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Insurers: Bill 96 May Affect Your Civil Litigation Proceedings

By Patrick Henry, from our Insurance Law Practice Group


November 9, 2021 — Bill 96, An Act respecting French, the official and common language of Québec, proposes a certain number of substantial modifications to Quebec civil procedure. The Bill is presently making its way through various stages of consideration at the National Assembly of Quebec and it is possible that additional changes will be made prior to the adoption of the final text. In the interim, we provide the following summary of the Bill, highlighting parts which may affect civil litigation proceedings.

After the adoption of the Bill by the National Assembly, it is provided that going forward, all legal proceedings emanating from a moral person (corporation, partnership, other than a physical person) and drafted in English (or any language other than French) must be accompanied, at the cost of the said person, by a “certified French translation” [s 5, amending s 9 of the Charter of the French language].

The Bill does not define what a certified translation is: however, it is reasonable to assume that the translation must be prepared and certified by an official translator who is a member of the Ordre des traducteurs, terminologues et interprètes agréés du Québec. It is therefore reasonable to assume that a translation certified by a lawyer or a person who is not a member of the Ordre will not be accepted.

The sanction for not respecting the above requirement is that a proceeding drafted in English and unaccompanied by a certified French translation cannot be filed with the a court or the secretariat of an adjudicative body [s 116, inserting s 208.6 of the Charter].

The Bill also specifies that a French version must be “immediately and without delay” appended to all decisions rendered in English by a judicial or administrative tribunal “where the judgment terminates a proceeding or is of public interest”. In such instances, the translation shall be at the expense of the relevant authority and not the parties [s 5, inserting s 10 of the Charter].

Should parties to a contract contemplate submitting disputes to arbitration to avoid these new rules, they may stipulate that the arbitration proceedings must be drafted solely in English without requiring the certified French translation. However, this is subject to the following reserves.

Firstly, once a party to an arbitration seeks homologation of the arbitration award, judicial procedural rules as provided above shall apply. Consequently, the request for homologation and the arbitration decision itself, if they are drafted solely in English, must be accompanied by a certified French translation.

Secondly, additional conditions apply when dealing with a contract of adhesion or a contract containing pre-established terms imposed or drawn up by one of the parties. In such instances, the co-contracting party must first take cognizance of the French version of the contract and then accept the English version if “such is their express wish” [s 44, amending s 55 of the Charter; s 151, amending s 26 of the Consumer Protection Act].

The Court of Appeal of Québec recently rendered an important decision that enables insurance companies to use multi-tiered dispute resolution “mediation- arbitration” clauses in order to more efficiently manage disputes relating to commercial policies (9369-1426 Québec inc. (Restaurant Bâton Rouge) c. Allianz Global Risks US Insurance Company, 2021 QCCA 1594) and which is the object of a separate newsletter prepared by our colleague Nick Krnjevic.

Consequently, if the Bill is adopted in its present form, it would be prudent to budget additional costs for certified translations. These costs may represent substantial amounts if the proceedings are long and complex or in the case of appeal factums, for example.

We will publish a follow-up newsletter once the Bill becomes law.

We sincerely thank our colleague Claude-Armand Sheppard, Ad. E., whose detailed analysis of the Bill was the basis for the present newsletter.