Companies don't usually seek legal advice over hypothicals, especially in this case where the OQLF did nothing for thirty-five years.
At any rate the OQLF has ripped a page out of the Camille Laurin playbook, in pursuing a legal position that is not defensible in the belief that whether their legal position is right or wrong, losing is as good as winning.
Either way they will be seen as the ultimate defender of the French language and if and when the agency suffers the inevitable court defeat, they will throw up their hands as a the ultimate victim and declare that it's not their fault.
The big retailers that received letters threatening that their Francisation certificate will be withdrawn if they don't knuckle over, ARE NOT rolling over, and intend on fighting for their good name in court, something the OQLF had hoped would not happen, but accepted that could. They are used to small merchants buckling over and have perhaps met their match with the big boys.
One of the companies involved leaked a story to Le Devoir indicating that the powerhouse law firm of Norton-Rose, has given a written opinion to its client that the OQLF is misinterpreting the law.
The Le Devoir story goes on to say that the OQLF can expect a powerful legal counter-attack by one of the most capable law firms in Canada.
This isn't going to be a David and Goliath fight, the OQLF will be facing millions of dollars in legal bills as the fight will be protracted.
Ultimately, whichever side loses, will appeal and it's likely the Supreme Court will be asked to rule on the matter in about five long years.
What's important is the interim, where if the OQLF strips the companies of their French certificate unilaterally, we can expect those companies affected to seek injunctive relief, that is to say, a judicial stay until the case is ultimately resolved.
The companies will have ample grounds to win an injunction, since stripping a company of a French certificate based on the same law under which the 'OQLF issued it, is problematic, especially since the clauses referred to, haven't changed.
If the companies were 'non-compliant' years ago, why did the OQLF issue the certificate then?
A judge will have to consider the fact that even if the OQLF's position is somehow validated in law, its tolerance of the breach for so many years affords the companies an acquired right.
At any rate, there is ample grounds to allow an injunction barring any unilateral action by the OQLF.
If the court does grant such an injunction, it will be a devastating setback to the OQLF, a situation where they lose the first critical round.
The Le Devoir article, based on deliberately leaked information spells out the companies' position rather succinctly, they'll go down fighting with the support of the Retail Council of Canada, which is backing the companies to the hilt and devoting their considerable weight to the side opposing the OQLF initiative.
There are some interesting nuggets that I've mined in relation to the case.
It seems that the OQLF initiative may violate the North American Free Trade Agreement(NAFTA)
Article 1708: Trademarks LinkMartin Bergeron ,a spokesman for the OQLF sounded somewhat guarded in the defending the OQLF's legal position saying;
10. No Party may encumber the use of a trademark in commerce by special requirements, such as a use that reduces the trademark's function as an indication of source or a use with another trademark.
"We have our jurists, we have conducted our research, and we're very comfortable with our legal position.
("On a nos juristes, on a fait nos vérifications et on est très à l’aise avec notre position juridique », a assuré Martin Bergeron.")Not exactly a statement ringing with confidence.
Remember what he said just two months ago.
Readers should be reminded that a previous Quebec government was already advised that it was on shaky grounds if it tried to force modifiers on the public."We verified our legal interpretation before proceeding. We understand others don't have the same interpretation as us.("On a vérifié notre interprétation juridique avant d'aller de l'avant. On comprend qu'il y a des gens qui n'ont pas la même interprétation que nous», a-t-il lancé."
Two final thoughts.
Although, I believe the OQLF will lose this legal battle because of the flawed way they are directly imposing modifiers on trademarks, there is more than one way to skin a cat.
A slightly different approach would have yielded the same result but would have required an amendment to Bill 101.
What is that amendment?........Sorry, I not going to help make their case.
At any rate, I'm not sure if the OQLF will be happier if they win or happier if they lose. After all the image of the downtrodden and abused francophone nation at the hand of the evil overlords in the RoC, is a role they have relished ever since the birth of the quite revolution.
And now, just a clarification;
There seems to be a misunderstanding of the powers of the OQLF which is being circulated in the press.
The OQLF CANNOT fine anybody, the only action they can take undertake unilaterally is to revoke a French language certificate from a company holding one.
When we are told in the press that companies can be fined up to $25,000, it isn't the OQLF that can assess the fine, only the court.
The OQLF must refer offending cases for public prosecution and it is the court that will determine the penalty after a guilty verdict. The law provides for a maximum fine of $25,000 which a judge may or may not impose.
No OQLF inspector can walk into an establishment and issue a ticket like a police officer.
I've come out of my vacation to offer a reader platform for this very important issue.