The application of the French language “Law 96” to transactional sites of foreign companies continues to make waves. La Presse has listed a dozen companies that have stopped selling their products and services in the province. To the chagrin of many Quebecers.
La Presse reported at the end of June that the British bookstore Black Library, which offers science fiction novels in several languages, including French, had advised its customers in Quebec that it could no longer sell its products to them in online – print novels, audiobooks and e-books – since the entry into force of “Law 96”.
This obliges merchants to offer their Quebec customers services in French. In the province, its application did not create too much of a stir. But its application to the transactional sites of foreign companies – and therefore its extraterritorial scope – is far from unanimous. While its constitutionality has not yet been tested in court.
Informed of the case of the Black Library, the Quebec minister responsible for the French language, Jean-François Roberge, said he was ready to examine the file.
“We are aware that if Quebecers want to buy books from a bookseller in another country, this will must also be respected,” he told La Presse. We will do the necessary follow-up. Two weeks later, the minister’s office had not yet decided. “We are continuing our checks,” he said.
The example of the Black Library is not anecdotal, our review reveals. La Presse listed a dozen traders who dumped Quebec because of its language policies, lack of resources or lack of interest.
This is the case of PetSmart, a brand of pet shops found in the United States and the rest of Canada. Last March, Maricel D., a customer of the site for a year and a half, noticed that all items had become “unavailable” after logging into her account. Like other Quebec customers, she learned the next day that she no longer had access to online orders.
“PetSmart is the only place I could buy Dr. Elsey’s wet food,” says the student, who still hasn’t found a satisfying equivalent.
Maricel had also accumulated $65 in loyalty points. Without notice, it was suddenly impossible for him to take advantage of it on the retailer’s site. The only way to sell them, he was told, was to go to a store located in another Canadian province.
PetSmart did not respond to our requests for information.
Nail Polish Canada and Yarn Canada, retailers operated by Pretty Good Ideas out of Vancouver, sell nail polish and knit accessories, respectively. Their customers who registered a billing or shipping address in Quebec were notified recently that their orders had been suspended “due to new French language obligations (Law 96)”.
In November 2022, popular New York book club Book of the Month announced that it was expanding its delivery service across Canada. Everywhere… except in Quebec, for legal reasons related to language.
Same situation for American companies The Goulet Pen Company, which sells fountain pens and inks; SwimOutlet, supplier of swimming equipment and nautical equipment; Williams Sonoma, specializing in kitchenware; Sally Beauty, beauty product distributor; or OtterBox, a major electronics accessories retailer that got the ball rolling by suspending deliveries to Quebec – a story revealed in a CBC News report last September.
According to the letter of the law, all online businesses that do not offer a website, customer service or contracts in French are prohibited in Quebec. A major challenge for many sectors, for example that of travel, where many reservations in hotels, monuments, museums or theaters, from Broadway to Berlin, are made only in English or in the local language. In theory, they could all decide to no longer do business with Quebec customers following a complaint or in order to avoid litigation.
“It is certain that there is a knot in the application of the law, tells us Me Vincent de l’Étoile, from the firm Langlois Avocats. Could an argument be made that the law limits international trade and transactions? Could it be argued that this is a federal jurisdiction? That there is deprivation for the person who lives in Quebec? That there is a legal violation of his rights? You should take a look…”
Although Bill 96 does not prevent trade between foreign companies and Quebec citizens, it requires that transactions be conducted in French, which raises the issue of the extraterritorial scope of the law.
“The Charter of the French Language and the Consumer Protection Act ensure that the contract is presumed to be concluded in Quebec and must be in French,” continues Me de l’Étoile. But in England, for example, there’s probably a similar law that says the contract is presumed to be made in England and subject to English law, so yes, there may be some knots in the application of the law…”
Vincent de l’Etoile observes, however, that the majority of companies are concerned “to respect the rules in the places where they do business”.
