24, 2022 and received Royal Assent on June 1, 2022.

As explained in its preamble, the Act “affirms that the only official language of Québec is French.” It also "affirms that French is the common language of the Québec nation”. Accordingly, the Act constitutes a reform of the Charter of the French Language (the “Charter”).

The Act also creates a Minister of the French Language and provides for the appointment of a Deputy Minister of the French Language. It also calls for the appointment of a French Language Commissioner whose purpose will be to investigate whether businesses operating in the province of Québec are doing so in conformity with the Charter.

Furthermore, the Act sets out penalties for Charter violations, including stiffer penalties for repeat offences.

The scope of the Act is broad. It affects not only the relationship between government and individuals, but also the commercial and real estate industries, as well as employment, insurance, immigration, health, and education. It also entails significant procedural consequences.

Specifically, section 5 of the Act (which amends section 9 of the Charter) states that “[a] French translation certified by a certified translator shall be attached to any pleading drawn up in English that emanates from a legal person. The legal person shall bear the translation costs.” As for section 119 (which amends section 208.6 of the Charter), it provides that “[a] pleading to which, in contravention of section 9, no translation certified by a certified translator is attached cannot be filed [...]”.

First Setback in the Superior Court of Québec

Several plaintiffs have filed an appeal for judicial review seeking to invalidate sections 5 and 119 of the Act, which are alleged to be contrary to the Constitution Act, 1867, particularly section 133, which provides that “[e]ither the English or the French Language may be used by any Person [...] and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.”

Pending a final judgment on the merits, the plaintiffs have filed an application for a stay of sections 5 and 119 of the Act during the proceedings.

For a stay to be granted, a defendant must show:

• that a serious issue exists to be tried;
• that irreparable harm will result if the stay is denied; and
• that, on a balance of convenience, the damage to the defendant outweighs the damage to the other party.

The Superior Court, in the words of Justice Chantal Corriveau, found that each of these criteria was met.

First of all, she found that the applicants' constitutional arguments were neither frivolous nor dilatory and were serious enough, particularly “[t]he argument that the impugned provisions violate the principle of substantive equality of English and French in that an additional impediment to access to the courts would be imposed on English-speaking legal persons and their lawyers” (our translation).

Secondly, the Superior Court found that the plaintiffs' supporting evidence cast doubt on the availability, effectiveness and affordability of translation services. It also “[e]stablishes the likelihood of irreparable harm at least in the case of emergency or expedited proceedings,” “in relation to safeguard orders, provisional or interlocutory injunctions, seizures before judgment, and Anton Piller-type applications...” (our translation).

The Act raises concerns regarding access to justice, especially for small and medium-sized businesses seeking to exercise their rights in English.

The provisions challenged by the application will cause irreparable harm to a number of corporations and their English-speaking representatives.

Finally, the Superior Court found that the scales of inconvenience tipped in favour of the applicants, as sections 5 and 119 of the Act “may create an insurmountable obstacle comparable to a denial of justice, as already discussed in the case of emergency proceedings.”

A Matter to Be Followed Closely

While the legal saga surrounding the Act is still in its early stages, some of its sections have already been put on hold, notwithstanding any appeal. The Superior Court is expected to proceed on the merits in November 2022. Until then, English-speaking businesses won't have to have their proceedings translated into French - at least for the time being.

Should you have any questions regarding the impact of this decision on your legal affairs, please do not hesitate to contact our litigation team who will be pleased to advise you.