An Act respecting French, the official and common language of Québec,¹ assented to on June 1, 2022, and commonly referred to as Bill 96, is a major reform of the laws governing the use of the French language in Québec, including the Charter of the French Language² (the Charter). In particular, Bill 96 was to amend the Charter by requiring, as of September 1, 2022, that legal entities attach a certified French translation prepared by a certified translator to any proceeding in English. In addition, these amendments require the legal entity to pay the costs of the translation.

However, this new rule will remain suspended until further notice following the decision rendered on August 12, 2022, by the Superior Court of Québec in Mitchell v. Attorney General of Québec³ (Mitchell). Legal entities may therefore continue to file proceedings in English without the burden of translation until the Superior Court has ruled on the merits of the case. Here is an overview of the decision.

The decision

In Mitchell, the plaintiffs (five lawyers and a company operating in English) challenged the constitutional validity of sections 5 and 119 of Bill 96, which amend sections 9 and 208.6 of the Charter to impose a legal obligation on legal entities to draft all their proceedings in French, and if they are drafted in English, to attach a French translation certified by a certified translator. Without a translation, the proceeding cannot be filed at a court office. More specifically, the plaintiffs argue that sections 5 and 119 of Bill 96 violate section 133 of the Constitution Act, 1867,⁴ which provides equal access to the courts in Québec in English and French. In addition, they argue that the requirement for a certified translation by a certified translator, because of the costs and time it will require, would create a significant barrier to access to justice. For these reasons, the plaintiffs ask that the provisions be declared invalid and of no force or effect.

In addition, the plaintiffs sought a stay of the provisions at issue for the duration of the judicial review proceedings to suspend their application.

The Court found that the plaintiffs met the three conditions for obtaining the requested stay: (i) the existence of a serious issue to be tried; (ii) that they would suffer real and irreparable harm if the stay were denied; and (iii) that based on an analysis of the inconveniences to each party, their prejudice exceeds that of the opposing party.

1. The Court found that the arguments raised were sufficiently serious at this stage of the analysis. In particular, it considers the likelihood that these new requirements will impose additional barriers to access to the courts for English-speaking legal entities and their counsel.
2. The Court concluded that there was a serious risk of causing irreparable harm to certain organizations and their English-speaking representatives because the evidence casts doubt on the possibility of having English proceedings translated in a timely manner so as not to lose rights, especially in urgent matters (for example safeguard orders, provisional injunctions, but also applications for medical care authorizations). Furthermore, the impugned provisions would create additional and potentially excessive costs on English-speaking organizations with fewer financial means, which would compromise access to the courts.
3. The Court concludes that the balance of convenience weighs in favour of the plaintiffs: despite the objective of protecting the use of French, the provisions as drafted compromise access to the courts and justice. Indeed, the Court underlines that the absence of a certified French translation leads to the automatic rejection of a proceeding drafted in English, without consideration of the circumstances of the case.

Key takeaway

This decision temporarily suspends the coming into force of sections 9 and 208.6 of the Charter on the translation of proceedings into French, which were to come into force on September 1, 2022. It should be noted that the suspension was granted notwithstanding an appeal, which means it will have effect even if the government appeals the decision. Thus, the status quo persists, and it will remain possible, for the time being, for legal entities to file their proceedings in English only. The final judgment will determine whether these provisions will be declared invalid and of no force or effect under section 33 of the Constitution Act, 1867. The parties will have to agree on the required deadlines, but the Court mentioned the possibility of holding a trial in November 2022.

For more information about Bill 96 and the impacts it could have on you and your business, see our article here.

¹ Act respecting the official language and common language of Québec, SQ 2022, c. 14.
² CQLR c. C-11.
³ 2022 QCCS 2983.
⁴ Constitution Act, 1867, 30 & 31 Vict., c. 3.