November 20th, 2012
An interesting dispute is afoot in the province of Quebec that involves the Charter, language, politics, commerce, and the market. Quebec’s Office Québécois de la langue française (“OQFL”), the watchdog agency responsible for ensuring compliance with the Charter of the French Language, CQLR c C-11 [Charter of the French Language] (s. 159), recently launched a microsite insisting that all enterprises in the province modify their brand names to incorporate the French language.
Six of the province’s largest retailers—Walmart, Coscto, Best Buy, Gap, Old Navy, and Guess—have initiated proceedings to challenge the move, primarily on the grounds that while the recent pressure is a major change in policy, the law itself has not been amended.
In this post, I will canvass some of the arguments the retailers will wish to advance, evaluate their respective merits, and discuss some of the likely (and less likely) outcomes.
Introduction: Politics and the Law
The dispute at hand centres entirely on s. 63 of Bill 101, or as it is properly known, the Charter of the French Language. In English, the section reads:
The name of an enterprise must be in French.
As a matter of course, the requirement was not enforced against trademarked names such as McDonalds or Walmart and these entities have carried on operations in Quebec with the same signage and under the same name as they do in, say, Ontario. As CTV reports, other businesses have taken steps to change their name in Quebec—Kentucky Fried Chicken, for example, is known in Quebec as Poulet Frit Kentucky.
It is hardly cynical to suggest the Government of Quebec’s decision to take a harder line with business enterprises is a product of politics. In fact, Premier Marois made her intentions very clear during the days leading up to the September 4 election by calling for a “stronger, more coherent and more ambitious” language bill, while also giving the OQFL greater power to apply the existing rules. The apparent purpose of strengthening the province’s language laws appears to lie in an interesting trend revealed by the results of the 2011 census—the use of French in Montreal is on the decline generally, but most acutely in the workplace.
In an effort both to communicate its intention to enforce the strict letter of the law, and to give enterprises assistance in altering their name and signage, the OQFL is leading a campaign entitled “Respect for the Law.” The OQFL offers a number of different ways an enterprise can sufficiently incorporate French into its name, ranging from a literal translation, an accompanying slogan or generic description of the business in French, or having signage with both the French and English names of the business (so long, of course, as the French title is predominant).
The retailers behind the challenge reject the OQFL’s ability to enforce Bill 101 in this way and will likely put forth any number of administrative law arguments to do so. As University of Montreal law professor Paul Daly has already previewed these arguments on his (highly recommended) administrative law blog, I will focus here on a potential challenge based on s. 2(b) of the Charter of Rights and Freedoms.
Commercial Speech and Bill 101
Section 2(b) of the Charter of Rights and Freedoms reads as follows:
Everyone has the following fundamental freedoms:…(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
As we know, the courts have interpreted s. 2(b) extremely broadly, so as to protect any form of non-violent activity that conveys or seeks to convey meaning (R v Keegstra,  3 SCR 697). What is more, it is settled law that s. 2(b) extends to include “commercial expression”—advertising and other communication between businesses and consumers (Ford v Quebec,  2 SCR 712 [Ford], para 59). Finally, as a general proposition, government action that seeks to regulate the content of the expression will almost always be found to infringe s. 2(b). As is often the case in s. 2(b) cases, most of the difficulty arises at the s. 1 stage, when the court must determine if the infringement is a reasonable limit as can be demonstrably justified in a free and democratic society.
Turning to the facts, then, the retailers would likely have little problem establishing that their name, logo and signage is a form of expression, and that s. 63 of the Charter of the French Language is an attempt to control the content of that expression. Whether or not the provision can be upheld under s. 1 is a more difficult question, though a 1988 decision of the Supreme Court offers some guidance.
In Ford, a group of applicants led by a Montreal wool merchant challenged the validity of a number of Bill 101’s provisions. For our purposes, the Supreme Court’s handling of two provisions of Bill 101—ss. 58 and 69, as they were then; both have since been repealed—shed light on how the court might view the currently challenged provision at the s. 1 stage.
In that case, the impugned provisions required that “public signs and posters and commercial advertising shall be solely in the official language,” and further that “only the French version of a firm name may be used in Quebec” (emphasis added, Ford, para 7). Put another way, the expressive activity in question was prohibited in all languages other than French. With respect to the proportionality of these measures and the objective of protecting and promoting the French language, the top court was unequivocal:
In the opinion of this Court it has not been demonstrated that the prohibition of the use of any language other than French in ss. 58 and 69 of the Charter of the French Language is necessary to the defence and enhancement of the status of the French language in Quebec or that it is proportionate to that legislative purpose…exclusivity for the French language has not survived the scrutiny of a proportionality test and does not reflect the reality of Quebec society (Ford, para 73).
The language of the section we are concerned with has been stripped of any notion of exclusivity altogether. “The name of an enterprise must be in French,” reads s. 63, but the enterprise may also display its name in English or Mandarin or Italian. In fact, the OQFL appears to be encouraging this as the watchdog suggests businesses display French alongside another language and leaves businesses with no fewer than four different methods of complying with the law. Perhaps most important, this scheme has already been tacitly endorsed by the Supreme Court (albeit in obiter) when in Ford the majority held:
French could be required in addition to any other language or it could be required to have greater visibility than that accorded to other languages. Such measures would ensure that the “visage linguistique” reflected the demography of Quebec: the predominant language is French. This reality should be communicated to all citizens and non‑citizens alike, irrespective of their mother tongue (Ford, para 73).
Suffice it to say that the a court of law would likely have a much more difficult time grappling with the s. 1 analysis when it comes to the current, non-exclusive business naming provision of the Charter of the French Language.
Conclusion: Language Politics and the Market
Assume, for a moment, that during the course of the retailers’ litigation they advance a s. 2(b) argument similar to the one I have laid out above; also assume that they are successful in satisfying a court that s. 63 of Bill 101 infringes on their expressive freedoms and cannot be saved by s. 1. The Government of Quebec is then left with at least two widely divergent options.
On the one hand, the government could amend the legislation to include a “notwithstanding clause” pursuant to s. 33 of the Charter of Rights and Freedoms. This is not so farfetched; in fact, it was precisely the step Premier Bourassa’s government took in 1988 in response to the Supreme Court’s ruling in Ford (recall that, in 1993, after intense pressure from the UN Human Rights Committee, Bourassa’s government re-wrote the legislation and left out a notwithstanding clause). This would be a bold and decisive step towards reasserting the French language in Quebec, though perhaps not so attractive an option for Premier Marois given that she currently leads a minority government.
The second option is to let the market decide the appropriate level of French in commercial names, signage, and logos. As a matter of prudence, KFC, Starbucks, and Second Cup, among others, have opted to conduct business under a French name in Quebec. Should Best Buy refuse to incorporate French insofar as the law permits them to, then why not let Quebecers decide what the enterprise’s fate shall be? The Montreal Gazette recently interviewed Harold Simpkins, a marketing expert at Concordia University’s John Molson School of Business, on this very point (and you can listen to the interview here).
In any event, because of the politics, culture, and law involved, the retailers’ litigation is a file to be watched closely.[filed: List of cases]