While “Bill 96” does not specifically mention e-commerce, it is now clear that the entire “contractual process” of a transaction made from Quebec “must be in French primarily, he explains. We’re talking about the website itself, but also about the contract, invoicing, delivery documents, tracking or customer service.”
This new load of translation and assistance requires the hiring of French-speaking staff. “Without judging the appropriateness of the approach, the costs can be astronomical,” notes Mr. de l’Etoile.
According to him, some sellers will continue to offer their products or services in Quebec without complying with the Revised Charter, but others, more sophisticated, with for example strict rules of governance, “just won’t want to go to a place disobeying local laws.”
Me Antoine Aylwin, of the Fasken firm, believes for his part that the businesses at fault could find themselves helpless in the event of a commercial dispute. “If a membership contract is not provided in French, the clauses may not be enforceable,” he explains. If a company wants to invoke a limitation of liability, for example, it might not be able to enforce it against the customer. »
Beyond the regulatory context, the two lawyers plead in favor of francization with their foreign clients for the sake of commercialization and marketing. “If we really want to develop the Quebec market, we must have skills in French, because otherwise we will be a marginal player,” believes Me Aylwin.
The Ouwah fabric store, located in the Cree land of Chisasibi, in Nord-du-Québec, estimates that it has lost $130,000 in sales since last September due to “Law 96”. One of its main suppliers, the Alberta company 49 Design, stopped delivering to Quebec because it was no longer able to meet the obligations of the Charter of the French language.
As a wholesaler and distributor in Quebec, the store “placed orders, each time, from $20,000 to $100,000,” says Michel Goyette, Ouwah’s accountant and partner of owner Edward Brian Webb.
“We have a lot of difficulty understanding [their decision] because the managers of 49 Design are also Aboriginal. Mr. Webb’s store is on an Aboriginal reserve, Category 1 territory. The law does not apply. »
Mr. Goyette argued his case with the Calgary company, but the company relied on the advice of its legal counsel; it had to cease operations in Quebec in September 2022. “We hope this is only temporary, but as a company with more than 5 employees, we are required to follow the law,” wrote 49 Design (sometimes also writes 49 Dzine) on his Facebook page.
The Alberta fabric supplier, which has annual sales of around $2 million, has relied on a “small but loyal” pool of Quebec customers since 2020.
Its owner, Nathan Rainy Chief, explains that he cannot afford to hire an employee to provide constant French-speaking service to Quebecers, who account for 5% of the site’s transactions.
A member of the Kainai Nation, of the Blackfoot Confederacy, the entrepreneur explains that he is in favor of laws that protect minority languages and cultures. “Unfortunately, for Indigenous people, the different jurisdictions, the different laws that apply are conflicting,” he laments.
The reform of the Charter of the French language in Quebec, underlines the owner of 49 Design, is an example among many others. He recalls that the United Nations Declaration on the Rights of Indigenous Peoples Act came into force in June 2021. Under federal jurisdiction, it states in particular that First Nations “shall freely pursue their economic development”.
“It’s an international instrument supported by almost every nation in the world,” says Nathan Rainy Chief. It is clear that the declaration protects the economic rights of First Nations, their rights to operate businesses before colonial administrations come into play.”
In May 2022, Ghislain Picard, Chief of the Assembly of First Nations of Quebec-Labrador, said in a press release that the adoption of Bill 96 proposed by the Legault government was “a big step backwards” and called “to an uncertain future reconciliation with First Nations”.
Pending possible relaxations, Nathan Rainy Chief does not see how 49 Design will soon be able to serve Quebecers. “There are challenges that we haven’t tackled yet, and I don’t know when or if we can. We are certainly trying to find workarounds, but it is very difficult. It is a very well written law. »
Mr. Goyette, an accountant at Ouwah, says his requests to Legault government officials for clarification and adjustments regarding Bill 96 in Indigenous territories have gone unheeded.
“I hope the government will take the time to reflect,” he said. My goal is not so much to get 49 Design to resume deliveries to Ouwah, but to help small businesses that are in a difficult economic situation. It’s one more bump in the road they don’t need. »
